Over the last few months, we’ve been out and about delivering a lot of sexual harassment training. We can’t think why…
One thing that people don’t always appreciate is that they themselves and their employers can be liable for their actions outside of the traditional workplace (we always get a gasp in the room and people start paying more attention when we explain this).
Without getting too technical, under the Equality Act 2010, employers can be held liable for the acts of their workers where those acts take place “in the course of employment.”
But, how do we know whether something is “in the course of employment”? It’s one of those rubbish legal terms that means everything and yet nothing isn’t it?
The recent case of AB v Grafters Group Ltd (t/a CSI Catering Services International) provides a timely reminder for us all actually, what with the recent changes in the Worker Protection Act 2023 and the upcoming changes in the Employment Rights Bill.
In this case, AB was a hospitality agency worker for Grafters. One day, she thought she was due be at work at Hereford Racecourse so went to Grafters’ office thinking transport had been arranged for her. It hadn’t. Instead, she was talked into being given a lift by a colleague, CD.
CD knew that AB was not actually meant to be working that day. Instead of taking her home, like she asked, CD drove AB to a golf course where he showed her pornographic videos, made inappropriate comments (asking her if she knew what an orgasm was and referring to a threesome) and touched her without her consent (trying to pass this off as a “wet willy”). Thankfully, AB managed to escape and matters were reported to a manager and then to the police.
AB brought claims against Grafters Group for sexual harassment. The Employment Tribunal at first instance found that harassment had occurred. However, the Tribunal said that Grafters were not liable for the harassment because CD could not be said to have been acting “in the course of employment” at the time of the incident.
The reason for this? Well, the Tribunal noted that the incident had occurred outside of working hours and outside of normal work locations, AB had not been scheduled to work and the lift was not arranged by Grafters, nor did Grafters know about it until afterwards.
AB appealed and the Employment Appeal Tribunal (the EAT) upheld that appeal. In doing so, they provided a helpful reminder of the key principles for assessing whether an act is in the course of employment. Let us summarise these for you:
- It is the alleged perpetrator who must be acting “in the course of employment”, not the complainant;
- The term “course of employment” should be given its normal, everyday meaning and should be interpreted broadly;
- Each case depends on its specific facts and tribunals must look at all the circumstances to decide if the act was work related. Key factors to consider will be where and when the act happened, but other relevant factors should be taken into account;
- Even if the act occurs outside of the workplace or working hours, if there is a sufficient “nexus or connection with work” it can still be deemed to be in the course of employment. Tribunals should consider whether the circumstances of the situation mean that the act occurs in an “extension of work and the workplace”;
- It doesn’t matter if the employer knew or approved of what happened, something can still be in the course of employment without knowledge on the part of the employer.
Here the EAT said that the Tribunal should have also looked at events leading up to the harassment. This included WhatsApp messages that CD had sent to AB while working which were sexual in nature and which formed a pattern leading up to the incident. The EAT also said that the Tribunal should have considered how closely CD’s role was connected to why AB was in his car at the time, particularly as CD had previously given AB a lift to work. This meant he was able to exploit AB’s incorrect belief that she was supposed to be working which in turn meant there was a sufficient connection to work. So, the EAT said CD’s actions were in the course of employment.
Crikey! Something as seemingly innocuous as an unplanned lift to work can count as being “in the course of employment” and can lead to liability for employers. What do we even do with that knowledge?
Well, the usual Precept rules apply here: have robust policies and communicate those policies by way of training. It is really important that we factor the risk of unplanned events outside of work into any risk assessments we have in place and into those policies, procedures or training that we’re implementing.
Now, when it comes to risk assessments, we’re finding that lots of employers still don’t have a sexual harassment risk assessment in place. This is despite this being a requirement to comply with our duties under the Worker Protection Act 2023 and despite us banging on and on about them.
And remember, if you don’t comply with that duty you’re going to face increased financial awards in the Tribunal if sexual harassment is found and that could amount to a lot of money.
Please please please make sure you’ve looked into this and implemented one. If you’re not sure how to go about it, Precept can help you with all things preventing sexual harassment. Call us on 01332 866610 or email enquiries@precepthr.com.
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