Employer liability for employee's acts of sexual harassment - "in the course of employment" test

The Employment Appeal Tribunal (EAT) has recently considered in detail the test for whether an employer is liable under the Equality Act 2010 for sexual harassment carried out by one employee against another. The critical test is whether the alleged harasser carried out the relevant acts “in the course of employment”.

Facts

In the case of AB v Grafters Group Ltd (Grafters) the employer is a Hospitality Recruitment Agency. AB, the claimant, and a colleague CD, worked from the Cardiff Branch of Grafters. In October 2021, CD had driven AB to work at Chepstow races. They had swapped numbers and after that they had exchanged messages, some of which from CD were sexual in nature. In the early hours on 1 November 2021, CD sent AB various messages and called her repeatedly. He was on a shift for Grafters at the time. That same day, AB incorrectly believed that she was due to work at Hereford Racecourse. She arrived late at the Grafter’s office in Cardiff, where she thought transport had been arranged to take her to Hereford. Instead, she was given a lift by CD, who then told her she was not required to work that day. AB requested to be taken home, but instead CD drove her to a golf course where the employment tribunal held that he subjected her to sexual harassment.

At the employment tribunal hearing, it was held that the harassment in question was not carried out in the course of employment and so Grafters was not liable.

EAT judgment

The EAT allowed the appeal against this finding.

The EAT judgment sets out an explanation of the complexities of this area of law. The starting point under the Equality Act is that an employer is liable for “anything done” by an employee in the course of their employment. Legal precedent shows that the words “in the course of employment” should be interpreted in the sense in which every layman would understand them (noting that this is not that helpful given that the average person is unlikely to spend a great deal of time considering such a concept). The determination of what is in the course of employment is essentially a question of fact for the Tribunal and so different decisions may be made in circumstances that appear similar. The EAT highlighted 3 similar cases with differing results:

1. A sexual assault, committed by a male police officer against a female colleague at a police section house where she had a room when both were off-duty was found not to have been done in the course of employment.
2. A male police officer who sexually harassed a female colleague at a pub where officers had gathered socially after the conclusion of their duties was acting in the course of employment.
3. Racial abuse by a white colleague at a family day out at a theme park was not done in the course of employment.

The EAT held that generally, the starting point should be to consider whether the alleged harasser was at work, in working hours and carrying out work activities. If this does not apply, the tribunal should then go on to consider whether there was “nevertheless a sufficient nexus or connection with work such as to render it in the course of employment” including, in this case, whether the provision of the lift was an “extension of work and the workplace”.

The EAT sent the case back for reconsideration by the Tribunal and gave some pointers for that hearing. It held that:

1. The Tribunal should analyse CD’s conduct in the hours immediately preceding the incident, namely CD sending the AB texts while CD “was working for the Respondent at a shift” and whether it formed part of a course of conduct with the sexual harassment when CD gave AB a lift.
2. The Tribunal should analyse the closeness of the connection between CD’s job for Grafters and why AB was in his car when the harassment occurred, including the fact that CD had previously driven AB to a job.
3. The Tribunal was entitled to conclude that AC’s belief that “she was at all times acting in the course of her employment” was not relevant to the question of whether the alleged harassment was done at work (whether CD was at work, carrying out work activities in working hours).
4. However, if CD took advantage of the fact that AB thought that she was due to work at Hereford and that he offered her a lift as part of his work duties, that was potentially relevant to the question of whether the provision of the lift had a sufficient nexus or connection with work such as to render it in the course of employment and/or that it constituted an extension of work and the workplace or working activities.

Comment

This case is yet another example of how difficult it is to predict whether something is done in the course of employment or not. It is a factual exercise into which many of the surrounding facts and circumstances can be relevant. The tribunal in this case is being asked to look into actions that took place before the alleged harassment. The EAT reminds us that tribunals and courts will give anti-discrimination legislation a broad interpretation where possible.