Navigating harassment and intimidation in the workplace – Employment guide

Bites Editor

10 months ago

A healthy work environment is built on mutual respect and safety, yet harassment and intimidation remain all too common in South African workplaces, affecting employee wellbeing, productivity, and potentially exposing employers to significant legal liability.

The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, which came into effect on 18 March 2022 under the Employment Equity Act, fundamentally expanded protections beyond just sexual harassment to include all forms of harassment – bullying, cyberbullying, gender-based violence, racial harassment, mobbing, shaming, and even using pressure to effect an employee’s resignation or demotion without justification – and critically extends the definition of “workplace” to include work-related trips, training, social activities, virtual working, employer-provided accommodation, and commuting in employer-provided transport.

Section 60 of the Employment Equity Act (EEA) makes employers vicariously liable for harassment by employees or third parties unless the employer can prove it took all reasonable steps to prevent it, creating powerful incentives for proactive policies, risk assessments, training, and prompt investigation of complaints.

This guide outlines what constitutes workplace harassment and intimidation, what protections exist under South African law, and what both employers and employees can do to prevent and address it effectively.

This article provides general information only and should not be considered legal or medical advice.

Key takeaways

Harassment and intimidation in the workplace are prohibited under the Employment Equity Act, with the 2022 Code providing comprehensive guidance on prevention, elimination, and management of all forms of harassment.
The Code defines harassment broadly as unwanted conduct that impairs dignity or creates a hostile environment and is related to prohibited discrimination grounds – it can be a single serious incident or repeated conduct.
Employers have a legal duty under Section 60 of the EEA to take proactive and remedial steps including policies, risk assessments, training, clear reporting procedures, and prompt investigations.
Employees have the right to report harassment without fear of victimisation, have complaints investigated confidentially, receive support including counselling, and pursue CCMA or Labour Court remedies if employers fail to act.
Employers face vicarious liability for harassment by employees or third parties unless they prove reasonable preventive steps were taken, making proper policies, procedures, and training essential for compliance.

What is workplace harassment and intimidation

The 2022 Code provides that harassment is generally understood to be unwanted conduct which impairs dignity, creates a hostile or intimidating work environment for one or more employees, or is calculated to or has the effect of inducing submission by actual or threatened adverse consequences, and is related to one or more grounds in respect of which discrimination is prohibited in Section 6(1) of the Employment Equity Act.

The prohibited grounds include race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth, and any other arbitrary ground. Harassment related to any of these grounds is unlawful.

Intimidation is a form of harassment that uses threats, bullying, or coercive behaviour to make someone feel unsafe or pressured. The Code recognises that harassment includes violence, physical abuse, psychological abuse, emotional abuse, sexual abuse, gender-based abuse, and racial abuse – including the use of physical force or power, whether threatened or actual.

The Code emphasises that harassment can be a single incident if sufficiently serious, or repeated conduct. It can be direct or indirect, verbal or non-verbal, physical or psychological. Critically, the perpetrator does not need to intend harm – the test is the impact on the complainant and what a reasonable person would objectively interpret as harassment.

Examples of harassment and intimidation

The Code lists numerous behaviours that may constitute harassment:

verbal abuse, insults, threats, or derogatory jokes;
racial slurs, name-calling, or racist cartoons, memes, or innuendos (stereotyping or racial conduct is assumed to be offensive);
sexually suggestive remarks, unwelcome physical contact, displaying sexually explicit images, or quid pro quo demands;
bullying, mobbing, or hostile teasing;
cyberbullying, online harassment, or spreading malicious rumours;
shaming, intolerance, or use of phobic language;
repeated undermining, sabotaging, or excluding employees from work-related activities;
withholding work-related information or providing incorrect information;
using pressure to effect an employee’s resignation or demotion without justification; and
using disciplinary sanctions without objective cause or efforts to problem-solve.

The last three examples are particularly significant – they mean that employers who use pressure tactics to force resignations, demote employees arbitrarily, or apply discipline unfairly may face harassment claims under the EEA in addition to Labour Relations Act (LRA) disputes about unfair dismissal or unfair labour practices.

Legal framework in South Africa

Employment Equity Act and 2022 Code

Section 6(3) of the Employment Equity Act prohibits harassment of employees and states that harassment is a form of unfair discrimination. Section 60 requires employers to take proactive and remedial steps to prevent all forms of harassment in the workplace, including implementing policies, conducting training, and establishing procedures to deal with harassment.

Section 60 also establishes vicarious liability: employers are liable for acts of harassment by employees or third parties in the workplace unless the employer can prove it took reasonable steps within a reasonable time after becoming aware of the harassment to eliminate it. This creates strong incentives for employers to act promptly on complaints.

The 2022 Code, issued under Section 54 of the EEA, provides detailed guidance on recognising, preventing, and dealing with harassment. Whilst technically advisory, courts have historically treated Codes of Good Practice as binding when interpreting Section 60 obligations and assessing whether employers took reasonable steps.

Labour Relations Act

The LRA protects employees from unfair labour practices, including victimisation for lodging harassment complaints or asserting their rights. Dismissing or otherwise penalising an employee for reporting harassment may constitute automatically unfair dismissal under Section 187(1)(f).

Occupational Health and Safety Act

Section 8 of OHSA requires employers to provide and maintain a working environment that is safe and without risk to employees’ health. Courts have recognised that psychological safety is part of this duty, meaning employers must protect employees from harassment and intimidation that damages mental health.

Other relevant legislation

The Code references the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which provides additional remedies through the Equality Court; the Protected Disclosures Act, which protects whistle-blowers; and criminal law, which may apply in cases involving assault, threats, stalking, or sexual offences.

