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Employer liability for acts of harassment: what HR need to know
Adrian Fryer
Acts of harassment are generally committed by individuals, not corporate entities. How is it, then, that businesses can be liable for the harassing acts of their employees? The answer lies in the concept of ‘vicarious liability’. Through the concept of vicarious liability, businesses are held liable for any acts of harassment by employees committed ‘in the course of employment’.
In order to effectively risk assess, provide appropriate training, and understand the circumstances where the employer is able to lean on employees to behave in a certain way, it’s important for HR to understand exactly what is meant by ‘in the course of employment’. How far does this concept extend? This issue was considered recently by the Employment Appeal Tribunal in the case of AB v Grafters Ltd. In this case, an agency worker had turned up at the business’s offices and was told that she was not rostered to work. A colleague offered to give her a lift home. The colleague then sexually harassed the worker in the car. The Employment Appeal Tribunal did not agree with the employment tribunal’s conclusion that the harassment had not been ‘in the course of employment’ and sent this point back to be reconsidered. In doing so, the EAT gave the following helpful guidance:
- The words should be given a broad interpretation.
- An act of harassment may be done in the course of employment even if it was not done at the workplace, or in working hours, if there is a sufficient ‘nexus or connection with work’, such as when the situation is an ‘extension of work and the workplace’.
- Whether the act of harassment is done with the employer’s knowledge or approval ‘does not matter’.
HR need to make sure that anti-harassment policies and training encompass any interactions between employees which have a ‘connection with work’. It has long been accepted that work-related social occasions and social media messaging are caught by the extended concept of ‘in the course of employment’. This case indicates that it may go wider still, encompassing situations where the workplace has provided the harasser with a springboard to harass, even though the harassment itself took place outside of work.