As the Christmas party season approaches, many employers are busy planning celebrations, team gatherings, and end-of-year events. While these occasions are a great opportunity to build morale, they can also create situations where professional boundaries blur and where employers might find themselves liable for what happens outside of work.
A recent case, AB v Grafters Group, offers a timely reminder of how widely the phrase “in the course of employment” can be interpreted under the Equality Act 2010, and what this means for employers heading into the festive period.
Background
In November 2021, AB, who worked for a hospitality recruitment agency, believed she was scheduled to work. After arriving late and missing the scheduled staff transport, she accepted a lift from a male colleague.
During the journey, the colleague informed AB that her shift had been cancelled. When AB asked to be taken home, he instead drove her to a golf course, where he sexually harassed her.
AB brought a claim of sexual harassment to the Employment Tribunal against her employer.
Tribunal and Appeal Decisions
The Employment Tribunal found that while AB had been sexually harassed, the employer was not vicariously liable because the conduct did not occur “in the course of employment”.
As a result, the claim against the employer was dismissed.
However, on appeal, the Employment Appeal Tribunal (EAT) disagreed with this approach. Referring to earlier cases, the EAT confirmed that conduct outside of the workplace can still be regarded as work-related if there is a sufficient connection between the act and the individual’s employment.
The EAT found that the original Tribunal had not properly considered key facts, including:
- The colleague had previously given AB work-related lifts;
- He sent her sexual messages while on shift shortly before the incident; and
- AB believed the lift was connected to her work assignment.
These factors could indicate that the harassment formed part of a course of conduct connected to employment or an extension of the workplace. The case was therefore sent back to the Tribunal for reconsideration.
Key Takeaways for Employers
The case highlights that the boundaries of employment are not confined to the office or regular working hours. For employers, especially during the festive period, the lessons are clear:
1. Misconduct can still be “work-related” outside of work.
If an employee uses their position, work relationship, or a work-related event to engage in inappropriate behaviour, the employer may still be held responsible.
2. Context matters.
Previous interactions, the nature of workplace relationships, and how events are organised can all affect whether behaviour is deemed to have occurred “in the course of employment.”
3. Be proactive with policies and communication.
Remind employees that the organisation’s dignity at work, anti-harassment, and social conduct policies apply at work-related events, including Christmas parties, travel, and after-work functions.
4. Train and brief managers.
Managers play a crucial role in setting the tone. Ahead of social events, remind them to lead by example and act promptly if issues arise.
5. Support and respond appropriately.
If a concern or complaint is raised following a social event, handle it sensitively, investigate promptly, and ensure support is in place for anyone affected.
For further assistance, employer can contact the Employment Team at Morgan LaRoche on [email protected].
