Employers should develop clear procedures to deal with sexual harassment. These procedures should enable the resolution of problems in a sensitive, efficient and effective way.
8.1 Reporting sexual harassment
| 8.1.1 |
Section 60(1) of the EEA provides that conduct in contravention of the EEA must immediately be brought to the attention of the employer. |
| 8.1.2 |
In instances of sexual harassment, the word "immediately" shall mean as soon as is reasonably possible in the circumstances and without undue delay, taking into account the nature of sexual harassment, including that it is a sensitive issue, that the complainant may fear reprisals and the relative positions of the complainant and the alleged perpetrator in the workplace. |
| 8.1.2 |
Sexual harassment may be brought to the attention of the employer by the complainant or any other person aware of the sexual harassment, for example a friend, colleague or human resources official acting on the request of the complainant, where the complainant has indicated that she/he wishes the employer to be made aware of the conduct. However, where the sexual harassment is of a particularly serious nature, the complainant should be encouraged to inform the employer. |
[Paragraph 8.1.2 has been duplicated - as published in the original Government Gazette)
| 8.2 |
Obligations of the employer |
When sexual harassment has been brought to the attention of the employer, the employer should:
| 8.2.1 |
consult all relevant parties; |
| 8.2.2 |
take the necessary steps to address the complaint in accordance with this code and the employer's policy; and |
| 8.2.3 |
take the necessary steps to eliminate the sexual harassment. |
| 8.3 |
The steps to be taken by the employer on receipt of a complaint by a complainant, should include but not be limited to the following: |
| 8.3.1 |
advising the complainant of the informal and formal procedures available to deal with the sexual harassment, as set out in items 8.5, 8.6 and 8.7 of this code; |
| 8.3.2 |
where reasonably practicable, offering the complainant advice, assistance and counselling as set out in item 8.4 of this code, including during any disciplinary enquiry that may be instituted; and |
| 8.3.3 |
following the procedures required by items 8.5, 8.6 and 8.7 of this code, in a manner that is procedurally and substantively fair. |
| 8.4 |
Advice and assistance |
| 8.4.1 |
A complainant of sexual harassment may require advice and assistance, including counselling. |
| 8.4.2 |
As far as is practicable, employers should designate a person outside of line management who complainants may approach for confidential advice and/or counselling. Such person: |
| 8.4.2.1 |
could be a person employed by the employer to perform such a function, a trade union representative, a co-employee or a professional engaged to perform such activity; |
| 8.4.2.2 |
should have the appropriate skills and experience, including counselling and labour relations skills; and |
| 8.4.2.3 |
should be properly trained and given adequate resources. |
| 8.5 |
Advising the complainant of workplace procedures to deal with sexual harassment |
| 8.5.1 |
When an incident of sexual harassment is brought to the attention of an employer, such employer should: |
| 8.5.1.1 |
advise the complainant that there are formal and informal procedures which could be followed to deal with the problem; |
| 8.5.1.2 |
explain the formal and informal procedures to the complainant; |
| 8.5.1.3 |
advise the complainant that she/he may choose which procedure should be followed by the employer, except that in certain limited circumstances, as set out in clause 8.7.2, the employer may choose to follow a formal procedure even if the complainant does not wish to do so; |
| 8.5.1.4 |
re-assure the complainant that she/he will not face job loss or any adverse consequences if she/he chooses to follow either the formal or informal procedure; |
| 8.5.1.5 |
advise the complainant that the matter will be dealt with confidentially if the complainant so chooses. |
8.6 Informal procedures
| 8.6.1 |
A complainant of sexual harassment may choose to follow either of the following informal procedures: |
| 8.6.1.1 |
the complainant or another appropriate person explains to the perpetrator that the conduct in question is not welcome, that it offends the complainant, makes him or her feel uncomfortable and that it interferes with his or her work; or |
| 8.6.1.2 |
an appropriate person approaches the perpetrator, without revealing the identity of the complainant, and explains to the perpetrator that certain forms of conduct constitute sexual harassment, are offensive and unwelcome, make employees feel uncomfortable, and interfere with their work. |
| 8.6.2 |
An employer should consider any further steps, which can be taken to assist in dealing with the complaint. |
| 8.7.1 |
A complainant may choose to follow a formal procedure, either with or without first following an informal procedure. |
| 8.7.2 |
In the event that a complainant chooses not to follow a formal procedure, the employer should still assess the risk to other persons in the workplace where formal steps have not been taken against the perpetrator. In assessing such risk the employer must take into account all relevant factors, including the severity of the sexual harassment and whether the perpetrator has a history of sexual harassment. If it appears to the employer after a proper investigation that there is a significant risk of harm to other persons in the workplace, the employer may follow a formal procedure, irrespective of the wishes of the complainant, and advise the complainant accordingly. |
| 8.7.3 |
The employer's sexual harassment policy and/or collective agreement should outline the following in respect of a formal procedure: |
| 8.7.3.1 |
with whom the employee should lodge a grievance; |
| 8.7.3.2 |
the internal grievance procedures to be followed, including provision for the complainant's desired outcome of the procedures; |
| 8.7.3.3 |
time frames which will allow the grievance to be dealt with expeditiously; |
| 8.7.3.4 |
that should the matter not be satisfactorily resolved by the internal procedures outlined above, a complainant of sexual harassment may refer the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). Similarly an alleged perpetrator of sexual harassment may refer a dispute arising from disciplinary action taken by the employer to the CCMA; and |
| 8.7.3.5 |
that it will be a disciplinary offence to victimize or retaliate against a complainant who in good faith lodges a grievance of sexual harassment. |
| 8.8 |
Disciplinary sanctions |
The employer's sexual harassment policy should specify the range of disciplinary sanctions that may be imposed on a perpetrator. The sanctions must be proportionate to the seriousness of the sexual harassment in question, and should provide that:
| 8.8.1 |
warnings may be issued for minor instances of sexual harassment; |
| 8.8.2 |
dismissal may ensue for continued minor instances of sexual harassment after warnings, as well as for serious instances of sexual harassment; |
| 8.8.3 |
in appropriate circumstances upon being found guilty of sexual harassment, a perpetrator may be transferred to another position in the workplace. |
Basic Conditions of Employment Act, 1997
