South Africa has legislation prohibiting sexual harassment in the workplace. The Employment Equity Act 55 of 1998 (“EEA”) recognises harassment, including sexual harassment, as a form of unfair discrimination if it is based on any of the prohibited grounds including but not limited to race, gender, sex, sexual orientation, ethnic or social origin. The EEA regards all forms of harassment as a barrier to equity and equality in the workplace.

The new Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (“the Harassment Code”) was published by the Minister of Employment and Labour on 18 March 2022 under the EEA. The Harassment Code provides practical guidance on how to identify, prevent, and address harassment in the workplace, including sexual harassment.  The Harassment Code outlines the factors required to establish sexual harassment, which generally involves unwanted conduct of a sexual nature that impacts the dignity of the employee, as well as a test for sexual harassment.

Prior to the Harassment Code, several previous codes pertaining only to sexual harassment (as opposed to harassment generally) were in force.  They provided similar guidelines in relation to what constitutes sexual harassment, including examples of the behaviour that may constitute sexual harassment, and similar tests to the test currently contained in the Harassment Code.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

In terms of the EEA and the Harassment Code, employers must take steps to promote equal opportunity in the workplace, through the elimination of unfair discrimination, in any employment policies or practice. Specifically, employers have the obligation to take proactive and remedial steps to prevent all forms of harassment in the workplace. This includes conducting an assessment of the risk of harassment that employees are exposed to in the performance of their duties, as far as reasonably practicable.

Employers are required to take reasonable steps to prevent harassment, including implementing a harassment policy detailing support available to victims, creating procedures to address complaints of harassment, educating and training employees on their rights and the employer’s policies related to harassment, and providing mechanisms for employees to report harassment without the fear of retaliation.

The failure to take adequate steps to eliminate harassment in the workplace will render the employer vicariously liable for the conduct of the employee (perpetrator), once an allegation of harassment by an employee (complainant) has been submitted.

3. Did the #MeToo movement have a noticeable impact on the number of harassment claims against your employer clients when it first began in October 2017 and has the position changed since then?

The #Me Too movement did not gain as much traction in South Africa as it did globally. South Africa’s focus has been more on addressing its longstanding issues with gender-based violence (“GBV”) which continues to dominate national attention. Social campaigns like #AmINext have driven activism against sexual violence in South Africa. With its ratification of the International Labour Organisation’s Violence and Harassment Convention, 2019 (No. 190) and the implementation of the EEA and the Harassment Code, South Africa has taken steps to ensure an adequate legislative framework is in place to protect victims of sexual harassment in the workplace. Prior to the #Me Too movement, South African courts had already started taking a discernibly less tolerant approach towards unwelcome sexual conduct in the workplace.

In South Africa, the legal remedies for addressing and compensating workplace sexual harassment are outlined in the EEA and the Harassment Code:

  • An employer is obliged to investigate an allegation of harassment and advise the complainant of the informal or formal process available to deal with the incident. The EEA provides that any contravention of the EEA must immediately be brought to the attention of the employer.
  • Informal process: the complainant or another appropriate person may choose to resolve or address the issue by explaining to the perpetrator that their conduct is unwelcome and it is related to a prohibited ground. Alternatively, an appropriate person may approach the perpetrator, without revealing the identity of the complainant and explain to the perpetrator that the forms of harassment are offensive and unwelcome, and interferes with an employee’s work. Thereafter, an employer should consider any further steps which can be taken.
  • Formal process: a complainant can choose to first follow the informal process in addition to the formal process. A complainant may file a formal complaint/grievance in the workplace stating their desired outcome. This would follow the relevant disciplinary procedures as prescribed by the employer’s harassment policy.
  • External Litigation / Remedies: Should the matter not be satisfactorily resolved internally, the employee may refer a dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”) within six months of the incident, for conciliation. If conciliation is unsuccessful, the employee has 90 days to refer the matter to arbitration by the CCMA or adjudication by the Labour Court (“LC”). The LC may grant any order it deems just and equitable. This can include compensation for the employee, damages to be paid by the employer, or an order compelling the employer to implement measures to prevent future discrimination.  In terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”), claims of harassment may be referred to the Equality Court.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

Tackling sexual harassment is in the RED category for clients, particularly in light of an employer’s duty to provide a safe working environment and the elimination of unfair discrimination.

6. Any other relevant information on workplace harassment?

Employers can be held vicariously liable for acts of sexual harassment committed by their employees if they fail to take the appropriate steps to prevent or address the harassment. This emphasises the importance of having policies, training and procedures in place.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action?

The mining sector has been particularly affected by sexual harassment and remains a sector that requires significant improvement with the protection provided to victims of sexual harassment.