Understanding What Constitutes Sexual Harassment


According to the Code of Good Practice on Sexual Harassment, sexual harassment is defined as any unwanted conduct of a sexual nature, where the behaviour is not welcome or mutual. Sexual attention becomes sexual harassment if:

  • The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

  • The recipient has made it clear that the behaviour is considered offensive; and/or

  • The perpetrator should have known that the behaviour is regarded as unacceptable.


Despite the common assumption that policies are put into place to protect employees only, it should be known that anyone can be a victim of sexual harassment in the workplace. A publication by the reputable law firm, Cliffe Decker Hofmeyr further highlights instances where particular conduct will still result in disciplinary action:

  • The conduct does not have to take place on the employer’s property or within working hours in order to constitute disciplinary action,

  • The perpetrator does not have to be the victim’s superior in order for the behaviour to be unwarranted,

  • The act does not have to take place more than once to be considered sexual harassment, and

  • Even more recently with the spread of Covid-19 and employees working from home, sexual harassment can happen virtually.


The People

With that being said, employers are encouraged to ensure that a safe working environment and open-door policy are implemented where acts of unfair discrimination and workplace conduct are concerned. Author at the Smart Company, Andrew Brooks highlights that there can be no “innocent bystanders” among employees. Brooks highlights that only 17% of victims will issue a formal complaint and while, 69% of these incidents have witnesses. If staff are fearful to speak out due to fear that they may be ostracized or seen as having ‘asked for it, they are less likely to come forward. The witness’s report is crucial in that it raises a question and creates awareness to a possible issue. The relevant bodies become more alert and the perpetrator is forced to either stop their advances or get caught all together.


The Process

Often, even after having particular conduct brought to light, the matter may be handled poorly. Employees may be brave enough to take the first step however, what happens afterwards is just as important. If the victim feels that their aggressor was not dealt with adequately, it reduces their sense of trust in the organisation and its leadership and undermines the company’s course of action should a similar incident occur. Instituting the relevant procedures such as an early investigation, initiating an enquiry and addressing particular points in a company’s policy are the minimal process requirements when dealing with poor conduct in the workplace.


The Policy

The redrafting of policies, especially those that deal with issues of unfair discrimination, needs be done more often than not. Companies that leave this chance often stand the risk of only seeing a hole in policies when a dispute arises. When we consider the number of employees working from home or, even the number of staff involved in intimate relationships that later result in cases for sexual harassment; it is important to understand that these issues are constantly evolving. Where there is no clarity on certain behaviours in the workplace, there is only room for error.

According to the Code of Good Practice on Sexual Harassment, sexual harassment is defined as any unwanted conduct of a sexual nature, where the behaviour is not welcome or mutual. Sexual attention becomes sexual harassment if:

  • The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment; and/or

  • The recipient has made it clear that the behaviour is considered offensive; and/or

  • The perpetrator should have known that the behaviour is regarded as unacceptable.


Despite the common assumption that policies are put into place to protect employees only, it should be known that anyone can be a victim of sexual harassment in the workplace. A publication by the reputable law firm, Cliffe Decker Hofmeyr further highlights instances where particular conduct will still result in disciplinary action:

  • The conduct does not have to take place on the employer’s property or within working hours in order to constitute disciplinary action,

  • The perpetrator does not have to be the victim’s superior in order for the behaviour to be unwarranted,

  • The act does not have to take place more than once to be considered sexual harassment, and

  • Even more recently with the spread of Covid-19 and employees working from home, sexual harassment can happen virtually.



The People

With that being said, employers are encouraged to ensure that a safe working environment and open-door policy are implemented where acts of unfair discrimination and workplace conduct are concerned. Author at the Smart Company, Andrew Brooks highlights that there can be no “innocent bystanders” among employees. Brooks highlights that only 17% of victims will issue a formal complaint and while, 69% of these incidents have witnesses. If staff are fearful to speak out due to fear that they may be ostracized or seen as having ‘asked for it, they are less likely to come forward. The witness’s report is crucial in that it raises a question and creates awareness to a possible issue. The relevant bodies become more alert and the perpetrator is forced to either stop their advances or get caught all together.


The Process

Often, even after having particular conduct brought to light, the matter may be handled poorly. Employees may be brave enough to take the first step however, what happens afterwards is just as important. If the victim feels that their aggressor was not dealt with adequately, it reduces their sense of trust in the organisation and its leadership and undermines the company’s course of action should a similar incident occur. Instituting the relevant procedures such as an early investigation, initiating an enquiry and addressing particular points in a company’s policy are the minimal process requirements when dealing with poor conduct in the workplace.


The Policy

The redrafting of policies, especially those that deal with issues of unfair discrimination, needs be done more often than not. Companies that leave this chance often stand the risk of only seeing a hole in policies when a dispute arises. When we consider the number of employees working from home or, even the number of staff involved in intimate relationships that later result in cases for sexual harassment; it is important to understand that these issues are constantly evolving. Where there is no clarity on certain behaviours in the workplace, there is only room for error.


 

How can MW assist?


We would like to encourage you to take this time to redraft your company's policies or have them submitted for review. As part of MW’s business advisory services, we offer the drafting of policies and contracts to businesses small and large. We understand the importance of dealing with the issues dealing with the foundation before it becomes an underlying issue in a greater dispute. Our services include, but are not limited to; redrafting internal policies, offering the services of an independent investigator or chairperson for disputes and enquiries, and hosting workshops on a number of issues including; ‘Combating Sexual Harassment in the Workplace”, “Presiding Officer Training”, “Facilitating Negotiations” and more.


If you would like to find out more about our services, please contact our offices on 087 150 5283 or send an email to info@mediateworks.com and find out how we can help you.


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