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Background: Sexual harassment is defined in s26 of the Equality Act 2010 (EqA). It occurs where someone engages in unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating another’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
If that act is carried out by an employee or worker ‘in the course of their employment’ it is treated as also done by their employer (s109(1) of the EqA).
Facts: The employee, AB, was employed by Grafters Group Ltd, a hospitality recruitment agency. She believed she was due to work at Hereford Racecourse on a particular date but missed the arranged transport. She instead accepted a lift from her colleague, CD. During that journey, CD sexually assaulted her (inappropriate touching and sexual comments).
AB brought a claim for sexual harassment against the employer on the basis it was liable for the acts of CD.
Tribunal decision
The Tribunal accepted that AB had been harassed. However, it found the employer was not liable because CD was not acting ‘in the course of his employment’. CD was not booked to work at Hereford, the employer had already arranged alternative transport, and there was no expectation that CD would drive AB. The employer also had no knowledge of the lift. On that basis, AB’s harassment claim against her employer was dismissed.
AB appealed.
EAT decision
The EAT said the Tribunal’s analysis had been inadequate. It had not properly considered whether there was a sufficient connection between the harassment and the working relationship; including whether the colleague’s behaviour was an extension of the workplace.
In particular, the Tribunal should have examined CD’s actions in the hours leading up to the incident, when he had sent AB sexual messages while on shift. That conduct may have formed part of a continuing course of behaviour that ultimately culminated in the assault, and should therefore have been taken into account.
The Tribunal also should have considered why AB was in CD’s car at all; including the fact that he had previously driven her to jobs for the employer.
The EAT remitted the case to the same Tribunal to reconsider liability using the correct legal test.
Implications:
This decision highlights the broad meaning of ‘in the course of employment’ and that it must be understood in its ordinary, everyday sense, not in any narrower technical sense.
The key is whether the act of harassment is sufficiently connected to work or an extension of their employment. The closeness of that connection is what is to be examined, not the accused harasser’s motives in doing what they did. The EqA makes it clear that liability of an employer for an employee’s actions does not depend on whether the employer knew of or sanctioned the act and even interactions not arranged or known about by the employer may still fall within the scope of employment.
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