Is an employer vicariously liable where its employee is sexually harassed by a superior employee?
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- In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG); (2021) 42 ILJ 1543 (ECG), the high court paid consideration to the following factors:
- the employee, when committing the act of sexual harassment, acted solely for his own purpose
- the incident happened whilst rendering his services for the employer, thus requiring consideration of the objective test pertaining to deviation matters (see Article 22/2024)
- The high court in casu came to the following conclusions:
- the nature of the employment relationship presented an opportunity for the wrongful act to be executed in the course of carrying out the employee’s duties
- there is a duty on an employer to ensure that the employee placed in a position of trust is capable of such trust
- the trust forged a causal link between the employee executing the wrongful act and the wrongful act itself
- consequently, the employer and the employee, who committed the sexual harassment, are jointly and severally liable for damages the employee (who was sexually harassed) can prove as a result of the wrongful act (i e the act of sexual harassment)
- Kindly take note that this common law liability exists over and above the statutory vicarious liability in terms of s60 of the Employment Equity Act.
