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In terms of our common law, there is a price that the employer has to pay for being able to issue instructions and exercise control over its employees while the latter are going about their duties. That price is liability for the wrongful acts of employees committed while acting in the course and scope of their duties, generally referred to as ‘vicarious’ liability.

The principle of vicarious liability means that the employer becomes automatically liable, together with the employee, for losses or damages suffered by others (whether fellow employees or third parties) as a result of the employee’s wrongful act committed in the course and scope of his or her employment. For example, if a vehicle driver, while making a delivery, drives negligently and collides with another vehicle, damaging the vehicle and injuring the other driver, the employer may be sued civilly for the damage to the other vehicle and the other driver’s injuries.The employer is only civilly and not criminally liable. This means that, besides the civil claims against the driver and the employer, the driver may also be prosecuted for reckless or negligent driving.

Whether the employee has acted in the course and scope of his or her duties is always a factual question to be determined with regard to the peculiar facts of each case. The mere fact that the employee, in the example above, deviated from his route at the time of the accident, does not in itself absolve the employer from liability. The liability also applies only to wrongful acts, i.e. there is no liability if the employee has acted lawfully. If the employee, for example, knocks someone down with the fist in self defence, neither the employee nor the employer can be held liable.

Wrongful acts can include anything from all forms of discrimination by employees against others (e.g. sexual harassment or racism) to assault, motor vehicle accidents and any other negligent or deliberate behaviour by employees that causes harm or loss to others.

There is little the employer can do to avoid this type of liability, except perhaps to ensure that employees are well trained, provided with safe equipment and tools and, wherever possible, properly supervised. Adequate third party liability insurance is essential.

In the case of unfair discrimination, in addition to liability under the common law, the employer’s vicarious liability also arises under S60 of the Employment Equity Act. That provision states that an employer who has become aware of any discriminatory act committed by one of its employees must consult with all relevant parties about the matter and take reasonable steps to eliminate the alleged conduct. If the employer fails to do so, and it is proved that the employee in question did discriminate, the employer is deemed also to have discriminated. Its only defence would be that it did all that was reasonably possible to ensure that the employee did not discriminate.

While employers can go a long way towards avoiding liability by ensuring that clear rules are in place to prohibit discrimination and by also sensitising employees about it, case law examples abound where employers, who did all of those, were nevertheless successfully sued for not taking reasonable steps to deal with incidents of discrimination. Typically, managers in those cases turned a blind eye to complaints or grievances regarding discrimination, or dragged their feet in dealing with the problem, or failed to take steps to protect and support the victim. This lack of action, or inadequate attention to the problem by managers, can undo all the good that an employer has done in terms of creating a workplace where diversity is accommodated and where people’s dignity and differences are respected. Moreover, claims arising from discriminatory conduct can be expensive and, importantly, also harm the organisation’s reputation.

Barney Jordaan of Maserumule Employment Consultancy for

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