By Zinta Strydom – Commercial Director of Riche Attorneys
Harassment in the workplace, whether it be sexual harassment, bullying, or discriminatory conduct, is not only detrimental to the victims, but also poses significant legal risks for employers. In South Africa, the principle of vicarious liability dictates that employers can be held responsible for harassment perpetrated by their employees, even if the employer did not directly participate in or condone the conduct. The key question often revolves around whether the wrongful act was sufficiently connected to the employment. This concept is particularly significant in cases of workplace harassment, where the question often arises: when must employers step into the harassment boxing ring?
Two tests apply to determination of vicarious liability. One applies when the employee commits the delict while going about the employer’s business, which is the standard test. The second applies where the wrongdoing takes place outside the course and scope of employment, which is the “deviation” cases.
1. Booysen v Minister of Safety and Security: Defining the Employer’s Responsibility
In Booysen v Minister of Safety and Security, the court examined whether the Minister was vicariously liable for the actions of a police officer who committed assault while off-duty, but still in uniform. The court ruled that the employer was vicariously liable, emphasizing that the officer’s use of his uniform and the authority associated with his employment were critical factors. Although the officer was off-duty, the uniform created an appearance of authority and power, facilitating the assault. This case established that the employer could be liable if there is a sufficient connection between the employee’s conduct and their employment, even if the misconduct occurs outside of official duties. This is a so-called deviation case.
2. The Underwriters Case: Extending the Workplace Beyond the Office Walls
The Underwriters case dealt with harassment that took place during work-related social events. An employee of an underwriting company engaged in harassing conduct at events outside of regular working hours, prompting the question of whether the employer could be held liable for actions occurring in a social setting linked to the workplace.
The court found the employer vicariously liable, noting that work-related social events are an extension of the workplace. The employee’s conduct, although occurring outside the traditional office environment, was closely tied to his employment.
Key Takeaways for Employers
The lessons from these cases underscore the broad application of vicarious liability in harassment cases:
- Sufficient Connection Test: Employers must understand that liability is not confined to actions within the office or during working hours. The test revolves around whether the misconduct is sufficiently connected to the employment relationship. Uniforms, authority, and work-related settings can extend this connection.
- Proactive Workplace Policies: Employers should implement comprehensive anti-harassment policies, extend training to cover behaviour at work-related events, and ensure that employees understand the consequences of misconduct. This approach not only mitigates liability, but also fosters a safer work environment.
- Swift Response and Accountability: Employers must respond promptly to allegations of harassment, conducting thorough investigations and taking appropriate disciplinary actions. Demonstrating a commitment to addressing and preventing harassment can reduce the risk of vicarious liability.
Conclusion
Vicarious liability in harassment cases compels employers to engage actively in preventing and addressing misconduct by their employees. By doing so, they protect not only their workforce, but also their legal and reputational standing.
