South Africa’s Code of Good Practice on the Prevention and Elimination of Harassment, effective since 18 March 2022, provides a comprehensive framework for addressing harassment under the Employment Equity Act (EEA). The Code expands the definition of harassment beyond sexual misconduct to include bullying, cyberbullying, gender-based violence, and discrimination based on race, sex, sexual orientation, or other prohibited grounds. Employers and employees must understand their roles in fostering a harassment-free workplace, as non-compliance risks legal consequences and undermines organisational performance.
Key Provisions of the Code
Scope of Harassment:
The Code defines harassment broadly, encompassing:
Sexual harassment (unwanted advances, jokes, or threats).
Bullying (physical, verbal, or psychological abuse).
Cyberbullying (online stalking, derogatory messages).
Discrimination linked to race, gender, disability, religion, or other protected characteristics.
There are more than 18 types of behaviours and or conduct which is regarded as harassment:
Verbal:
Unwanted sexual or romantic advances
Sexual jokes, comments, or innuendos
Comments about someone's body or appearance
Spreading sexual rumours
Asking intrusive questions about someone's personal/sexual life
Making kissing sounds or whistling
Using demeaning terms or slurs
Physical:
Unwanted touching, hugging, or kissing
Blocking someone's path or cornering them
Standing too close or invading personal space
Inappropriate physical contact disguised as accidental
Following or stalking
Visual/Non-verbal:
Staring or leering
Making sexual gestures
Displaying sexually explicit images
Sending unwanted sexual messages or images
Inappropriate exposure
Drawing or making sexual graffiti
Power-based:
Offering work benefits in exchange for sexual favours
Threatening negative work consequences for refusing advances
Using position to coerce sexual activity
Making inappropriate conditions for promotion/advancement
Retaliating after rejected advances
Digital/Electronic:
Sending unwanted sexual emails or messages
Sharing inappropriate content via work devices
Making sexual comments on social media
Taking/sharing photos without consent
Making unwanted video calls
Importantly:
Both subtle and overt behaviours can constitute harassment
It can happen to/by any gender
A single incident can be harassment if severe enough
Intent doesn't determine whether something is harassment - impact matters
Power differentials often play a key role
All employees have the right to a harassment-free workplace
Harassment by employers, employees, clients, or third parties is prohibited.
Employer Obligations:
Employers must adopt a zero-tolerance policy and:
Develop a harassment policy in consultation with employees, outlining prevention measures, grievance procedures, disciplinary actions, and support for victims (e.g., counselling, extended sick leave).
Train employees on the policy and legal consequences of harassment.
Guarantee confidentiality during investigations and protect victims from retaliation.
Conduct risk assessments to identify vulnerabilities in workplace practices.
Failure to comply may render employers vicariously liable for harassment incidents.
Impact of Harassment
Harassment harms both individuals and businesses:
Employees: Experiences of harassment correlate with reduced productivity, absenteeism, and long-term psychological distress.
Employers: Harassment undermines trust, increases turnover, and risks reputational damage. Non-compliance with the EEA may result in fines or loss of a certificate of compliance, which is critical for state contracts and tenders.
Steps to Address Harassment
For Employers:
Implement the Code: Draft a harassment policy, communicate it widely, and ensure managers enforce it consistently.
Investigate Complaints: Follow formal or informal grievance procedures, maintaining confidentiality and fairness. Consult the Employers’ Organisation for Hairdressing, Cosmetology, and Beauty (EOHCB) during the investigation.
Provide Support: Offer counselling, temporary transfers where possible, or extended leave to victims.
For Employees:
Report Incidents: Use internal grievance channels or escalate to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court if unresolved.
Document Evidence: Keep records of incidents, including dates, witnesses, and communications.
Seek Legal Advice: Consult labour experts or trade unions if harassment persists despite reporting.
Legal Remedies and Compliance
Employees may pursue internal disciplinary processes or external litigation via the CCMA or Labour Court, which can order compensation, reinstatement, or policy changes. Employers must ensure compliance with the EEA to retain their certificate of compliance, a prerequisite for government contracts.
The Code of Good Practice underscores South Africa’s commitment to equitable workplaces. Employers who proactively address harassment not only avoid legal risks but also foster productivity and loyalty. Employees, meanwhile, must assert their rights to a safe environment. Together, adherence to the Code ensures compliance with the EEA and promotes a culture of respect and dignity.
Should you wish to obtain a draft zero-tolerance Workplace Harassment Policy, please consult your EOHCB representative.
