Sexual harassment: revisiting employer’s duties

The first anniversary of the introduction of the duty on employers to take reasonable steps to prevent sexual harassment in their workplace is fast approaching.  Prudent employers will be au fait with the new duty to take ‘all reasonable steps to prevent sexual harassment of employees’. As a minimum, this means conducting a thorough workplace risk assessment, implementing a policy and addressing any risks to ensure that employees are properly protected.

But what exactly counts as ‘the workplace’?   A recent case confirms that this duty extends further than might initially be assumed. As a result, employers may need to turn to their current practices to ensure that adequate safeguards are in place.  We explore this further in this article.

‘In the course of employment’

If we look to the law for a definition, it is explained that employers must take reasonable steps to prevent sexual harassment “in the course of employment.” Accordingly, this necessitates that reasonable steps be undertaken in circumstances to which this wording applies. Failure to do so can result in employers being held jointly and severally liable for harassment suffered by their employees. In turn, this also means that individual employees may also be found liable alongside their employer.

AB v Grafters Group Ltd (t/a CSI Catering Services International)

The Claimant alleged that she was subjected to sexual harassment by a colleague outside what may be considered the typical ‘workplace’.

Briefly, the Claimant mistakenly believed that she was due to work at one of her employer’s assignments in Hereford that day. Consequently, the Claimant arrived at her employer’s office in Cardiff, albeit later than planned, expecting transport to have been arranged for those working that day. When no transport was available, her colleague, ‘CD’, who worked for the same employer, offered her a lift.

It is important to note that, before this, CD had messaged the Claimant a series of sexually harassing texts whilst he was working for their employer and whilst he believed that the Claimant was due to work the next morning.

During their journey, it was made apparent that the Claimant would not be required to attend work this day. The Claimant, therefore, requested that she be taken to a bus stop so that she could return home.

CD did not do this but, instead, drove the Claimant to a golf course.

It was here that the Employment Tribunal found that the Claimant had been subjected to sexual harassment by CD.

What the Employment Tribunal did not find was that this occurred within the ‘course of employment’.

The appeal

Consequently, the Claimant appealed to the Employment Appeal Tribunal (EAT) and this appeal was allowed.

In considering the Claimant’s case, the EAT held that, in deciding whether the harassment occurred “in the course of employment,” the Employment Tribunal failed to apply the full test, specifically the second limb, namely to:

1. First consider whether the alleged harasser was at work, in working hours carrying out work activities.
2. Then, if not, consider whether there was “nevertheless a sufficient nexus or connection with work such as to render it in the course of employment”?

The EAT considered that the Employment Tribunal had failed to consider that CD had taken advantage of the fact that the Claimant thought she was to work in Hereford that day. This, the EAT considered, was relevant to determining whether there was a sufficient nexus or connection with work such as to fall within the ‘course of employment’ or, in the alternate, an extension of working activities.

In addition to this, the EAT also highlighted that the Employment Tribunal had wrongly considered whether CD’s motive was ‘because of requirement linked to his employment’. The EAT subsequently emphasised that this is not a necessary factor, again expanding the number of possible connected scenarios to a greater degree. Indeed, the EAT explained that the ‘fact that a person’s motivation is having an opportunity to harass does not mean that the person is not in the course of employment’.

Implications for employers

In light of this case and the importance of the two-limb test, employers must carefully assess all circumstances where an employee’s behaviour could be linked to their employment.  Employers should then ensure that their sexual harassment policy and training informs employees of the reach of the law. Failing to do so may mean they fall short of their duty to take reasonable steps to prevent sexual harassment, leaving the door open to misconduct and potential claims.

If you have any questions about the reasonable steps that you, as an employer should take, or any other employment law issue, please do contact a member of our Employment team.

A link to the full judgment can be located here.