Many of you may be familiar with the term, vicarious liability, which arises in the context of employment law and results in an employer being held liable for acts of its employees. However, the doctrine is not without limit. An employer will only be liable where the conduct arises in the ‘course of employment’.
Case law has provided helpful guidance in this area and last week saw another case which employers would be well advised to take on board.
The Claimant was a hospitality worker booked to work on a local racecourse. She missed arranged transport and accepted a lift from a male colleague who sexually harassed her whilst in the car.
The Employment Tribunal accepted the harassment occurred but found the colleague did not harass in the course of employment such that the employer could not be held liable, noting that there was no requirement or expectation that he drove the Claimant nor that the employer knew about the lift nor approved it. However, the Employment Appeal Tribunal [EAT] disagreed and found the Employment Tribunal had erred when failing to consider if the incident was an extension of employment.
The EAT criticised the Tribunal for failing to adequately consider whether there was sufficient nexus for the sexual harassment to have occurred in circumstances that constituted an “extension of their employment.” Specifically, the EAT findings of fact regarding the sending of sexually harassing texts to the Claimant while he was working and his previous act of driving the Claimant to work.
Furthermore, the EAT deemed the “motive” in offering the lift to be an irrelevant factor. The EAT emphasised that an individual’s motivation to harass does not preclude their actions from being in the course of employment, which would otherwise “excessively water down” anti-discrimination protections.
While the employer’s knowledge or approval of the sexual harassment itself is irrelevant the employer’s knowledge or approval of the broader event (such as an organised social gathering) could be relevant to whether the alleged harasser was acting in the course of employment.
The EAT acknowledged that the Claimant’s belief about being at work was not directly applicable but recognised that if the harasser sought to exploit or capitalise on this belief that she was going to work and that his lift was a work-related duty, this would be potentially relevant to establishing a sufficient connection to work or an “extension of work”.
Further helpful guidance can also be found in the case of Chief Constable of Lincolnshire Police v Stubbs [1999] where it was found to be fair and just to hold an employer accountable for harassment that took place between two off duty officers during a social event that occurred outside of work hours but which was attended almost exclusively by employees of the employer, at a premises closed for their exclusive use and to which the employer had made a financial contribution.
Contrast to the case of Waters v Commissions of Police for Metropolis [1997] whereby an alleged assault of a female officer by male office whilst off duty was found to occur outside of employment such that the employer was not vicariously liable.
