Nadia Froneman, partner at Eversheds Sutherland unpacks and explains
The Code provides guidelines on:
i) preventing and eliminating harassment in the workplace; and
ii) human resources policies, procedures and practices related to harassment and procedures to deal with harassment and prevent its reoccurrence.
In doing so, it outlines (amongst other things) who the perpetrators and victims of harassment may be; what constitutes harassment and what steps employers ought to take to eliminate and prevent harassment from occurring in their workplaces.
Victims and perpetrators of harassment
Importantly, the Code recognizes that harassment may occur not only by managers and/or employees as against subordinates and/or fellow employees but that the victims and perpetrators of harassment may include, amongst others:
· Job applicants;
· Volunteers;
· Clients and customers;
· Suppliers; and
· Others having dealings with a business.
Therefore, employers whose businesses interact with the public and/or who are client facing must be mindful that its employees may not only be subject to harassment by their fellow employees, but also the business’ clients, for example. If this is the case, employers are obliged to take steps to deal with such harassment and prevent its reoccurrence. An employer’s failure to do so may be considered to contribute to a hostile working environment.
What constitutes harassment
Now that we know who can be victims and perpetrators of harassment in a workplace, it is critical to understand what “harassment” is. Harassment is:
- Unwanted / unwelcome conduct;
- Which is either repeated or serious;
- Which impairs a person’s dignity; and
- Which creates a hostile or intimidating work environment.
The Code recognises different types of harassment as follows:
- Physical conduct;
- Verbal conduct; and/or
- Psychological conduct.
Some examples of less obvious forms of harassment set out in the Code have caused employers to be concerned as they include types of conduct which were not expressly recognised as harassment before and include, for example:
- Spreading rumours maliciously;
- Conduct which humiliates, insults or demeans an employee;
- Withholding work-related information or supplying incorrect information;
- Sabotaging or impeding the performance of work;
- Excluding an employee from work-related activities;
- Intolerance of psychological, medical, disability or personal circumstances;
- Passive-aggressive or covert harassment could include, amongst other things: negative joking at someone’s expense; sarcasm; condescending eye contact, facial expressions or gestures; mimicking to ridicule; invisible treatment; social exclusion and deliberately sabotaging someone’s dignity, well-being, happiness, success and career performance.
The concern is that managers and/or employees may conduct themselves in such a way that constitutes harassment as recognized by the Code without realising that their conduct constitutes harassment. For example, something may be said or done ingest with a view to teasing an employee as a form of endearment but may be perceived to be harassment either by the employee or others.
Importantly, it is not necessary in terms of the Code to establish the intention or state of mind of the perpetrator in order to prove harassment. This makes it all the more concerning for employers.
What then should we make of workplaces where the culture is to joke around with one another and tease one another, a culture with which many employees are comfortable and, in fact, enjoy? In our view, all employees (including managers) should be trained on the Code, particularly with regard to:
· what constitutes harassment;
· what may be well-received by one employee may not be well-received by another;
· what steps, including informal steps, employees can take in order to air their concerns and/or advise potential perpetrators of the fact that they do not receive their conduct well in order that potential conflicts can be addressed and managed before any formal action is required.
In conclusion, the new Code is nothing to be afraid of. Employers should just ensure that their workforce understands the Code and that any complaints/concerns are addressed expeditiously in terms thereof.
Nadia Froneman
Partner
Eversheds Sutherland
Refiloe Moloi
Candidate Attorney
Eversheds Sutherland
