If an employee is sexually harassed by a colleague whilst being given a lift to work, is the employer liable?

That was the question posed in the recent case of AB v Grafters Group Ltd when the Employment Appeal Tribunal had to consider whether or not the person who carried out the assault was acting in “in the course of his employment.”

AB, a hospitality worker, missed the transport arranged and therefore accepted a lift from a colleague, CD. CD was not working at the time but had been working earlier. AB thought that she was scheduled to work that day, but this turned out to be incorrect. When AB discovered she was not scheduled to work, she asked CD to drop her at a bus stop. CD refused and took her to a golf course and sexually harassed her. The act of the harassment was not in dispute, but the question to be decided was whether or not their employer could be held liable for it.

There have been many cases over the years where Employment Tribunals have had to decide whether something occurred ‘in the course of employment’, sometimes with differing results. The law states that anything done by an employee “in the course of their employment” is treated as having also been done by the employer, but each case must be considered on its own facts, and there needs to be an examination of whether what happened was sufficiently connected with work to render the employer liable. Relevant factors to consider include whether the incident happened on work premises, whether it was during working hours or immediately after work, whether either the victim or harasser were on duty, and whether the event included partners, customers or unrelated third parties. Where something happens at work it is usually more clear-cut, but when it occurs outside of work and outside working hours, the Employment Tribunal needs to consider whether there is a sufficient connection with work.

The Employment Tribunal concluded that CD’s actions were not done in the course of employment, and AB appealed the decision to the Employment Appeal Tribunal (EAT).

The EAT said that even though the incident did not happen at work, the Tribunal should have analysed whether there was a sufficient connection with work. The EAT said that CD’s conduct in the hours immediately preceding the incident was relevant (he had sent AB sexual text messages while he was working) and the Tribunal should have considered whether this formed part of a course of conduct alongside the sexual harassment when he gave AB a lift. The Employment Tribunal should also have analysed the connection between CD’s job and why AB was in his car, including the fact that he had previously driven her to a job for work purposes.

The EAT felt it was highly relevant that CD took advantage of the fact AB thought she was due to work and that he was offering her a lift as part of his work duties. They felt that the Tribunal had placed too much reliance on the fact that CD was not working that day. The case was sent back to the Employment Tribunal for consideration and the final decision is yet to be published. Our Employment Team have our own predictions on what will happen but it is for the Employment Tribunal to decide. We will update you on their decision in due course.

Employers can defend claims if they can show they took all reasonable steps to prevent harassment happening, including having robust policies in place. However, policies alone are not enough, and any policy should be alongside regular training on equality and discrimination, and it is a good idea for employers to carry out risk assessments to identify risks and find measures to mitigate them where possible. Importantly, employers must also be seen to be taking appropriate action if something does happen, as well as encouraging reporting of incidents and setting examples of acceptable conduct.

Our Employment Team at Mayo Wynne Baxter can advise on cases of potential harassment, but we can also provide policies and equal opportunities training to support those policies. If you would like to discuss this, or any employment matters with us, please contact any member of our employment team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.