Tribunal erred in deciding sexual harassment occurring during a lift home was not ‘in the course of employment’

Nikki Hampson
Solicitor
View Profile

The Employment Appeal Tribunal (EAT) has decided that an Employment Tribunal (ET) erred in finding that sexual harassment that occurred while a worker was being given a lift by a colleague was not in the course of employment.

The employee (AB) was an agency worker with a hospitality company. She worked in temporary hospitality roles across the UK. The employee attended the Company’s premises one morning as she incorrectly believed she was due to complete a shift. She believed that transport had been arranged for her from the office, and that she had missed the uplift. A colleague (CD) offered to take her to her shift, and she got in his car. CD subsequently told AB that she was not, in fact, due to work that day. AB asked CD to drop her at a bus stop, which he refused to do. AB claimed that CD then sexually harassed her. Upon hearing the evidence, the Employment Tribunal (ET) decided that CD’s conduct amounted to sexual harassment.

When is an employee acting “in the course of employment”?

The claim was brought against the hospitality company, so the ET had to determine whether CD was acting in the course of his employment. The ET held in its decision that he was not. The ET was influenced in that finding by the fact AB was not due to work that day and that the offer of a lift was “informal”, or at least not arranged or sanctioned by the employer.

The ET therefore dismissed AB’s claim for sexual harassment against the company. It held that, whilst AB had been sexually harassed by CD, CD’s actions were not done “in the course of his employment.”

AB appealed to the EAT. The EAT decided that the ET erred in law in considering whether sexual harassment occurred ‘in the course of employment’. It noted that the ET failed to refer to important material factors, despite having made findings of fact about them. Specifically, the EAT noted that the ET had failed to analyse:

• CD’s (sexually harassing) conduct in the hours immediately preceding the incident.
• The closeness of the connection between CD’s job for the Company and why AB was in the car when the harassment occurred, including the fact that CD had previously driven AB to a job.

The EAT upheld AB’s appeal on all grounds and has remitted the claim to the same ET for further consideration.

When is an employer vicariously liable for the actions of its employee?

The case is an important reminder to employers that “the workplace”, and liability (potentially for both the individual harasser and their employer) for sexual harassment which takes place “in the workplace” or “in the course of employment” often extends beyond the four walls of an employer’s premises, giving rise to vicarious liability for the employer, for the conduct of their employees, at other premises, and even outside of working time, depending on the circumstances.

Compensation uplift for failure to take reasonable steps to prevent sexual harassment in the workplace.

It is also worth noting that as a result of a new law introduced last year, where an employer is found liable for sexual harassment in the workplace, they can now face an uplift of up to 25% in compensation awarded by the ET where they have failed to take reasonable steps to prevent sexual harassment in the workplace.

If you have any questions about how this decision may impact your organisation, if we can provide support or assistance on any other employment law matter, or if you would like further details of the training we can deliver to you and your staff regarding an employer’s duty to take reasonable steps to prevent sexual harassment, please do not hesitate to contact a member of the team on 0141 331 5150.

Topics: Employment Appeal Tribunal, Sexual harassment