2nd June 2022

Business or pleasure- when may an employer be liable for discrimination outside the workplace

“Partygate” was back in the headlines again last week following the publication of Sue Gray’s report. Leaving aside any political, ethical or moral considerations arising from this subject, one aspect of Boris Johnson’s explanation for the conduct at 10 Downing Street which caught my attention was his assertion that he believed he was attending a “work event”. The Prime Minister offered this background (as I understand it) to try and set out the events in Downing Street he attended were lawful in terms of the COVID lockdown rules as applied at the time.

The repeated mention of this phrase got me thinking about where employment law requires to take a view on whether incidents or events occurred at a “work event”. Ordinarily, what an employee does in their own time will not be the concern of the employer. However, there are a few different areas where the line is blurred. One example of this would be where an employee commits an act of misconduct away from the workplace and in their own time but, upon discovery, the employer believes that conduct or behaviour has a direct impact on the employee’s ability to properly, lawfully or safely carry out their job. An example of this would be where the employee commits an alleged offence which leads to a criminal prosecution and the employer is concerned as to whether the employee remains fit do their job. One case in this category saw an employee get dismissed from their position as an Accounts Assistant when it was discovered they had been charged with theft, the employer believing that continued employment where the employee had access to funds of the business created too much of a risk in light of their alleged criminal conduct.

Whether behaviour or conduct can be said to have occurred “in the course of employment” is a big consideration in a number of discrimination claims, particularly those where one employee alleges they have been subjected to harassment by a colleague and the employer ought to be held vicariously liable for that colleague’s actions. Section 109 of the Equality Act has the effect of meaning anything done by an employee “in the course of their employment” is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval. Employers need to be mindful of this concept as it often means they will attract legal liability for events which occur outside the workplace and outside of normal working hours.

A manager making employment-related decisions (for example, in deciding whether to promote or dismiss an employee) will, in practice, always be acting in the course of employment. Furthermore, harassment of an employee by a colleague in the workplace will almost certainly be covered. However, the dividing-line becomes blurred with conduct off the premises and out of normal working hours, particularly at social gatherings. Some of the factors to be taken into account will include:

  • Whether the incident took place on the employer’s premises.
  • Whether the victim and/or discriminator were on duty.
  • Whether the gathering included employees’ partners, customers or unrelated third parties.
  • Whether the event took place immediately after work.

An example of where this issue has been considered by the tribunals and a finding reached the employer was vicariously liable was the case of Chief Constable of Lincolnshire Police v Stubbs [1997] 12 WLUK 263 where two incidents of sexual harassment that occurred at social gatherings involving officers, either immediately after work or for an organised leaving party, took place in the course of the officers’ employment, meaning the Chief Constable was vicariously liable for those incidents.

However, the mere fact that one employee is harassed by another will not always lead to a finding of vicarious liability. In HM Prison Service & Others v Miss S Davis EAT/1294/98, the Employment Appeal Tribunal found that where Ms Davis was subjected to alleged sexual harassment by a colleague when he attended at her home uninvited and outside of working hours on what was termed a purely “social” visit, this could not be said to have been done “in the course of employment”, meaning the employer was not liable.

Social media and online abuse is a forum for ever increasing abusive and harassing behaviour between work colleagues. In Forbes v LHR Airport Ltd UKEAT/0174/18, the Employment Appeal Tribunal held that the posting of a racially offensive image on an employee’s personal Facebook page was not done in the course of employment, even though the image was seen by a colleague and discussed in the workplace. The employee who had posted the image did so in her own time, and did not mention any colleagues or the employer in the post.

It is interesting to contrast the position of one group (Mr Johnson and his colleagues) arguing they were at work so therefore had not breached laws, with the other (the employers in the case examples given above) who have argued their employees were not at work so as to avoid legal liability. The law is complex and often creates difficult concepts. That is why employers do need to be careful to ensure any complaints of discrimination or (particularly) harassment relating to events away from the day to day of the workplace are fully investigated. Doing so “in the course of employment” may allow employers to avoid becoming involved in damaging litigation at a later stage as a result of their unwillingness or inability to recognise where they may be vicariously liable.

If you have any employment law questions or need advice, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Stephen Connolly, Partner
Employment Law
Blackadders LLP
@EmpLawStephen

www.blackadders.co.uk

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