A Cambridge Employment Tribunal has held that acts of sexual assault were done by an employee in the course of his employment following a Christmas Party held for employees of Crest Nicholson, a house building company who had arranged for employees to attend a London venue in November 2019.
Prior to assaulting the Claimant, a site manager, was seen repeatedly groping a female colleague which resulted in another male colleague intervening. Later that night, the same site manager accompanied the Claimant in a taxi and raped her in her hotel room. The tribunal commented that the site managers behaviour during the party “cried out for decisive action”. Also commenting that “an employer has a responsibility to act pro-actively, rather than reactively, to identify and safeguard against risks to the health, wellbeing and safety of its staff”.
The Claimant brought claims against her employer for Harassment, however the Respondent argued that they could not be held responsible for the events as the incident did not take place in the workplace.
The event started at 1pm and carried on into the late evening and the employer had operated a free bar all day for staff in attendance. Whilst the event was not mandatory, it was held on a working day and any employee who decided not to attend would be required to take a day’s annual leave. The Respondent also arranged for employees to claim £50 in respect of travel and accommodation expenses incurred.
What is Harassment?
Section 26 of the Equality Act 2010 provides that Harassment is:
- Unwanted conduct related to a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).
- Which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
- Unwanted conduct of a sexual nature which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Section 109 of the Equality Act 2010 provides that “anything done by a person (A) in the course of A’s employment must be treated as also done by the employer”.
The key legal issue in this case was whether the site managers conduct towards the Claimant was done in the course of his employment therefore making the Respondent liable for his actions.
The Respondent argued that because the incident(s) took place outside of the workplace and normal working hours they could not be held liable. The Tribunal however disagreed and looked at the circumstances as a whole including that the Respondent had contributed to the expenses of employees attending the event and the general expectation that staff would attend inferred from the requirement to otherwise take annual leave.
The Tribunal considered that the site manager’s actions occurred in what could be deemed as an ‘extension of the workplace’; the Respondent had paid a significant portion of the Claimant’s hotel room shared with colleague and the ability to claim expenses in itself ‘would have facilitated their attendance at the party’.
In respect of working hours, the Tribunal found that the course of conduct likely began during normal working hours and that irrespective of this, ‘an ordinary layman would have regard to the fact that 28 November 2019 was an ordinary working day for the site manager and that he was paid his normal salary that day’.
The Tribunal found in favour of the Claimant and used its discretion to extend the time limits for the claims which were brought out of time on the basis that the Claimant was traumatised by the events and became significantly unwell. It was held that the Claimant advanced her claim as soon as she was emotionally capable of doing so.
See our article ‘Resurrection of the Christmas party’ here for our list of Do’s and Don’ts for your business.
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