SEXUAL HARASSMENT: EMPLOYER LIABILITY & MANDATORY RESPONSES

Written by Njabulo Thabethe

Every salon/spa owner wants to create a workplace where employees feel respected, valued, and safe. A positive working environment not only improves staff morale but also builds trust with clients and strengthens the reputation of the business. Unfortunately, sexual harassment can destroy that environment if it is not dealt with properly.

Many employers believe sexual harassment is only their problem if they are personally involved. This is not true. Under South African labour law, an employer has a legal duty to take reasonable steps to prevent sexual harassment and to act quickly when a complaint is made. Ignoring a complaint or failing to investigate it properly can expose the employer to legal action, financial penalties and serious reputational damage.

This article explains what sexual harassment is, what the law expects from employers, and the practical steps every salon/spa owner should take to protect both employees and the business.

What is Sexual Harassment?

The Employment Equity Act 55 of 1998 recognises sexual harassment as a form of unfair discrimination. This means it is not simply bad behaviour—it is against the law.

Sexual harassment is any unwanted behaviour of a sexual nature that makes another person feel uncomfortable, intimidated, humiliated or unsafe. The important word is "unwanted." Even if one person believes they are joking or flirting, it may still amount to sexual harassment if the other person does not welcome the behaviour.

Sexual harassment can happen to anyone. It can involve women or men, and the harasser can be a manager, supervisor, co-worker, client, supplier or even another person who visits the workplace.

What Does Sexual Harassment Look Like?

Many people think sexual harassment only involves physical contact, but this is not the case. It can take many different forms, including:

• Making sexual jokes or comments.

• Repeatedly asking someone out after they have said no.

• Sending inappropriate text messages, pictures, or social media messages.

• Touching someone without their permission.

• Commenting on an employee's body or appearance in a sexual way.

• Making sexual gestures.

• Promising workplace benefits in exchange for sexual favours.

• Threatening someone because they refused sexual advances.

In the beauty industry, employees often work closely together and interact with clients throughout the day. This makes it even more important for employers to set clear boundaries about acceptable behaviour.

Why Should Employers Be Concerned?

Besides being the right thing to do, preventing sexual harassment is a legal responsibility.

Section 60 of the Employment Equity Act states that if an employer becomes aware of sexual harassment and fails to take the necessary steps to deal with it, the employer may also be held legally responsible.

This means that saying, "I didn't know what to do," or "It wasn't my problem," is not a defence if reasonable action could have been taken.

If an employer ignores complaints or fails to investigate them properly, the business could face:

• Compensation claims.

• Legal costs.

• Damage to its reputation.

• Loss of employee trust.

• High staff turnover.

• Reduced productivity.

For a small salon/spa, even one successful legal claim can have serious financial consequences.

What Does the Law Expect Employers to Do?

South African labour law does not expect employers to prevent every incident from happening. However, it does expect employers to take reasonable steps to prevent harassment and respond appropriately when it occurs.

The Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace, published in 2022, provides guidance on what employers should do.

1. Have a Clear Workplace Policy

Every salon/spa should have a written policy explaining that harassment will not be tolerated.

The policy should explain:

• what sexual harassment is;

• how employees can report it;

• who they should report it to;

• how complaints will be investigated; and

• what disciplinary action may be taken if misconduct is proven.

A policy should not simply be filed away in a drawer. Employees should know where to find it and understand what it says.

2. Encourage Employees to Report Problems

Many victims never report harassment because they fear they will not be believed or that they may lose their jobs. Employers should encourage employees to speak up as early as possible. The sooner concerns are reported, the easier they are to investigate and resolve. Employees should also know that reporting harassment will not result in punishment or unfair treatment.

3. Take Every Complaint Seriously

Some employers make the mistake of dismissing complaints as "just joking" or "a misunderstanding."

Even if the employer is unsure whether sexual harassment occurred, every complaint should be investigated fairly and without delay. This means listening to both sides, speaking to witnesses if necessary, and collecting any relevant evidence such as text messages or emails.

It is important that the employer remains neutral until all the facts have been considered.

4. Protect Everyone During the Investigation

Both the complainant and the person accused should be treated fairly throughout the investigation. Where necessary, employers may temporarily change work schedules, reporting lines or seating arrangements while the matter is being investigated. Confidentiality should also be maintained as far as possible. Gossip and rumours can make an already difficult situation much worse.

5. Take Appropriate Action

If the investigation shows that sexual harassment occurred, the employer must take appropriate disciplinary action. The sanction will depend on the seriousness of the misconduct. Minor inappropriate comments may result in counselling or a written warning, while more serious conduct, such as unwanted touching, repeated harassment, abuse of authority or demanding sexual favours—may justify dismissal, even if it is a first offence. Each case should be considered on its own facts.

Clients Can Also Be the Problem

Salon/spa owners sometimes forget that harassment does not only come from employees. Clients may also behave inappropriately towards stylists, therapists, receptionists or apprentices. If a client repeatedly harasses an employee, the employer should take steps to protect that employee. This may include warning the client, refusing service, or asking the client to leave the premises. Employees should never be expected to tolerate harassment simply because the person is a paying customer.

Creating a Respectful Workplace Culture

The best way to deal with sexual harassment is to prevent it from happening in the first place.

• Employers can do this by:

• discussing workplace behaviour during induction;

• providing regular training;

• leading by example;

• treating complaints fairly and consistently;

• encouraging respectful communication; and

• making it clear that everyone deserves to be treated with dignity.

When managers behave respectfully, employees are more likely to follow their example.

What Have the Courts Said?

South African courts have repeatedly confirmed that employers have a duty to provide a safe working environment.

In Media 24 Ltd and Another v Grobler, the Court held that an employer could be held liable because it failed to protect an employee from ongoing sexual harassment after becoming aware of the problem.

In Liberty Group Ltd v M, the Constitutional Court again highlighted the serious harm caused by workplace sexual harassment and confirmed the importance of protecting employees' dignity and equality.

These cases remind employers that failing to act can sometimes be just as serious as the harassment itself.

In conclusion, every employee has the right to work in an environment where they feel safe, respected, and treated with dignity. As an employer, creating that environment is not only good for business; it is also a legal obligation.

Salon owners do not need to be legal experts to comply with the law. They simply need to take complaints seriously, investigate them fairly, act consistently and create a workplace where harassment is never accepted.

By putting clear policies in place, encouraging employees to speak up and responding quickly when problems arise, employers can protect their staff, comply with South African labour law and build workplaces where everyone has the opportunity to thrive.