On 7 March 2017, the Labour Appeal Court handed down a judgment in terms of which it found Liberty Group Limited (“Liberty”) liable under section 60 of the Employment Equity Act (“EEA”) for having failed to take reasonable steps to protect an employee on becoming aware of her sexual harassment at work by her immediate line manager.

Section 60(1) of the EEA provides that if it is alleged that an employee, while at work, contravened a provision of the EEA, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of the EEA, the alleged conduct must immediately be brought to the attention of the employer. If the employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of the EEA.

After informing a manager of the sexual harassment, the manager merely dismissed the employee’s complaint and informed the employee to consult Liberty’s sexual harassment policy to determine whether the conduct complained of amounted to sexual harassment and if so, the requirements to lodge such a complaint.

The employee eventually resigned citing that Liberty had made the working environment intolerable due to the fact that management had failed to address her complaint of sexual harassment.

The Labour Court found that Liberty “was made aware of the sexual harassment before the employee resigned and failed to take the necessary steps then”. Liberty took the matter on appeal on the basis that the Labour Court had failed to apply section 60 of the EEA correctly. The Labour Appeal Court held that the EEA requires every employer to promote equal opportunity in the workplace and ensure that no person unfairly discriminates, directly or indirectly, against an employee, in any employment policy or practice on one or more grounds, which includes harassment. It is trite that harassment was a form of unfair discrimination in s 6(3), as the EEA recognised that such conduct poses a barrier to the achievement of substantive equality in the workplace by creating an arbitrary barrier to the full and equal enjoyment of an employee’s rights, violating that person’s dignity and limiting their right to equality at work.

The LAC highlighted that the debate surrounding the employer’s liability arising from section 60 has often turned on whether the reference to an employer’s obligation “to ensure that the employee would not act in contravention of this Act” is intended to mean that the employer take steps in advance to eliminate future conduct.

Savage AJA favoured the interpretation given to section 60 of the EEA in Biggar v City of Johannesburg, Emergency Management Services [2011] 6 BLLR 577 (LC) in which the Court found that the employer had failed to take all necessary steps to eliminate racial abuse perpetrated by its employees and to have failed to do everything reasonably practicable to prevent continued harassment, was the approach required by section 60 of the EEA.

The LAC held that the requirements for an employer’s liability to arise under the EEA where the complaint raised is one of sexual harassment where: (i) the sexual harassment conduct complained of was committed by another employee; (ii) it was sexual harassment constituting unfair discrimination; (iii) the sexual harassment took place at the workplace; (iv) the alleged sexual harassment was immediately brought to the attention of the employer; (v) the employer was aware of the incident of sexual harassment; (vi) the employer failed to consult all relevant parties, or take the necessary steps to eliminate the conduct will otherwise comply with the provisions of the EEA; and (vii) the employer failed to take all reasonable and practical measures to ensure that employees did not act in contravention of the EEA.

The LAC found that the employee’s report of the sexual harassment to the manager constituted a report as required by s 60(1) of the EEA. Liberty had failed to act on the complaint in accordance with section 60(2).

This bulletin was supervised by partner, Melanie Hart.