The Code was recommended by the Commission for Employment Equity (CEE), a tripartite structure that reports to the Ministry of Employment & Labour. 

It replaced the Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace, published in 2005 and provides guidance to employers and employees on the elimination and prevention of harassment as a form of unfair discrimination in the workplace.

The new code follows the introduction of the International Labour Organization’s Convention No. 190, the first international treaty to recognise the right of everyone to a working world free from violence and harassment, which came into force on 25 June 2021.

It obliges ratifying states to adopt an inclusive, integrated and gender-responsive approach to violence and harassment in the workplace and to enact necessary legislative changes.

The Code applies to all employers and employees, as provided for in the Employment Equity Act (EEA), irrespective of whether they operate in the formal or informal sector.

It broadens the concept of harassment, providing protection against it in any situation in which the employee is working, or which is related to their work (for example work-related trips, training or social activities, work-related communications, employer-provided accommodation, when commuting to and from work in transport provided by the employer or the location of employees who are required to work virtually, amongst others), and not only when employees are on-duty at the physical workplace.

The Code also recognises racial, ethnic or social origin harassment as specific forms of harassment.

The term 'harassment' is not defined in the EEA, but, according to the Code, it is generally an  unwanted (or unwelcome) conduct which:

• Impairs dignity;
• creates a hostile or intimidating work environment for one or more employees, or is calculated to, or has the effect of inducing submission by actual or threatened adverse consequences; and
• is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.

To establish whether there has been harassment, four factors have to be considered: whether the harassment is on the prohibited grounds of sex, gender, and/or sexual orientation; whether the sexual conduct was unwanted or unacceptable; the nature and extent of the sexual conduct, and the impact of the sexual conduct.

Employers are required to prevent violence and harassment in the workplace, also implementing alle the measures provided in the Promotion of Equality and Prevention of Unfair Discrimination Act, the Labour Relations Act, the Occupational Health and Safety Act, and the Protected Disclosures Act.

They should conduct an assessment of the risk of harassment to employees, implementing an appropriate policy addressing harassment, conducting training to educate employees about the various forms of harassment and implementing ongoing awareness programmes.

Business Unity South Africa (BUSA) was involved in those relevant issues that affects business interests in the labour market. It has two representatives in the Commission for Employment Equity (CEE) that recommended the adoptiond of the Code and partecipated in the process that introduced International Labour Organization’s Convention No. 190 in South Africa.