The expanded definition of workplace

One of the most significant aspects of the 2022 Code is its broad definition of where harassment protections apply. The Code makes clear that harassment does not only occur when employees are on-duty at the physical workplace but extends to work-related trips and travel, training programmes or conferences, work-related social activities, work-related communications (emails, messaging apps, video calls), employer-provided accommodation, commuting to and from work in employer-provided transport, and the location of employees who work virtually or remotely.

This means if an employee experiences harassment during a team-building event at a remote location, via WhatsApp work group chats after hours, or at employer-provided staff housing, the employer may be vicariously liable if it failed to take reasonable preventive steps.

Employer responsibilities and obligations

Under Section 60 and the Code, employers must:

conduct risk assessments to identify areas, roles, or activities where harassment is more likely and implement preventive measures;
adopt and implement a comprehensive harassment policy addressing all forms of harassment, reporting procedures, investigation processes, disciplinary sanctions, and support for victims;
communicate the policy widely to all employees, contractors, customers, clients, and third parties who interact with the business;
conduct training and awareness programmes to educate all staff about harassment forms, how to recognise them, reporting procedures, and everyone’s role in prevention; and
establish clear, confidential reporting procedures that allow complaints to be made to designated persons, HR, or external hotlines.

When complaints arise, employers must acknowledge complaints immediately and take them seriously, investigate thoroughly, fairly, and confidentially using trained investigators or external specialists where appropriate, provide interim protective measures such as separating complainant and alleged perpetrator or adjusting work arrangements, offer advice, assistance, and counselling to complainants including access to employee assistance programmes, consider providing additional paid sick leave if the complainant’s sick leave is exhausted due to trauma, take appropriate disciplinary action if harassment is substantiated, and document all steps taken.

Importantly, the Code emphasises that confidentiality must be maintained during investigations, with information shared only on a need-to-know basis. Breaching confidentiality can cause further harm to complainants and expose employers to POPIA violations.

Employee rights

Employees have the right:

to a workplace free from harassment and intimidation on any prohibited ground;
to lodge complaints internally or externally without fear of retaliation or victimisation;
to have complaints investigated fairly, thoroughly, and confidentially;
to receive support including counselling, additional sick leave, or workplace adjustments during and after investigations;
to be informed of investigation outcomes and actions taken; and
to take legal action through the CCMA, Labour Court, or Equality Court if employers fail to protect them or if victimised for reporting.

The Code clarifies that employees who lodge harassment complaints in good faith are protected from adverse consequences even if the complaint is ultimately not substantiated, provided the complaint was not malicious or vexatious.

How to deal with harassment

For employees

If you experience harassment, document incidents meticulously with dates, times, locations, exactly what was said or done, who was present or witnessed it, and the impact on you. Save emails, messages, or any documentary evidence. If it’s safe to do so and you’re comfortable, communicate boundaries by telling the perpetrator their behaviour is unacceptable and unwelcome – but this is not required if you fear escalation.

Report the conduct using your employer’s internal procedures – speak to HR, your manager (if not the perpetrator), a designated harassment officer, or use confidential hotlines. Put your complaint in writing if possible. Seek support from employee assistance programmes, trade union representatives, counsellors, or legal advisors. If your employer fails to act, delays unreasonably, conducts biased investigations, or retaliates, escalate externally by referring harassment claims to the CCMA or Labour Court under Section 10 of the EEA, or to the Equality Court under PEPUDA.

For employers

Take every complaint seriously regardless of who makes it or who is accused. Acknowledge complaints immediately and commit to fair investigation. Ensure confidentiality by limiting information access to those directly involved in the investigation. Remain neutral throughout by using objective processes and considering external investigators for complex or senior-level cases.

Implement remedial action based on investigation findings – this may include warnings, suspension, dismissal, or other disciplinary measures proportionate to the severity. Follow up with both complainant and alleged perpetrator to ensure the situation is resolved and no retaliation occurs. Review and update policies regularly to ensure they reflect current law, address emerging risks like cyberbullying, and incorporate lessons from past incidents.

FAQ: Navigating harassment and intimidation in the workplace

Can I be dismissed for reporting harassment?

No. Retaliation is unlawful under Section 187(1)(f) of the Labour Relations Act. If you’re dismissed, demoted, or otherwise penalised for reporting harassment in good faith, this may constitute automatically unfair dismissal and you can approach the CCMA for protection and remedies.

What if the harasser is a manager, director, or the employer themselves?

You’re still protected. Report to HR, a more senior manager, board members, or external authorities like the CCMA, Labour Court, or South African Human Rights Commission. The 2022 Code recognises power imbalances and requires employers to have procedures addressing harassment by those in authority.

Do I need proof or witnesses to lodge a harassment complaint?

Not necessarily. Whilst documentation and witnesses strengthen your case, employers must still investigate all complaints, including those based solely on your account. The Code places the burden on employers to investigate thoroughly regardless of evidence availability at the complaint stage.

What’s the difference between harassment and ordinary workplace conflict?

Harassment is repeated or sufficiently serious unwanted conduct targeting individuals based on prohibited grounds that impairs dignity or creates a hostile environment. Conflict may be mutual disagreement, professional differences, or legitimate performance management conducted fairly without abusive intent. The test is whether conduct is unwanted, creates a hostile environment, and relates to prohibited grounds.

Can I lodge a criminal case for workplace harassment?

Yes, especially in cases involving assault, threats, stalking, sexual offences, or crimen injuria (unlawful and intentional impairing of dignity). The 2022 Code recognises that some harassment may constitute criminal conduct, and nothing prevents you from pursuing both labour law remedies and criminal charges simultaneously.