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The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace includes sexual harassment

  1. The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, 2022 (the Harassment Code) came into effect on 18 March 2022 and has repealed the 2005 Code on Sexual Harassment.
  2. The Harassment Code provides broader protection against all forms of harassment in the workplace and is not limited to sexual harassment as it now for instance includes physical and psychological harassment and harassment of employees because of their race, ethnicity or social origin as well as bullying in its various forms including cyber-bullying. Examples of harassment are listed such as withholding work-related information or supplying incorrect information; sabotaging or impeding an employee’s performance of work; intolerance of an employee’s psychological, medical, disability or personal circumstances; surveillance of an employee without their knowledge and with harmful intent; pressuring an employee to engage in illegal activities or not to exercise legal rights; or pressuring an employee to resign.
  3. The above protection against harassment applies in any situation in which the employee is working, or which is related to their work. This would, for instance, include attending work related trips, training, events or social activities; work related communications; employer provided accommodation; when commuting to and from work in transport provided by or controlled by the employer; the location of employees who are required to work virtually albeit from their homes or another location etc.
  4. The Harassment Code provides that harassment can be ongoing or be based on a single instance or event provided that it is of a serious nature.
  5. Specifically in relation to an employer’s obligations regarding sexual harassment in the workplace, the following changes from the previous code should be noted:
    1. Sexual harassment is defined as being “unwelcome conduct of a sexual nature, whether direct or indirect, that the perpetrator knows or ought to know is not welcome.” Sexual harassment may be offensive to the complainant, make the complainant feel uncomfortable or cause harm or inspire the reasonable belief that the complainant may be harmed. Sexual harassment may interfere with the work of the complainant although it need not necessarily do so. Sexual harassment violates the rights of an employee and constitutes a barrier to equality in the workplace.
    2. The test for sexual harassment has been changed from “unwelcome” conduct of a sexual nature to “unwanted” or “unacceptable” conduct of a sexual nature. “Unwelcome conduct” is however still referred to throughout the Harassment Code.
    3. Same sex sexual harassment is also included and can amount to discrimination on the basis of sex, gender, sexual orientation and gender-based harassment.
    4. Perpetrators and victims of harassment now extend beyond employees and employers and may include owners, managers, job applicants, interns, apprentices, volunteers, clients, customers, suppliers, contractors and any other persons having dealings with the business.
    5. The examples of the different forms of sexual harassment have been elaborated on and now also mentions creating or permitting a hostile working environment in addition to victimisation, quid pro quo harassment and sexual favouritism.
  6. Another important provision of the Harassment Code is found in clause 10.3 which specifically provides that “[f]ailure to take adequate steps to eliminate harassment once an allegation of harassment by an employee has been submitted within a reasonable time will render the employer vicariously liable for the conduct of the employee in terms of section 60 of the EEA. This is the case even if the harassment consists of a single incident.”
  7. Employers should therefore ensure that their current harassment, and their sexual harassment policies in particular, are updated in line with the new Harassment Code.

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