Transcription

• Speaker #0

  Today, in the Lefevre HR and Employment Law podcast, we're discussing the judgment in the case of AB and Grafters Group Limited, trading as CSI Catering Services International, in which the Employment Appeal Tribunal was asked to decide whether an employer was liable for the discriminatory actions of an employee who gave an unscheduled lift to another employee. Employers can find themselves liable for an employee's discriminatory actions, where those actions can be said to have taken place in the course of their employment. What is meant by in the course of their employment can be the subject of much debate, and one which the Employment Appeal Tribunal had to consider in this case. B, who worked for a catering company, mistakenly believed that she was booked to work at Hereford Racecourse and attended at the catering company's offices, expecting to get transport to the racecourse. However, She was late arriving and those working at the racecourse had already left. Dee, another employee, offered to take Bea in his car and then, having spoken to a manager, told her that she was not actually needed for work that day. Bea asked Dee to drive her home and while he agreed, he instead drove her to a golf course and subjected her to acts of sexual harassment. Bea reported Dee to the police immediately after escaping from his car, but no criminal charges followed. nor did the employer investigate the incident or offer support to B, who later brought tribunal proceedings. The tribunal found that D had sexually harassed B, but accepted the employer's assertion that D had not been acting in the course of his employment, and therefore B's claims failed. In reaching its conclusion, the tribunal found that neither B nor D were scheduled to work at Hereford Racecourse that day. There was no arrangement for D to take B, or anybody else to the racecourse, and had B arrived on time for the scheduled transport. She would have been advised that she was not required to work. Despite B's claims to the contrary, there was no requirement for colleagues to provide informal lifts for one another, and therefore, whatever D's motives were in offering B the lift that day, they were not linked to his employment. And this particular lift was neither approved nor sanctioned by the employer. B appealed to the Employment Appeal Tribunal. The Employment Appeal Tribunal upheld the appeal, applying Chief Constable of Lincolnshire Constabulary and Stubs and noting that whether something is done in the course of employment or not is a question of fact for the tribunal, which should be determined by having regard to all relevant circumstances. One relevant factor may be whether the Act was done in or out of work, and if the Act takes place out of work, the tribunal must then consider whether or not there is a sufficient connection with work, so as to mean that the Act nevertheless took place within the course of the offending party's employment. It found that the tribunal had neglected to address its mind to the second question. In particular, it had failed to analyse evidence given by B that the evening before the incidents in the car had taken place and while at work, D had sent her inappropriate messages which she said formed part of a course of conduct which culminated with the more serious incidents the following day. It had also failed to properly consider the closeness of the connection between D's employment and the reason why B was in D's car the day the harassment occurred and the fact that D had previously driven B to a job. It noted that while the tribunal was entitled to conclude that B's belief that she was at all times acting in the course of her employment was not relevant, it was potentially relevant that D had taken advantage of the fact that B thought, albeit mistakenly, that she was due to work at the race course and that D was offering her the lift as part of his work duties. The case was sent back to the same tribunal to be reconsidered on this basis. Look out for further episodes in this series to stay up to date on all things HR and employment law related.