Here is a situation that clients have found themselves faced with: For the purposes of workplace wellbeing, an in-house social worker that your employees can confide in when they are facing difficulties in their personal and professional lives has been hired. An employee has approached the social worker and alleged that they have been sexually harassed by another employee. Does the social worker have an obligation to disclose these allegations and report them to the employer, and if the social worker fails to disclose these allegations, could the employer be held liable for the sexual harassment?
Section 6(3) of the Employment Equity Act, No. 55 of 1998 (“EEA”) prohibits unfair discrimination, including sexual harassment, in the workplace. If an employee is found guilty of sexual harassment, their employer may be held liable for their conduct in terms of section 60 of the EEA. Often an employer is held liable in such circumstances because it is found that it failed to adequately address the allegations of sexual harassment when they were reported. But what if the allegations of sexual harassment were never reported, i.e. the social worker never disclosed the allegations to the employer?
While there is an obligation on employees who form part of the employer’s management team, such as the head of department, line manager and human resources, to disclose allegations of sexual harassment made to them regardless of the wishes of the complainant employee, social workers must first consider their ethical responsibility of confidentiality before they may disclose or report allegations of sexual harassment.
A social worker may be registered with the South African Council for Social Services Professions (“SACSSP”). The SACSSP has a code of conduct and ethics, the “Policy Guidelines for Course of Conduct, Code of Ethics and the Rules for Social Workers” (“Code of Ethics”), that those registered with it must comply with and abide by. The Code of Ethics provides that one of the highest ethical responsibilities that social workers have towards their clients and those who share information with them in their capacity as social workers is confidentiality. Confidentiality is of utmost importance in the social services, and a breach of confidentiality is considered unprofessional and unethical and may result in disciplinary action against the social worker who breaches it.
The Code of Ethics provides that before a social worker can disclose any information, they must first obtain the consent of the client or the person who disclosed the information, and they must ensure that the third party to whom they intend to disclose the information holds the same ethical responsibility of confidentiality as those in the social services professions.
Interestingly, Annexure C to the Code of Ethics (“Annexure C”) directly addresses the situation where information has been shared with a social worker by someone who has the same employer as the social worker. Annexure C provides guidelines that the social worker must take into account when deciding whether or not to disclose information shared with them.
These guidelines are meant to assist the social worker in deciding whether or not to disclose the allegations of sexual harassment to the employer and include considering whether or not:
• There is a provision in the complainant employee’s employment contract waiving confidentiality when consulting the social worker when it is in the best interests of the employer and the complainant employee to do so;
• There is a provision in the social worker’s employment contract placing an obligation on the social worker to disclose information given to them by employees who consult them. In this regard a social worker is obliged to only disclose those facts that are of relevance to a specific circumstance and that are required for the successful management of the employer’s organisation;
• There is a written contract between the social worker and the employee who confides in the social worker which clearly addresses the principle of confidentiality and how it will be implemented; and
• The social worker has, as far as possible, obtained the consent of the employee that confided in them to disclose the allegations made.
Therefore, a social worker has no obligation to disclose allegations of sexual harassment to the employer if it means that their ethical responsibility of confidentiality will be breached. If the employer is not aware of the allegation of sexual harassment as the social worker has not disclosed same, it could be contended that the employer has not contravened the provisions of the EEA and may not be liable in terms of section 60 of the EEA.
Employers are cautioned to, if there is a social worker in their employ, ensure that the guidelines in Annexure C of the Code of Ethics are implemented, namely:
1. The social worker’s responsibilities towards the employer regarding the confidentiality of information obtained from employees must be contained in the social worker’s employment contract;
2. There must be a written contract between the social worker and the employee that confides in them, and the written contract should clearly address the principle of confidentiality and the implementation thereof, specifically referencing the social worker’s responsibilities towards both the employer and the employee;
3. There is a provision in the employee’s employment contract consenting to the social worker disclosing information shared with the social worker during consultations if such information is in the best interests of the employee and the employer;
4. If information is to be disclosed by the social worker, only the relevant facts of the specific circumstance that are required for the successful management of the organisation should be disclosed. The importance of such disclosure must be explained to the employee, and the matter should be treated with sensitivity and only be disclosed to the specific manager concerned; and
5. The social worker must as far as possible directly obtain the employee’s consent before disclosing any information.
Employers should facilitate the disclosure of sexual harassment allegations by the social worker by implementing the guidelines in Annexure C to the Code of Ethics to avoid liability in terms of section 60 of the EEA. It is also suggested that employers who hire social workers review and update their sexual harassment policies to make provision for the guidelines in Annexure C to the Code of Ethics.