Harassment at work is not only a problem between two employees. Under South African law, it is a matter the employer must prevent, investigate and resolve. An employer that does not act can be held liable for the harasser’s conduct, and may face claims for damages, CCMA disputes and reputational harm.
The rules have been in place for several years, yet the courts continue to see cases where employers handled complaints poorly. In a judgment delivered in May 2026, the Labour Court made it clear that an informal resolution, such as an apology accepted by the complainant, does not automatically end the employer’s responsibility.
This article explains what the law requires, what the Code of Good Practice expects from employers, and the practical steps every business should take.
The legal framework
Section 6(3) of the Employment Equity Act 55 of 1998 (EEA) provides that harassment of an employee is a form of unfair discrimination. The prohibition protects employees and job applicants.
The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, issued under the EEA, came into effect on 18 March 2022. It replaced the older code that dealt only with sexual harassment. Courts and the CCMA must take the Code into account when interpreting and applying the EEA.
South Africa also ratified the International Labour Organization’s Violence and Harassment Convention, 2019 (No. 190) in November 2021, which reinforces the obligation to address violence and harassment in the world of work.
What counts as harassment
The Code takes a broad view. Harassment is unwanted conduct that impairs dignity and creates a hostile or intimidating work environment, or is calculated to induce submission through actual or threatened adverse consequences. It may be linked to a prohibited ground such as race, gender or sexual orientation, but the Code also covers bullying and other abusive behaviour.
The Code specifically addresses:
- sexual harassment, including unwelcome physical, verbal or non-verbal conduct, quid pro quo harassment and sexual favouritism;
- racial, ethnic or social origin harassment;
- bullying, intimidation and psychological abuse; and
- physical violence and threats.
Who is protected, and where
The Code applies to all employers and employees, and extends to job applicants, volunteers, interns and apprentices. Harassers and victims can include owners, managers, clients, customers, suppliers and contractors.
It also applies beyond the office. Work trips, training, work functions, employer-provided transport and accommodation, and work-related communications, including messages, email and online meetings, are all covered. For businesses with hybrid or remote teams, harassment on messaging platforms is a real workplace risk.
When the employer becomes liable
Section 60 of the EEA makes an employer liable for an employee’s harassment of a colleague in certain circumstances. If harassment is brought to the employer’s attention, the employer must consult all relevant parties and take the necessary steps to eliminate the conduct. If it fails to do so, and the employee is found to have contravened the EEA, the employer is treated as having contravened it too.
An employer can avoid liability by showing that it did all that was reasonably practicable to ensure that the employee would not act in breach of the EEA. In practice, this means having a working policy, training staff and acting promptly on complaints. A policy that sits in a drawer will not be enough.
The 2026 Labour Court decision
In the May 2026 case, an employee made sexual advances towards a colleague. At an initial meeting, he admitted the conduct and apologised, and the complainant said an apology was all she wanted. She later concluded that he was not genuinely remorseful and asked to pursue the matter formally. He was disciplined and dismissed, and the Labour Court dismissed his review.
The court rejected his argument that the informal meeting was a prior disciplinary process. It confirmed that a complainant may choose an informal route under the Code, but the employer must still assess the risk to the complainant and others, and act formally where the circumstances require it. The court also criticised the employer for taking about a year to finalise the matter. The lesson for employers is to treat informal resolution as one option, not as a way to close the file.
What the Code expects from employers
- A harassment policy that defines harassment, sets out informal and formal complaint procedures, protects confidentiality, and prohibits victimisation of complainants and witnesses.
- Risk assessment of harassment as a workplace hazard, alongside other health and safety risks.
- Training and awareness for employees and managers, repeated regularly.
- A designated person outside the line of command who employees can approach for advice and support.
- Support for complainants, which may include counselling, temporary changes to reporting lines and, in serious cases, additional leave.
- Appropriate sanctions, up to dismissal for serious or repeated harassment.
Complainants who are not satisfied can refer disputes to the CCMA, which can arbitrate sexual harassment disputes, or to the Labour Court.
Steps to take when a complaint is made
- Take it seriously. Acknowledge the complaint promptly and in writing.
- Protect the complainant. Consider interim measures, such as separating the parties or a precautionary suspension, without penalising the complainant.
- Explain the options. Tell the complainant about the informal and formal routes, and record their choice.
- Assess the risk. Consider the seriousness of the conduct, any history and the risk to others. Some cases require formal action regardless of the complainant’s preference.
- Investigate fairly. Use an impartial investigator, keep the process confidential and give the accused employee a fair opportunity to respond.
- Act and follow up. Apply a proportionate sanction, check in with the complainant afterwards, and finish the process without unnecessary delay.
- Keep records. Document every step. Records are your evidence that you took reasonably practicable steps.
How O’Reilly Law can help
We help employers draft and update harassment policies in line with the Code, train managers, and run or oversee workplace investigations. We advise on disciplinary action, represent employers at the CCMA and Labour Court, and assist employees who need advice on harassment they have experienced at work.
Contact us to review your harassment policy or discuss a complaint.
Related reading: Precautionary suspension of employees: a practical guide · The new Code of Good Practice: Dismissal (2025)
This article is general information and not legal advice. Correct as at November 2026.