On 18 March 2022, the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace has been gazetted by the Department of Labour.
Although the Employment Equity Act does make provisions for laws regarding equity and fairness in the workplace, the newly published Code is even more focused on this topic and has the clear objective of eliminating all forms of harassment in the workplace and in any activity linked to, or arising out of work.
The Code provides guiding principles on the prevention, elimination and management of harassment and goes on to state that employers are under obligation to take proactive and remedial steps to prevent all forms of harassment in the workplace, stating that employers should adopt a zero-tolerance approach as it relates to any form of harassment. In terms of this Code, employers are required to adopt a harassment policy in the workplace as well as procedures that should be followed to deal with harassment and that would enable the resolution of problems in a sensitive, confidential, efficient, and effective manner.
It should be noted that the Code recognises that the perpetrators and the victims of harassment may include owners, employers, managers, supervisors, employees, clients or customers, suppliers, contractors, and any other individual that has dealings with the business. It is clear that the Code regards any form of workplace harassment as an extremely serious offence, regardless of who the perpetrator is. From the employment relationship perspective, is important to recognise that employers are not the only party that can be guilty of harassment in the workplace, as is often the misconception. An employee could be equally guilty of harassment in the workplace.
The term ‘harassment’ is not currently defined in the Employment Equity Act, however the new Code of Practice defines it as:
- Unwanted conduct, which impairs dignity;
- Conduct that creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences;
- Relating to one or more grounds of which discrimination is prohibited in section 6(1) of the Employment Equity Act.
“Harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse gender-based abuse and racial abuse. It includes the use of physical force or power, whether threatened or actual, against another person or against a group or community.”
Different types of harassment
The Code of Practice includes several specific examples of harassment that could potentially be flagged in the workplace.
Some of these types of harassment are obvious – such as racist remarks, insulting statements, physical abuses, or sexual advances – however, the Code of Practice also highlights a much wider range of indirect actions which can be seen as harassment such as gossip or making jokes about another employee.
Some of the examples of harassment highlighted in the Code include:
- Slandering or maligning an individual or spreading rumours maliciously;
- Conduct that humiliates, insults, or demeans;
- Withholding work-related information or supplying incorrect information;
- Sabotaging or impeding the performance of work;
- Persecution such as threats, and the inspiration of fear and degradation;
- Intolerance of psychological, medical, disability or personal circumstances;
- Surveillance of an employee without their knowledge and with harmful intent;
- Use of disciplinary or administrative sanctions without objective cause, explanation or efforts to problem-solving;
- Abuse or selective use of disciplinary hearings;
- Pressuring an employee to engage in illegal activities or not to exercise legal rights;
- Pressuring an employee to resign.
Other types of passive-aggressive harassment may include:
- Negative gossip;
- Negative joking at someone’s expense;
- Condescending eye contact;
- Facial expressions;
- Mimicking to ridicule;
- Deliberately causing embarrassment or insecurity; and
- Deliberately sabotaging someone’s career performance.
It becomes clear that harassment is a wide net with many acts that could potentially fall within its ambit. With the introduction of the latest Code of Good Practice, we are sure to see more perpetrators in the workplace being brought to justice for their actions as it relates to harassment.
Contact Invictus Group on 0861 737 263 for assistance with designing a workplace harassment policy that fulfills the requirements of the latest Code, as well as advice on how to deal with issues relating to harassment in the workplace.