Harassment in the Workplace 2.0

The Department of Employment and Labour has on 18 March 2022 published[1] the most recent Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. This Code serves as a repeal of the previous Code of Good Practice for the Handling of Harassment in the Workplace, which was first published on 4 August 2005.

The latest Code deals with harassment in a very broad sense by making provision for underhanded and/or subliminal acts of harassment which would previously not have been covered under the Code. To this end, the Code provides for acts which are inherently difficult to prove and would in all likelihood leave the victim feeling helpless and would have had significant impact on the mental well-being of employees.

The following acts are considered to be harassment under the new Code:

1. Shaming
2. Insults
3. Constant negative judgement and criticism
4. Slandering or maligning
5. Maliciously spreading false rumours
6. Conduct which humiliates, demeans or insults
7. Surveillance without knowledge and with harmful intent
8. Selective discipline
9. Passive aggressive behaviour including:
   1. Condescending eye contact, facial expressions or gestures
   2. Invisible treatment
   3. Marginalisation
   4. Professional isolation
   5. Sarcasm
   6. Deliberately sabotaging someone’s career performance

In terms of sexual harassment, the Code has also broadened the scope to include verbal conduct which may be directly or indirectly expressed such as watching, advances, suggestions, comments about a person’s body or even sex-related jokes.

Non-verbal conduct now also includes unwelcome gestures or the sending of unwelcome sexually explicit messages electronically.

The Code further makes provision for harassment based on racial prejudice involving racial stereotypes or profiling.

The most important aspect of the new Code is the heavy emphasis on the impact which the alleged harassment has on the victim and, additionally, in circumstances where the conduct was unreported, whether it can be said that the harasser ought to have known that such conduct would be unwelcome.

In addressing all forms of harassment in the workplace, employers should adopt a zero-tolerance approach which would include the adoption of a harassment policy, mirroring the guidelines set out in the Code. In addition, an employer remains under obligation to consult with all interested parties and explore all necessary steps in eliminating harassment in the workplace in order to avoid being held vicariously liable in terms of section 60 of the Employment Equity Act no. 55 of 1998.

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[1] Government Gazette No. 46056.