20 June 2018 Laia
Why SA companies need to step up to the #METOO plate
The #MeToo movement has succeeded in heightening global awareness of the destructive nature of sexual harassment in the modern workplace. One could however argue that it is now the turn of South African businesses to pick up the ‘zero tolerance’ baton and evolve their existing policies and procedures so that they are able to deal with incidents of sexual harassment in the workplace.
At the same time as safeguarding of employees, business owners also have a responsibility to protect themselves from potential financial ruin, if an employee is found guilty of harassment, as the legal process can, in some cases, stretch on for years.
This is why innovative insurance policies such as Employment Practice Liability (EPL) are essential, according to Primrose Siyakatshana, Claims Specialist (Liability) at SHA Specialist Underwriters. “In the event that a company employee is found guilty of a transgression, it is common for claimants to pursue a liability claim against the organisation that the person works for. While these claimants are well within their legal rights, a liability claim against a business places the organisation a potential risk of significant financial loss, which could in turn impact the job security of other employees in the organisation.”
Siyakatshana says that EPL policies provide cover for employers against claims from past and present employees seeking recourse due to a violation of their rights in the workplace. “The policy provides cover for the company’s defense costs, damages, as well as judgements from the Commission for Conciliation, Mediation and Arbitration (CCMA), Bargaining Council and the Labour Court. EPL policies will also cover settlement agreements between the parties, as long as the company has prior written consent from the insurer.”
She adds that, locally, EPL cover is often misunderstood and can be (mis)perceived as a mechanism that protects guilty individuals. “In truth, such types of cover help companies to adopt better sexual harassment and professional conduct policies.”
Siyakatshana explains that companies are obligated by the terms of their EPL cover to comply with all forms of legislation and good practice guidelines around the issue. “The Employment Equity Act of 1998 stipulates that harassment of an employee, because of gender or any other arbitrary basis, is a form of unfair discrimination and is prohibited. The legislation requires that all employers take steps to eliminate unfair discrimination in any employment policy or practice.”
Additionally, she says that the national Code of Good Practice on Handling Sexual Harassment Cases advises how employers should deal with sexual harassment allegations. “The code aims to eliminate sexual harassment in the workplace by providing comprehensive guidelines on sexual harassment policies, as well as procedures to be followed when dealing with sexual harassment claims.”
She states that EPL cover will only pay out a claim if the company’s board can show that they have done everything in their ability to avoid such incidents. “Insurers therefore expect their clients to create a zero tolerance working environment when it comes to sexual harassment, as well as safe reporting mechanisms. Most modern EPL proposal forms even ask if the company has internal sexual harassment policies in place, and whether they provide periodic training to their employees.”
In light of the mounting pressure to root out gender-based harassment, coupled with the potentially far-reaching effects of successful liability claims against negligent companies, local businesses face increasingly complex challenges in dealing with this issue in a responsible manner, she says.
“South African companies need to act sensibly by adopting the right policies to combat the scourge that is sexual misconduct, as well as create an environment in which employees feel safe to report incidents. It may seem bizarre to involve one’s insurance broker in HR matters but having the right liability insurance cover in place can help to ensure that these obligations are met while still protecting the future of the organisation,” Siyakatshana concludes.
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