Reminder: Employers Have A Responsibility To Deal With Harassment In The Workplace

Gender-based violence and harassment remain pervasive across South African society, and the workplace is no exception. Preventing and addressing harassment in all its forms is both a legal obligation and a matter of basic dignity, and employers have a central role to play. This note is a reminder of those responsibilities.

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This note is intended as a brief reminder and practical guide only.

The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (2022 Code) marks an important development in the regulation of workplace harassment. While its predecessor dealt only with sexual harassment, the 2022 Code recognises that harassment takes many forms and may occur well beyond the physical boundaries of the traditional workplace.

This broader approach is especially significant in the South African context. Gender-based violence and femicide are recognised at the national policy level as demanding a co-ordinated, society-wide response. South Africa’s National Strategic Plan on Gender-Based Violence and Femicide 2020–2030 sets out a multi-sectoral framework involving government, civil society and the private sector, among others, with prevention as one of its central pillars.

Against this backdrop, the 2022 Code is significant not merely because it regulates how an employer should respond once harassment has occurred, but because it places far greater emphasis on prevention, workplace culture and proactive risk management.

For employers, this raises a broader question than whether the organisation has a sexual harassment policy. Employers should consider whether their workplaces, policies and practices adequately identify and address harassment in the various forms and environments in which it may occur.

From sexual harassment to harassment more broadly

The most obvious difference between the old and new regimes is one of scope.

The 2005 Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace was directed specifically at sexual harassment. The 2022 Code is wider, addressing the prevention, elimination and management of all forms of harassment as a form of unfair discrimination.

Under the 2022 Code, harassment is generally understood as unwanted conduct that impairs dignity, creates a hostile or intimidating working environment, or is calculated to, or has the effect of, inducing submission through actual or threatened adverse consequences, and is related to one or more grounds of discrimination prohibited by section 6(1) of the Employment Equity Act 55 of 1998 (EEA).

Importantly, the 2022 Code recognises that harassment may be physical, verbal or psychological. It also identifies bullying, intimidation, mobbing and online harassment, including cyber-bullying, as forms that workplace harassment may take.

There is, however, an important qualification. Not every unpleasant workplace interaction will constitute harassment for purposes of the EEA. The 2022 Code’s general definition links the conduct to one or more of the prohibited grounds under section 6(1). That distinction matters when employers investigate complaints involving workplace conflict or bullying.

What constitutes the workplace

The 2022 Code’s broader understanding of the workplace is particularly relevant given the way employees now communicate and work.

The protection afforded by the 2022 Code is not confined to conduct on an employer’s premises. It extends to any circumstances in which an employee is working, or which are related to work, including remote working and electronic communications.

This has practical consequences. A complaint should not be treated as falling outside the employment relationship simply because the conduct occurred after employees had left the office. Work-related WhatsApp messages, emails and online meetings, as well as business trips and work functions, may all fall within the working environment contemplated by the 2022 Code, depending on the circumstances. The dividing line between the physical and digital workplace matters less than the connection between the conduct and work.

Who does the 2022 Code apply to?

The 2005 Code already recognised that workplace harassment could involve more than conventional employee-to-employee interactions, contemplating owners, employers, managers, supervisors, employees, job applicants, clients, suppliers, contractors and others having dealings with the business.

The 2022 Code continues this broad approach, expressly extending it to volunteers and persons in training, including interns, apprentices and persons on learnerships, as well as job seekers and customers. This is particularly relevant for employers whose staff regularly interact with customers, contractors, suppliers or members of the public. The 2022 Code contemplates protection in both directions: those dealing with a business should not be harassed by the employer’s representatives, and employees should equally be protected from harassment by third parties.

Proactive response rather than reactive

Perhaps the most significant development for employers is the 2022 Code’s emphasis on prevention rather than response alone.

Traditionally, harassment policies may have been seen primarily as mechanisms for managing a complaint once lodged. The 2022 Code calls for a more proactive approach. Under section 60 of the EEA, employers are required to take proactive and remedial steps to prevent workplace harassment, including, as far as reasonably practicable, assessing the risk of harassment to which employees may be exposed in performing their duties.

Compliance does not end with adopting a harassment policy. Employers, where applicable, jointly with trade unions, must provide awareness training for employees at all levels, reinforced through ongoing programmes. In short, employers need an effective means of communicating their policy and clear reporting channels.

What is an employer obliged to do when a complaint is made?

Section 60(1) of the EEA provides that prohibited conduct by an employee must immediately be brought to the attention of the employer. In Liberty Group Limited v M [2017] 38 ILJ 1318 (LAC), the Labour Appeal Court interpreted “immediately” purposively rather than technically. This principle was echoed in the more recent judgment in Mashele v South African Reserve Bank and Others [2026] 47 ILJ 168 (LAC), where the court held that failure to report harassment “immediately” does not justify an adverse inference against the credibility of the complaint. Allegations made within a period appropriate to the circumstances must therefore be investigated, and appropriate steps taken to prevent recurrence.

Once an incident has been reported, the employer must investigate and advise the complainant of the informal and formal procedures available. The employer must consult the relevant parties, address the complaint in line with the 2022 Code and applicable workplace instruments, and take the steps necessary to eliminate the harassment.

The consequences of failing to act can be serious. The 2022 Code states that a failure to take adequate steps to eliminate harassment, after an employee has made an allegation within a reasonable period, may render the employer liable for the employee’s conduct under section 60 of the EEA, even where the harassment consists of a single incident.

Zero tolerance does not mean automatic dismissal

The 2022 Code’s preventative stance should also not be confused with a one-size-fits-all approach to discipline.

Disciplinary sanctions remain a matter of proportionality. Employers should therefore distinguish between a zero-tolerance stance towards harassment as workplace conduct and the appropriate sanction in an individual disciplinary case. The seriousness and circumstances of the particular conduct remain relevant in determining a response that is proportionate. The 2022 Code contemplates a range of sanctions, from warnings in minor instances and transfers in appropriate circumstances, to dismissal in serious cases.

Key takeaways

Employers should also assess their particular operational risk. A client-facing employer may face different exposure to third-party harassment than one with a predominantly remote workforce, while employers providing transport or accommodation should take account of the 2022 Code’s express treatment of those environments.

The key point is that workplace harassment can no longer sensibly be managed through a sexual harassment policy alone. Employers must ensure that their policies align with the 2022 Code and that employees are well trained on their contents. Reporting mechanisms must be clear, and appropriate disciplinary action consistently applied.