The risks of sexual harassment in the workplace

Jan 6, 2011

Articles

In terms of the Employment Equity Act, 1998 (‘EEA’) harassment of an employee is
regarded as a form of unfair discrimination and prohibited on the grounds listed in the
Act (e.g., race, gender and sexual orientation). Sexual harassment remains one of the
most common forms of discrimination in the workplace.

In terms of the Code of Good Practice on the Handling of Sexual Harassment Cases
in the Workplace sexual harassment is defined as unwanted conduct (whether
physical, verbal or non-verbal) of a sexual nature that violates the rights of an
employee. The unwanted nature of sexual harassment distinguishes it from
behaviour that is welcome and mutual.

So, what does the law require an employer to do when an employee claims that s/he
has been sexually harassed? The employer should inform the employee that s/he
has a choice of either addressing the matter in an informal or formal manner.

The informal approach entails the complainant personally, or through an intermediary
(without disclosing the complainant’s identity should the complainant request this),
confronting the alleged offender and explaining that the conduct in question is not
welcome, that it offends the complainant, makes him/her uncomfortable or interferes
with his/her work. The employer should confirm and discuss with the employee what
assistance, if any, the employee requires from the employer in order to address the
matter in an informal manner.

If the informal approach fails to provide the desired outcome, the complainant
chooses to follow the formal route, or where the harassment is of such a nature and
gravity that the informal approach would be inappropriate, the formal approach
should be embarked upon. The formal approach entails that a formal grievance is
lodged by the complainant, with the result that the company has to become formally
involved in the matter, including investigating the matter. Should the investigation
show that sexual harassment was likely to have occurred, the employer will have to
take appropriate disciplinary action against the offender, which, depending on the
nature and severity of the harassment, could result in the offender’s dismissal if
found guilty on a balance of probabilities.

Employers should ensure that the utmost confidentiality is maintained during any
investigation into an allegation of sexual harassment. Any information concerning the
matter should only be shared, as is reasonably required, with people involved in the
investigation.

The consequences of sexual and other forms of harassment can be dire for
employers.

If an employee can prove that s/he resigned because sexual harassment has made
continued employment ‘intolerable’, s/he can pursue a claim for constructive
dismissal under the Labour Relations Act. This will usually be the case where the
employer didn’t take appropriate action to deal with the problem. If successful, the
employer could face a claim for compensation up to a maximum of 24 months’
remuneration.

The employee could also have a separate claim under the Employment Equity Act. If
it is proved that an employer failed to take reasonable steps to prevent, or deal with,
sexual harassment after it came to the employer’s attention, the employer will be
deemed to have contravened the EEA. Should the employee be successful in his/her
claim the labour court can award an amount of compensation to the employee it
deems fit and appropriate under the circumstances.

Finally, where one employee sexually harasses another, or, for example, an
employee harasses a member of the public or a customer, and this happens while
the harasser goes about his/her employer’s business, the employer may face an
additional claim for damages on the basis of so-called ‘vicarious’ liability in terms of
the common law.

It is important to note that an employee can in appropriate circumstances institute an
unfair dismissal claim, an unfair discrimination claim, and a claim under the common
law for the same harassment and receive compensation in respect of each claim if
successful.

The harasser faces not only disciplinary action, including possible dismissal, but also
a potential civil claim by the victim. In appropriate cases, criminal proceedings may
also be pursued against the harasser. These actions however have no direct impact
on the employer.

Finally, where an employer investigates a complaint of sexual harassment and
establishes that the complainant made false accusations against the alleged
offender, the employer may take disciplinary action against the complainant. This
may include dismissal.

January 2011
Author: Elsabé Huysamen

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.

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