Sexual Harassment “in the workplace”

Why is this important?

It is unlawful for an employer to discriminate against it’s job applicants, employees and former employees. If it does so, it will be liable for its actions. An employer may also be liable under the Equality Act 2010 for the wrongful actions of their employees or agent. For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval. This means that an employer can be “vicariously liable” for discrimination, harassment or victimisation committed by an employee in the course of employment.

“In the course of employment” is a factual question to be determined by the employment tribunal. In a recent Employment Appeal Tribunal judgment, this has been considered in detail, with useful take aways for employers to consider and understand.

Facts of the case

The employer is a Hospitality Recruitment Agency, where the claimant worked in the Cardiff branch, along with a colleague who was referred to in the Tribunal as CD. On the 1st November 2021, the Claimant incorrectly believed that she was due to work at Hereford Racecourse. She was late arriving at the office in Cardiff where she thought that transport had been arranged to take her to Hereford. Instead, the Claimant was given a lift by CD, who then told her that she was not required to work on that day. The Claimant requested to be taken home, but instead CD drove her to a golf course near Pontypridd where the Employment Tribunal found he subjected her to sexual harassment. The Claimant and CD exchanged mobile numbers. The Claimant and CD exchanged messages via WhatsApp frequently after this, with some messages from CD to the Claimant being sexual in nature.

What did the Employment Tribunal find?

The Employment Tribunal found that sexual harassment had taken place during that car journey. The Tribunal then directed itself as to whether CD was acting the course of employment. In this case the recruitment company had put forward a defence whereby they argued that the actions of CD that day were not done by him “in the course of his employment”.

The Tribunal concluded that CD was not acting the course of his employment from around 1st November 2021 onwards, as CD was not due to work in Hereford that day and there was no requirement by the recruitment company to drive the claimant there. CD had only finished a shift at Amazon a few hours before hand and there was no evidence that he was booked to work at the Racecourse.

The recruitment company had arranged transport to get the employees to Hereford, and the only reason the Claimant didn’t make that transport was because she had missed it. When the Claimant had missed the transport, it as CD who then offered to drive the Claimant, this was not arranged by the company and they didn’t have any knowledge of this.

“Whilst we accept that the Claimant believed she was required to work, and so she believed that she was at all times acting the course of her employment, her belief is irrelevant to the objective conclusion we have to reach as to whether CD was acting in the course of his employment (and not whether he thought he was). Therefore, whilst we have found on the balance of probabilities that CD did sexually harass the Claimant in his car on the 1st November 2021, both through unwanted physically touching and comments, the Respondent is not liable for the actions of CD under section 109(1) of the Equality Act 2010, because the actions of CD were not done in the course of his employment with the Respondent”.

What happened next?

An appeal was lodged against the finding of the employment tribunal by the Claimant, where she argued that the actions of CD did occur in the course of employment according to the Equality Act 2010. The case was heard in the Employment Appeal Tribunal, where they gave some useful guidance when considering the provisions contained in the Equality Act and other case law:

• The words “in the course of employment” are used in the sense in which every layman would understand them.

• Anti-discrimination legislation should be given a broad interpretation.

• The application of the phrase “in the course of employment” will be a question of fact for each employment tribunal to resolve, in light of the circumstances presented to it.

• Whilst it is not possible “or desirable” to lay down any hard and fast guidance some factors will generally be relevant when considering if the act was done inside or outside of work:

• If the “thing” was done outside of work the employment tribunal should consider whether there is nevertheless a sufficient “nexus or connection with work”.

• The Employment Tribunal may need to consider whether the circumstances are such as to make the situation an “extension of work and the workplace.”

• Whether the “thing” is done with the employer’s or principal’s knowledge or approval does not matter.

The EAT gave a helpful example of if an event after work is organised by the employer who knows and approves the attendance of their employees, and an act of sexual harassment occurs at the event, the fact that the employer knew and approved of the alleged harasser’s attendance, might be relevant to the question of whether that person was acting in the course of employment.

What did the EAT find?

The EAT considered that the fact that a person’s motivation in offering a lift was having an opportunity to harass does not mean that the person is not in the course of employment. - “otherwise the protection would be excessively watered down which would be inconsistent with the required broad interpretation of anti-discrimination legislation.” Secondly, they found that whilst the tribunal found that the act took place outside of work, the tribunal failed to go on to consider the next question, which was whether the circumstances were an extension of work or the workplace. They should have considered CDs actions prior to the incident, namely CD sending the claimant texts whilst CD worked for the respondent at a shift, and whether it formed part of a course of conduct with the sexual harassment when CD gave the claimant a lift.

The EAT also noted that it was relevant that CD may have been exploiting the fact that the claimant believed she was at work and that she thought CD was also acting as part of his work responsibility.

As a result, the EAT sent the case back to the original employment tribunal for further consideration.

What are the key takeaways from this case?

It is notoriously difficult to determine what a tribunal would consider to be in the “course of employment” – particularly where incidents take place either outside of work premises or outside of working hours. The EAT have provided some useful guidance based upon case law and clarified that if an employer is organising a social event outside of the workplace where they have some role in approving attendees, it may be relevant to the question of whether the alleged harasser was acting in the course of employment if the employer knows or approves the attendance of that alleged harasser.