More businesses are adopting a tough stance on sexual harassment. In particular, global organisations and multi-nationals are showing little tolerance for such behaviour and are willing to take discipline and dismiss even senior executives involved in such action.

Many South African companies have also made great strides in embracing workplace diversity and eradicating various forms of discrimination and harassment in the workplace through training, awareness creation and stringent action against wrongdoers. There are still workplaces, though, where the mention of sexual harassment invokes sniggers and is seen as “fun by the lads”.

Fortunately, the South African employment tribunal and labour court have sent exceptionally strong messages to such environments on their liability where employees are harassed in their workplaces. Our legislation allows for victims of discrimination and sexual harassment to institute a claim against the employer where the employer failed to take steps to ensure a workplace free of such prohibited behaviour. The recent judgment by the Labour Appeal Court in Liberty Group Limited v. Maseko confirmed that an employer may be held liable where it fails to take reasonable steps to protect an employee after being advised of sexual harassment.

The Employment Equity Act is the cornerstone statute guaranteeing the right to equality in the workplace. It gives effect to the prohibition against unfair discrimination contained in the South African Constitution where such discrimination may arise in the employment context. It protects employees against various prohibited actions, including harassment. The EEA also places a positive duty on employers to promote equal opportunity in the workplace through elimination of unfair discrimination. Employers attract liability where they fail to take the necessary steps to ensure that their employees do not breach their obligations under the EEA.

Critically, once an employer becomes aware of allegations of harassment, it should investigate the matter. The Employment Equity Act obliges the employer to "… consult with the relevant parties …" and "… take the necessary steps to eliminate the alleged conduct…".

A sexual harassment policy is essential in any workplace, but even more so is how the employer gives effect to it. Progressive employers should ensure that some level of induction or training on harassment and discrimination is provided to employees, especially newly hired staff. Creating an audit trail of complaints lodged and steps taken could avoid some of the difficulties faced by the employer. Perhaps a process similar to a whistle-blowing hotline, managed externally, could be used to allow staff to report incidents of sexual harassment.

Employers could also consider appointing a senior executive or manager as its public champion in complaints of discrimination or harassment. Employees may be more inclined to approach a senior employee who has gravitas and the backing of the organisation where they fall victim to harassment.

Creating a workplace free of discrimination is not only the right thing to do, it could assist employers in avoiding statutory liability. Employers who disregard workplace discrimination and harassment may find, though, that the negative impact on the organisations' employee relations climate, staff retention and corporate image outweigh the damages awarded by a court.

Written by Johan Botes, Partner and Head of Employment and Compensation at Baker McKenzie in Johannesburg