Harassment in the workplace, encompassing not only sexual harassment but also bullying and other forms of dignity harm, presents significant legal risks for employers. These risks include potential claims of unfair discrimination under the Employment Equity Act, 1998 (EEA), constructive dismissal, and civil liability.

With the recent introduction of amendments to the EEA, adverse findings against employers of unfair discrimination by a court or the Commission for Conciliation, Mediation and Arbitration (CCMA) can now also jeopardise their ability to do business with the State. This is because such findings, unless taken on appeal or review, will disqualify employers from obtaining certificates of compliance, necessary for State contacts.  

In addition to legal risk, mishandling of harassment matters can result in intolerable working environments for employees, reputational damage for employers, and protracted litigation, requiring management time outside of the office.

To avoid liability under the EEA specifically, employers are required to demonstrate that they have taken all reasonably practicable steps to prevent and eliminate all forms of harassment. This includes investigating all allegations of harassment that come to their attention. 

The investigation process is complicated by the need to balance the rights of complainants and alleged perpetrators, manage confidentiality, and address issues such as the reluctance of witnesses to come forward, or conflicting versions. Traditional disciplinary and grievance procedures are often ill-suited to the sensitive nature of harassment complaints, with the risk of retraumatising complainants, if not handled appropriately.

This article summarises some of the key takeaways from seminars addressing workplace harassment that Bowmans recently hosted in the firm's Cape Town and Johannesburg offices.

People-centred and holistic approaches

Employees bring their whole selves, including any trauma experienced outside of work, into the workplace. The panel advocated for a holistic approach that recognises the ongoing trauma experienced by individuals both inside and outside the workplace.

Key elements of  effective employer responses include:

• Confidentiality: Employees can be reluctant to approach internal audit teams, human resources or their line managers, particularly when it comes to dignity-related complaints. Building trust is critical, eg, through confidential reporting channels, independent processes, and clear undertakings regarding anonymity of witnesses, where necessary.
• Victim/ people-centred support: Providing psychosocial support and listening to the needs of complainants from the outset is important. Depending on the employer’s resources, this may include providing access to social workers or psychologists who can support complainants through the process. Employers must also be prepared to explore and offer options for formal investigation or alternative resolution mechanisms, depending on the severity and nature of the conduct, and considering the complainant’s desired outcomes. In cases of less serious harassment for example, where the complainant seeks behavioural change, facilitation or mediation could be considered. There are many benefits to this approach, which allows for swift and discreet resolution, while also preserving working relationships.
• Independence: Where appropriate and feasible, establishing a team outside of traditional human resources structures may be useful to support the human resource teams with expert guidance, or guide complainants through the process. Utilising independent investigators or external disciplinary chairpersons can also ensure impartiality and build confidence in the process.

Investigation best practices

Harassment investigations can raise a host of issues. One of the first critical steps is to select an appropriate investigator, be they internal or external to the organisation. This decision should be based on factors such as impartiality, knowledge of the business, and the nature of the complaint. Importantly, whoever is appointed should have the emotional intelligence necessary to deal with harassment matters. In particularly sensitive cases, where a careful weighing up of competing versions is anticipated, or where internal credibility is compromised, external investigators may be preferable.

Witness management is another important aspect. Complainants and other witnesses are often reluctant to come forward, due to  the fear of stigmatisation or retaliation within the workplace. Investigators will need to build their trust, which may involve anonymity undertakings, accommodating their preferences for interview settings, and considering the use of trusted intermediaries.

When it comes to the investigation report, careful consideration must be given to the level of detail and disclosure provided, which should be tailored to the audience and purpose of the report.

Confidentiality should remain paramount throughout the investigation process and when preparing and distributing the report, which should only be shared with a limited audience. Whether the report, or a redacted summary of it, is shared with the alleged perpetrator will depend, among other things, on whether reliance will be placed on the document itself during any subsequent disciplinary or CCMA proceedings or whether direct witness testimony will be possible.

Flexibility in disciplinary proceedings

Our law does not require rigid, criminal trial-style disciplinary hearings. Such processes are particularly unsuited to dealing with harassment complaints. Employers are encouraged to amend their policies, where necessary, to provide for processes that uphold the requirements for procedural fairness, while allowing room for flexibility.

In line with the Code of Good Practice on Dismissal, such processes must require reasonable prior notice to the employee of the concerns with their conduct, an opportunity for the employee to respond to the concerns and to be represented by a trade union or fellow employee if requested, as well as a written outcome.

While retaining these core elements, building flexibility into policies and procedures could allow for alternative approaches like enquiries by way of written representation, virtual testimony, or pre-recorded evidence with questions relayed through the chairperson, particularly where complainants are fearful of facing the alleged perpetrator in person.

Like the investigator, the choice of chairperson is critical. Whether they are appointed from inside or outside the organisation, they should be experienced, ideally trained in dealing with trauma and dignity harms and be able to adapt the process to minimise harm and potential re-traumatisation.

While procedural irregularities can be a risk, especially at the CCMA, a flexible approach that prioritises the well-being of complainants and the integrity of the process would be defendable, provided the subject of the complaint has had a fair opportunity to respond to allegations against them.

Organisational culture and leadership

Ultimately, building trust in internal processes is critical to encourage reporting and effective resolution of harassment matters. This requires buy-in from leadership and clear communication of zero-tolerance policies, coupled with training for managers and employees, so that they are able to recognise and address both overt and subtle forms of harassment.

Conclusion

Dealing with workplace harassment requires a nuanced, flexible and human-centred approach.

Employers should prioritise confidentiality, support for complainants, and procedural fairness, while adapting processes to the specific circumstances of each case.

Innovative practices, leadership commitment, and ongoing training are essential to fostering a safe and respectful workplace and mitigating legal, organisational and reputational risks.

Written by Helen Wilsenach, Partner and Chloë Loubser, Knowledge and Learning Lawyer: Employment & Data Protection, Bowmans