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What Is Your Business Liable For When It Comes To Workplace Harassment?

HR Simplified | workplaace harassment

Harassment in the workplace can be a very serious issue that can escalate if not addressed. According to the Commission for Conciliation, Mediation and Arbitration (CCMA), employers are duty-bound to ensure that workers are protected from harassment related to the workplace.

For this reason, it is essential that any employer formulate a clear and decisive code of conduct on harassment in their business planning to deal with it as it arises and ensure prevention wherever possible.

The implementation of a proper harassment policy and code of conduct is critical and should be formulated in consultation with employees as well as employee representatives to ensure that it is fair and equitable and approved by all.

Liable Or Not Liable: How To Tell

There is precedent in labour law for employers being held jointly accountable with the employee perpetrator in cases of harassment. However, such cases require the employee to prove that not enough was done to prevent or address workplace harassment incidents.

According to Section 60 of the Employment Equity Act, employers can be held responsible for their employees’ actions when those employees contravene the provisions of the Act. Among those provisions are incidents of harassment, for which the company has a duty to protect its employees while performing their duties.

If, however, an employer can prove they have taken the necessary steps to either prevent or eliminate the contravening behaviour, then the employer might not be held responsible for the individual perpetrator’s behaviour.

HR Simplified | workplace haarassment

Having good policies and procedures in place will help absolve your company of any wrongdoing here, so it is important. Responding to the victim’s report with urgency is also of utmost importance.

If an employee can prove that harassment took place in the workplace, as stipulated in the Employment Equity Act, and if the alleged conduct was reported straight away and the employer failed to do anything substantial about it, only then can it be shown that the employer is responsible and will, therefore, be held jointly liable with the offending employee.

How Can An Employer Take Responsibility Regarding Workplace Harassment?

The impact on the victim, the nature of the harassment, and the determination of whether the interaction was wanted or unwanted will help to define the severity of the incident. Naturally, this differs on a case-by-case basis. Each case must be reviewed according to its own unique set of facts and circumstances.

Where employers fail to take adequate steps to properly deal with the harassment within a reasonable amount of time, the employer could also be held liable for damages. This is true even when the harassment incident is singular in nature and not ongoing. Although it is arguably worse when the harassment is ongoing and there is insufficient action taken against it by the employer to avoid being held accountable.

HR Simplified | workplace harassment

Employers should ensure that clear procedures and codes of conduct are laid out that deal with harassment. Incorporated into this code of conduct should be means and methods for resolving such problems as swiftly and fairly as possible, while ensuring the utmost sensitivity in terms of factors such as gender and power structures, as well as any other factors that may influence the case.

All cases should be treated with confidentiality and addressed as a matter of urgency and priority. If a harassment complaint is put forward by an employee, it is incumbent upon the employer to investigate the allegation immediately and address it by following the established procedures.

Doing this will effectively protect employers from potential prosecution in cases where an employee is the perpetrator of harassment.

Book a consultation with HR Simplified to further ensure employee protection. Our business planning and employee management expertise will help ensure that you avoid the many legal pitfalls involved in working with people.

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