Acumen News & Events

14 June 2010

Can an employee bring a claim against an employer when they have been sexually harassed by a non employee?

Do an employers obligations extend outside the workplace?

Section 3 of the Code of Good Practice on the Handling of Sexual Harassment Cases defines sexual harassment as the “unwanted conduct of a sexual nature”.

A large amount of responsibility is placed on the employer by The Employment Equity Act 1998 when one of their employee’s is sexually harassed by another employee. However, where the person harassing the employer is not also an employee there is no obligation on the employer.

Where an employee is sexually harassed by a non-employee which may occur when the harasser is a client of the employer, the employee has 2 possible claims: 

• A claim against the harasser in terms of the Promotion of Equality; and
• Prevention of Unfair Discrimination Act 4 of 2000 and a claim against the harasser’s employer in terms of the law of delict.

However, for the victim to establish a successful claim against the harasser, they must prove that:

1. The conduct of the harasser falls within the definition of harassment. This is, in terms of section 1(1) and
2. That a case of harassment is proved on the face value of the facts. This is in terms of section 13.

The Equality Courts have the jurisdiction to order a variety of remedies including payment of damages; issuing a restraining order; or ordering the harasser to apologise to the victim.

In respect of a possible claim under of the law of delict, an employer may be vicariously liable for the sexual harassment caused by an employee against a non employee. Vicarious liability makes the employer liable for the wrongs committed by his employee. For the victim to have a successful claim against the harasser’s employer they must prove that:

All the elements of a delict are present, ie a wrongful act, fault, causation and damages;

• The sexual act must be committed within the harasser's scope of employment; and
• The harasser must be an employee of the employer. 

However, where the harasser acts outside the scope of his employment contract, the employer will not be liable for such an act. However, in the case of Grobler v Naspers 2004(4) SA 220(C) the court held that the employer is liable for the wrongs of his employees, where the risk that they may perform a wrong is foreseeable.

It should also be noted that in order to bring a successful vicarious liability claim, the victim, in proving the elements of a delict, would need to prove some type of loss, either monetary or emotional.

Are you aware how to properly handle an allegation of harassment in your workplace? For further advice on this matter please call us today on 01244 357 211.