New Hate Speech Law - What Employers Need to Know

Political tensions and discussions are running high with the highly anticipated national elections just around the corner. While healthy debate is part of a vibrant democracy, employers need to be aware of a new law that aims to prevent hate speech and hate crimes.

On 14 May 2024, the Prevention and Combating of Hate Crimes and Hate Speech Act came into operation. This groundbreaking legislation criminalises certain forms of bias-motivated hate speech and crimes in South Africa.

What constitutes hate speech under the new Act?

The Act prohibits a person from intentionally communicating in any form (written, verbal, electronic, gestures etc.) that could reasonably be construed to demonstrate clear intention to:

·        Be harmful or incite harm

·        Promote or propagate hatred based on race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or migrant/refugee status.

How does this affect the workplace?

As an employer, you have a legal duty to provide a discrimination-free and harassment-free working environment under the Employment Equity Act and other labour laws. The new Hate Speech Act adds yet another layer of responsibility.

You may be held vicariously liable if an employee is found guilty of hate speech in the workplace or in the course of their duties, unless you can prove you took reasonable steps to prevent the conduct. Reasonable steps include having a clear hate speech/crime policy and providing comprehensive communication and training. Apart from the criminal aspect, hate speech is hugely divisive, destroying morale and productivity. It is a fundamental duty of an employer to provide a safe working environment - this includes emotional and psychological safety.

As an employee, you may face dismissal and criminal prosecution. The penalties if found guilty are severe - fines and/or imprisonment of up to five years.

With political campaigning in full force before elections, discussions and disagreements at work around policies, candidates and issues are inevitable. However, you must ensure they don't cross the line into hate speech territory.

As a best practice, you should remind your workforce about your harassment, discrimination and social media policies. Discuss the new law, provide training, and emphasise that hate speech in any form at work, or work functions, or in situations/platforms that may tarnish the employer’s reputation, will have severe consequences per the Act and your policies.

Hate and biases have no place in the workplace. This new law is a timely reminder for employers to be proactive in preventing and addressing prejudice to foster an environment of mutual respect and human dignity for all.

*Please be aware that this article is intended for informational purposes only and as such does not constitute legal advice. If you require specific legal guidance or further information, we encourage you to contact us for expert assistance. We can be contacted at Allardyce & Partners 011-234 2125 or [email protected] and [email protected].

Author: Janet Askew ([email protected])