Earlier this week, #AmINext flooded social media as women in South Africa drew attention to the magnitude of gender-based sexual violence, rape and murder taking place throughout the country. The hashtag was shared in response to the rape and murder of a 19-year-old UCT student Uyinene Mrwetyana allegedly by a Post Office employee. This follows the global #MeToo campaign that went viral after the allegations against Hollywood producer Harvey Weinstein, who is accused of using his position of power for decades to harass and sexually assault women.

Gender-based sexual violence is an issue requiring systemic transformation, which can be greatly influenced or hindered by our various social structures. A crucial structure for such change is the workplace.

Why employers must address gender-based sexual violence

In the face of this widespread pattern of abuse and efforts by South African citizens to pressure Parliament into declaring gender-based sexual violence a national state of emergency, employers are urged to actively address gender-based sexual violence in the workplace. This is necessary in circumstances where an employee has or continues to perpetrate violence or harassment against a fellow employee, or where an employee has been made a victim of harassment or violence (inside or outside the workplace).

South African law prohibits any form of sexual harassment or violence in the workplace. It is a form of unfair discrimination on the basis of sex, gender and/or sexual orientation and has been described by the Labour Appeal Court as ’the most heinous misconduct that plagues a workplace’.

An employer that does not address allegations of sexual harassment or violence in the workplace may be deemed to have contravened the Employment Equity Act (EEA) by virtue of (i) the perpetrator contravening the EEA by committing sexual harassment or violence; and (ii) the employer failing to take the necessary steps to eliminate the sexual harassment or violence. Consequently, the employer may be liable to pay damages or compensation to the victim. A complainant may also institute a delictual claim against the employer for damages on the basis of the employer’s vicarious liability for the perpetrator’s actions as an employee.

What steps are employers required to take to adequately address gender-based sexual violence

In terms of legislation such as the Occupational Health and Safety Act, employers have a duty to create a workplace that is without risk to the health and safety of their employees. An employer does not, however, have an absolute duty to prevent every remote possibility of harm to its employees. It is only required to take reasonable steps to safeguard its employees against harm that is reasonably foreseeable.

The 2005 Amended Code of Good Practice: Sexual Harassment Cases (the Code) requires employers to maintain a working environment in which the dignity of its employees is respected.  In order to do so, employers are required to adopt appropriate sexual harassment policies that set out clear procedures to deal with sexual harassment in a sensitive, efficient and effective manner and to make assistance available to a victim of sexual harassment.

An employer is required to take action as soon as an act of sexual harassment or violence is brought to its attention. This entails investigating the matter and consulting with all relevant parties, taking the necessary steps to address the harassment or violence in accordance with its sexual harassment policy, the Code and other applicable law, and taking steps to eliminate the harassment or violence. It is also important to take steps to protect the victim and other employees against further harassment or violence by the perpetrator.

Although employers are permitted to report sexual violence to the South African Police Service, they are not as yet obliged to do so by law.

Depending on the severity or frequency of the sexual harassment or violence, an employer may be obliged to take disciplinary action against an alleged perpetrator. This may include situations where the employee commits the harassment or violence outside of the workplace, provided that the employer can show a link between the employee’s conduct and its business.

Many have recently endorsed and adopted the name-and-shame approach to reporting gender-based sexual harassment and violence as a result of the #MeToo campaign. However, the Code requires employers and employees alike to ensure that the identities of persons involved in sexual harassment or violence allegations and proceedings are kept confidential to avoid claims of defamation in the event of false allegations having been made.

What about the victim?

Gender-based sexual violence can have profound effects on an individual’s employment regardless of whether or not the incident occurred at the workplace.

If a victim’s sick leave entitlement has been exhausted, the Code requires employers to consider granting additional paid sick leave where an employee, on medical advice, requires trauma counselling. In addition, employers may consider assisting with the cost of the medical advice and trauma counselling if these are not covered by any applicable medical aid scheme.

As a result of the sexual harassment or violence experienced, a victim may become either temporarily or permanently incapacitated (i.e. inherently unable to perform work to the employer’s established standards of quality or quantity). The Labour Relations Act requires employers to adopt a more empathetic approach towards employees who are injured at work or incapacitated by work-related illnesses.

The duty to accommodate the incapacity of an employee is more onerous in circumstances where the illness or injury can be linked to events that occurred in the workplace. However, even where the sexual harassment or violence was perpetrated outside the workplace, and was beyond the realm of the employer’s control, the employer will still be expected to reasonably accommodate that employee where he or she is incapacitated as a result.

The cost of gender-based sexual violence and constructive steps that employers can take to address it

Extended unforeseen absenteeism, interrupted job performance, a despondent workforce, loss of valued employees and reputational damage are some examples of the costs that employers bear as a direct result of gender-based sexual violence. In conjunction with what the law requires, employers should give serious consideration to vigorously taking further steps to eliminate and prevent gender-based sexual violence in their workplace.

These may include:

• Engaging everyone in the workplace, especially men, on the widespread gender-based sexual violence issues in South Africa and requesting their input and suggestions on how best to eradicate this and support their colleagues.
• Engaging employees in specialised sensitivity and awareness training in relation to inappropriate conduct towards, and remarks made, in the workplace.
• Conducting a workplace climate survey to understand the sexual harassment or violence that may have already taken place and to determine the gaps in the employer’s current policies.
• Creating or updating the sexual harassment policy in place to incorporate employees’ suggestions. The policy should provide clear guidance in relation to the reporting of sexual harassment or violence, the protections in place for victims and the strict sanctions that may be imposed. The policy should be reviewed regularly.
• Establishing a confidential complaint line for employees to report acts of violent conduct, and identify ways for complainants to remain anonymous within the employer’s reporting structure.
• Providing free counselling to address emotional and mental support that employees may need.
• Ensuring that there is sufficient security in place at the workplace. For example, employers should consider providing employees with transport or security escort services, especially when employees are required to work at night.
• Amending its leave policies to provide employees with paid leave in the event that they seek medical attention, counselling or seek to attend a programme as a result of an experience of sexual harassment or violence.
• Introducing activities in the workplace that aim to empower employees. An example is inviting a local victim-services provider to provide training in the workplace or an instructor to give self-defence classes.

Ultimately, the most effective way to eliminate gender-based sexual violence from the workplace is for all individuals to be actively involved, and become part of the solution. In fact, the workplace can be a powerful structure for much-needed social benefit, providing information, education, support and other vital resources that employees may not otherwise get.