Vicarious liability is the holding of a person or entity responsible for damages or harm caused by someone else.

Most employers are unaware that they can be held liable for the actions of their employees. Vicarious liability is where someone is held responsible for the actions or omissions of another.

When does vicarious liability apply?

The requirements for the vicarious liability of an employer are threefold:

  • An employment relationship
  • The commission of a delict (wrongful act), and
  • The delict must have been committed within the scope (sometimes course and scope of employment).

When is an employer vicariously liable?

An employer is vicariously liable for the wrongful conduct, albeit an act of sexual harassment or any other discriminatory conduct, towards an employee, which was committed in the course and scope of his/her employment or while engaged in any activity incidental thereto.

If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

What are the steps an employer can take to void vicarious liability?

The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct. So what practical steps can employers take to void vicarious liability for the acts of their employees? The most important thing that the employers can do is to ensure that they have taken all reasonable steps to prevent such acts or omissions from occurring. For example, maintaining an up-to-date equal opportunities policy and providing anti-discrimination training to staff serve to demonstrate to demonstrate an active commitment on the part of the employer towards combating discriminatory practices in the workplace. This would then reduce the likelihood of an employer being held vicariously liable for any discriminatory acts committed by its employees.

If the employer fails to take the necessary steps referred to in subsection (2), and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practical to ensure that the employee would not act in contravention of this Act.

The employer needs to take action with regards to the sexual harassment complaint.

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