In light of the issues that have arisen with the #metoo campaign, Jean Ewang, Partner at Hogan Lovells South Africa, shares some practical advice on a woman’s rights in terms of harassment at work.
- With the advent of the #Metoo campaign a spotlight has been put on harassment in the workplace. Unfortunately, the issues highlighted by the #Metoo campaign are not new but have plagued women in the workplace for time immemorial.
- Sexual harassment is classified as conduct of a sexual nature that is unwelcome. Sexual harassment may include unwelcome physical, verbal or non-verbal conduct. The list of what types of behaviour constitute sexual harassment is not exhaustive but can include touching, unwelcome innuendo, indecent exposure and unwelcome gestures. The unwelcome conduct need not be continuous to be classified as sexual harassment; as a single incident of harassment can also constitute sexual harassment.
- The first step to be taken by an employee experiencing harassment in the workplace is to report it to the employer. Given that sexual harassment is a sensitive topic it is understandable that it may not be easy to report it, it is however imperative that they report it to their employer at the first available opportunity. The employee can also initially try speaking to the perpetrator and conveying to them that their behaviour is unacceptable. Irrespective, the employee should keep detailed records of the unwanted conduct and any steps taken to communicate their discomfort to the perpetrator or report to their employer.
- Once the complaint of sexual harassment is reported to an employer, the employer is expected to consult with all relevant parties and take the necessary steps to eliminate such conduct. Generally speaking this means that an investigation into the complaint should take place followed by a disciplinary hearing for the perpetrator, if warranted.
- An employer who becomes aware of sexual harassment complaint and fails to take the necessary steps to eliminate the alleged conduct can be held liable for such failure. The Labour Courts have taken a very dim view of employers who have failed to comply with their obligation in this regard.
- Through legislation, remedies are available to employees who have experienced sexual harassment and did not receive adequate recourse or protection from their employer.
- The Employment Equity Act, 1998 (EEA) categorises sexual harassment as a form of unfair discrimination and it is prohibited on the grounds of gender/sex and or sexual orientation. An employee who experiences sexual harassment can in terms of the EEA refer her claim to the Commission for Conciliation, Mediation and arbitration (CCMA) for conciliation and thereafter to the CCMA for arbitration or the Labour Court for adjudication. In terms of such EEA unfair discrimination claim, compensation can be awarded to the employee if successful.
- Furthermore, an employee who was constructively dismissed as a result of the sexual harassment can claim compensation for an automatically unfair dismissal. Constructive dismissal occurs when an employee resigns due to their continued employment being rendered intolerable leaving them with no option but to resign. A constructive dismissal claim can be referred to the CCMA. If successful compensation can be awarded.
- An employee may also institute a damages claim in the high court or labour court against their employer based on the common law doctrine of vicarious liability. This requires that the perpetrator of the sexual harassment is an employee of the employer and there exists a close connection between the employment and the harassment.
- It is important that women familiarise themselves with their rights in the workplace in the event they find themselves having to deal with sexual harassment.
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