The Employment Appeal Tribunal (EAT) has upheld a woman’s appeal against a decision that a colleague who had subjected her to sexual harassment had not been acting in the course of his employment for the purposes of Section 109 of the Equality Act 2010. Having found that the incident had taken place outside work, the Employment Tribunal (ET) should have gone on to consider whether there was nevertheless a sufficient connection with work to render it in the course of employment.
The woman and her colleague worked for a hospitality recruitment agency. On the day in question, she believed that she was due to work at a racecourse, unaware that her shift had been cancelled. She arrived at the agency’s office late and missed the transport to the racecourse. Instead, she was given a lift by the colleague, who then told her that she was not required to work that day. While she was in his car, he subjected her to sexual harassment.
The ET found that he had not been acting in the course of his employment. He was not due to work at the racecourse and the agency had not required him to drive the woman there. He had offered to drive her after she had missed the transport: this was not arranged or sanctioned by the agency, which had no knowledge of it, and it was not required because she was not due to work.
The woman appealed, arguing that the ET had erred in law in failing to have regard to whether the incident was an extension of employment. The ET had failed to have regard to relevant considerations, such the colleague’s sending her messages of a sexual nature while he was working earlier on the morning in question, and had had regard to irrelevant considerations such as his motive in offering her a lift.
The EAT concluded that, having found that the incident had occurred outside work, the ET had not gone on to analyse the question of whether there was nevertheless a sufficient nexus or connection with work such as to render it in the course of employment, including whether the provision of the lift was an extension of work or the workplace. This was why the ET had not referred to important factors that were relevant to that question despite having made findings of fact about them. It was necessary for the ET to analyse the colleague’s conduct in the hours immediately preceding the incident, namely trying to contact the woman while he was working, and whether it formed part of a course of conduct with the sexual harassment.
The EAT did not consider that there could be only one answer to the question of whether providing the lift had a sufficient connection with work to render it in the course of employment. The ET had made careful findings of fact and had directed itself to the relevant law: its error was not to go on to answer the required next question. In the EAT’s view, it would save time and cost to remit the case to the same ET.
