This article was written by Kelly Armstrong, a Candidate Attorney at Norton Rose Fulbright South Africa
A decision recently handed down by the Labour Appeal Court finds that, even where an employer does not itself have a policy or practice which discriminates against an employee, if the employer is associated with another entity which does have such a discriminatory policy or practice affecting its employees, the employer may be liable if it does nothing and “acquiesces” in such discrimination.
In this case, an employee was dismissed after she was refused entry into her place of work by the employer’s landlord because she was pregnant. The employer in question was involved in the business of producing bottled water, which water was obtained from springs on the premises of a religious institution. The religious institution had a code of conduct which prohibited, amongst other things, “amorous relationships between any two persons outside of marriage” and which stipulated that, in the event that it was not adhered to, the “offender” could be refused access.
The religious institution, therefore, refused to allow the pregnant employee onto its premises because she had violated the code by falling pregnant. The employee subsequently instituted an unfair dismissal case against her employer.
The employer argued that it had not itself treated the employee unfairly but that it was the religious institution which had refused the employee access. The employer viewed this as an issue to be resolved between the employee and the religious institution. It was further argued that the code of conduct did not form part of the employer’s terms and conditions of employment and therefore, the employer could not be considered to have treated the employee unfairly.
The court held that, even though the religious institution was not the employer, the employee’s tender of services was rendered impossible to carry out because of the conduct of the institution. Furthermore, the employer had chosen to associate itself with the religious institution and had acquiesced in the decision not to permit the employee onto the premises because it had done nothing to assist the employee when she was denied access.
Seeing as the employer acquiesced in the religious institution’s discriminatory practice and did nothing to assist the employee, the employer was found to have violated the constitutional obligation to act fairly in making decisions affecting its employees.
The significance of this ruling is that, even in situations where the employer itself does not have policies or practices which discriminate against employees, if the employer is aware that an institution with which it is associated has a discriminatory practice and does nothing, that employer could be in violation of its constitutional duties and can be held liable.