An employer can be liable for actions committed by an employee in the course of his employment, even if the employee was acting improperly. A recent case helps clarify what is in the course of employment.
A female prison officer received an unexpected visit from a male colleague at her home one evening. During this visit, he made unwanted sexual advances to her. She reported this to both the police and her employers. The police investigated the matter for over three months before deciding not to prosecute because of lack of evidence. The employer waited for the police investigation to be concluded. Six weeks after its conclusion, it started its own disciplinary investigation.
She brought a claim of racial discrimination against the employers which was successful in the employment tribunal but overturned by the Employment Appeal Tribunal (EAT). EAT dismissed all four arguments put forward by the woman.
First, she argued that she had recently changed address and had only notified her employer, therefore her colleague could only have obtained the address through work. EAT decided that this may be so, but that did not make his subsequent action part of his employment.
Second, she argued that the employer’s disciplinary code allowed the employer to discipline an employee for conduct outside work. EAT decided that this did not mean that everything an employee did for all 24 hours a day became part of his employment.
Third, the effect of this harassment was that the employer re-arranged work patterns to minimise the chances of the colleagues meeting at work. Again EAT decided that this was a reasonable step to take in the circumstances, but did not make the harassment part of the employment.
Fourth, the employers had acted in a manner which suggested that they accepted responsibility. This included providing a counsellor, re-arranging work patterns, investigating the matter and disciplining the man. EAT decided that this was a proper response from a reasonable employer and could not be taken as an acceptance of liability.
EAT concluded that the harassment was not in the course of employment. The harassment could have just as easily happened between two people who knew each other socially.
On the question of the delay in dealing with the complaint, EAT found that it was the employer’s policy to await the outcome of any police investigation before starting an internal investigation. This does not make it a good policy (which it is not), but does mean that it is not sex discrimination. A man bringing a complaint against a colleague for a matter being investigated by the police would suffer a similar delay.
As regards the six-week delay from the end of the police investigation, the employer had failed to provide any justification for this further delay. In the absence of any good reason shown by the employer, the tribunal was entitled to conclude that this was due to sex discrimination. EAT could have sent this matter back to an employment tribunal for further consideration, but bearing in mind the history of this sad case, EAT decided to make its own decision that the employee had suffered sex discrimination for the six-week delay before the internal investigation, but not for the harassment.
HM Prison Service v Davis. EAT [2000]
[2000]