- Sexual harassment can expose employers to significant legal liability if they fail to prevent, investigate or address complaints properly.
- Employees have access to internal processes, the CCMA, the Labour Court and other legal remedies when workplace harassment occurs.
- Employers must create safe workplaces through clear policies, prompt investigations and effective support for complainants.
Sexual harassment is one of the worst forms of workplace misconduct because it affects a person’s dignity, safety and ability to participate fully in working life.
I’ve seen the personal and professional damage it causes, and I have also seen how quickly employers expose themselves when they fail to act.
South African labour law places a clear duty on employers: prevent harassment, respond decisively when it occurs, and protect employees from further harm.
What is sexual harassment?
The Code of Good Practice on the Prevention and Elimination of Harassment (2022) defines sexual harassment broadly. It includes unwanted conduct of a sexual nature, whether it be verbal, non-verbal, physical, digital or implied.
It covers quid pro quo harassment, where job benefits are linked to sexual favours, and hostile work environment harassment, where behaviour creates intimidation, humiliation or discomfort. It also extends to online or after-hours conduct, including messages, images or behaviour on digital platforms.
The test is simple: if the behaviour makes a person feel unsafe, violated or humiliated, it may well constitute harassment. Intent is not the determining factor.
‘We didn’t know’ is not a defence
Employers can be held vicariously liable for sexual harassment committed by employees, managers or even third parties such as clients or contractors. Liability arises when the harassment occurs in the course of employment and the employer fails to take reasonable steps to prevent or address it.
In Campbell Scientific Africa (Pty) Ltd v Simmers (2016), the court focused on the legal weight of one-off, after-hours remarks, and that employers cannot use ignorance as a defence. Even when an employee does not report harassment immediately, often because of fear or a power imbalance, the employer may still be liable if they ought to have known and failed to create a safe, responsive environment. This case remains the benchmark for understanding the proactive duty employers carry.
Reasonable steps include a clear, accessible sexual harassment policy, a trusted reporting mechanism, trained managers and a consistent record of acting promptly and fairly.
Reporting duties for employees and employers
Employees can report harassment to a manager, HR, a designated harassment officer, a trade union representative, or directly to the CCMA or a bargaining council if internal processes fail. Reports may be verbal or written, and employers may not ignore informal disclosures.
The matters of Ndlovu v Department of Health and M v Standard Bank highlight the risks to employers of mishandling reports, delaying investigations, retaliating, and failing to provide a safe, compliant workplace. This case involved a nurse who, after reporting ongoing sexual comments from a supervisor, was moved to a less favourable shift pattern.
The court held that this amounted to retaliation, which is a form of unfair discrimination, and further that moving the complainant instead of addressing the perpetrator was unlawful.
Once a complaint is made, employers have to acknowledge it, ensure the employee’s immediate safety, explain the process and available support, maintain confidentiality and initiate an investigation without delay.
Conducting an investigation
A flawed investigation is one of the quickest ways for an employer to lose a case. A proper investigation needs to begin promptly and has to be handled by an impartial investigator, whether internal or external. It should include interviews with the complainant, the accused and relevant witnesses, as well as the collection of digital evidence such as messages, emails, CCTV or access logs.
A trauma-informed approach is essential. The process has to avoid secondary victimisation and must culminate in a written report with findings and recommendations. If the allegations are substantiated, disciplinary action must follow, up to and including dismissal. Even when external investigators are used, accountability remains with the employer.
Remedies available to employees
Employees who experience sexual harassment have several legal avenues available to them:
- Internal grievance and disciplinary processes: This is often the fastest route for immediate protection.
- CCMA or bargaining council referral: Sexual harassment is treated as unfair discrimination under the Employment Equity Act. Possible outcomes include compensation of up to 24 months’ remuneration, corrective action orders and, in some cases, reinstatement.
- Labour Court litigation: This is appropriate where there are serious or systemic failures by the employer.
- Protection orders under the Protection from Harassment Act: These are useful when harassment continues outside the workplace.
- Criminal charges: Applicable where the conduct amounts to sexual assault, grooming or intimidation.
Why does this area of law continue to evolve?
The 2022 Code of Good Practice expanded the definition of harassment and strengthened employer duties. Accordingly, the courts are increasingly recognising the power dynamics that silence victims, the psychological impact of harassment and the responsibility of employers to create safe, respectful workplaces.
Recent cases, including those from 2025 and 2026, show a judiciary that is more attuned to trauma, retaliation and the realities of digital harassment.
Employers who treat sexual harassment as a misunderstanding or interpersonal conflict are exposing themselves to serious legal and reputational risk.
Practical guidance for employers
- Review and update harassment policies annually.
- Train managers on how to respond to disclosures.
- Provide anonymous reporting channels.
- Act immediately when a complaint is made.
- Document every step taken.
- Support the complainant throughout the process.
Closing thoughts
Sexual harassment is not just a legal issue. It is a human one too. Employees have the right to dignity, safety and respect at work, and employers have the duty to uphold those rights.
When organisations take sexual harassment seriously, they protect their people, strengthen their culture and safeguard their future.
If you need to consult or have a question on these matters, email ann-suhet@vdm.law or phone 011 394 1606 Ext 105. Questions may also be sent to expert@conviction.co.za
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