The appeal considered whether a recruitment agency was liable for the actions of an off-duty employee who physically and sexually harassed a colleague while giving her a lift when she mistakenly reported for work on her day off.
Originally an employment tribunal (ET) had concluded the company was not responsible for the actions of its employee as the out of hours harassment had not been done ‘in the course of their employment’.
But the Employment Appeal Tribunal (EAT) looked again at the meaning of what is done ‘in the course of their employment’ and concluded that it can capture harassment not done at the workplace, or in working hours if there is a sufficient connection with work, such as when the situation results in an “extension” of the workplace.
The appeal was brought by the victim – A – who worked for a hospitality recruitment agency and had genuinely but mistakenly believed she was scheduled by the firm to work a shift at a racecourse, the company having cancelled her shift without telling her.
Another employee – C – had sent A sexually harassing texts in the early hours of the morning that A thought she was due to work, and while C was still on shift for the company. In the morning, A arrived at the company’s office where she thought transport to the racecourse would be arranged for her. Although C was not at that time working a shift for the firm, he offered A a lift. Shortly after the journey began, C told A that he’d learned she was not scheduled to work that day. A asked to be taken to a bus stop but was instead taken by C to a golf course, where an employment tribunal found A had verbally and physically sexually harassed her.
Despite this, the tribunal had concluded the company was not liable for his actions as C was not acting “in the course of his employment”. This was because C was not working at that time of the day and his offering A transport was not arranged or sanctioned by the firm, nor did they have any knowledge of it.
Upholding the appeal, the EAT agreed with the victim that having concluded the harassment was done outside of work, the ET should have considered whether there was nevertheless a sufficient connection – including whether the provision of the lift was an extension of the workplace. As part of this the ET should have analysed C’s harassing conduct in the hours immediately preceding the incident while he was working for a shift for the company and whether it formed part of a course of conduct with the sexual harassment which occurred when C gave A a lift.
It also found the tribunal should also have analysed the closeness of the connection between C’s job and why A was in his car when the harassment occurred, including the fact that C had previously driven A to a job. A’s belief that she at work when the harassment occurred was also relevant if C took advantage of A’s belief that she was due to work and that C was offering her a lift as part of his work duties.
The EAT did not decide that C was acting in the “course of employment” but has asked the ET to revisit this question in light of its decision. A 13-point summary of how employer liability for harassment should be interpreted was also set out.
Kate Dodd, an employment expert at Pinsent Masons, said: “This decision adds understanding to whether alleged harassment outside of working hours is ‘in the course of employment’. It’s especially helpful to gain more insight into the relevance of an employee’s own perceptions around whether they are ‘at work’ at the time of harassment, as lines can often be blurred, especially in social contexts”.
“We are nearly a year into an enforceable duty on employers to take reasonable steps to prevent sexual harassment. Risk assessments and preventative steps should take factor in the possibility that harassment can take place outside of the workplace and working hours.”
Susannah Donaldson, an expert in equality law with Pinsent Masons, added: “The observation that harassment that starts at work may be an extension of harassment that continues outside of work is also an important takeaway from this decision”.
“When employers are investigating alleged harassment, they should keep in mind that it may be necessary to probe what has gone on both during working hours and after hours.”
The summary highlights that it is the alleged harasser who must be “acting in the course of employment” and this criterion may be met even if the alleged harassment is not done at the workplace, or in working hours.