A complete liability?

To what extent are employers responsible for offensive behaviour displayed
towards their employees?  A lot further
than you might think, suggests Pauline Matthews

Scenario 1

Mary works as an administrative officer for a large government department.
Cliff is her manager. He often brings in his morning paper and reads out
salacious items from it to her. She does not like this but she has never
complained about it. She feels he stands too close to her when checking her

When travelling to an appointment together he tells her she has terrific
legs and he would like to see where they go. Mary complains to the HR
department of sexual harassment.

Pauline Matthews comments: 
The first thing the employer has to establish is that this behaviour is
sexual harassment. Mary has not complained about the early incidents and it is
possible that a tribunal would not find they were sexual harassment without a

However, clearly the remarks in the car on the way to the appointment (if
proved) would be sexual harassment. Is the employer liable? It has to be
established that Cliff was acting "in the course of employment".

This is now a broad concept, and it can no longer be argued that as long as
an employer does not authorise acts of sexual harassment they cannot be
regarded as "in the course of employment".

Following a case called Jones v Tower Boot Co, CA 1997, it is now
established that the employer is liable for acts occurring at work whether it
is something the employee was supposed to be doing, such as travelling to an
appointment, or something unauthorised, such as physical assault – it does not
matter that the employer knows nothing about it. In this case, therefore, the
employer is liable for the harassment in the car.

However the employer could claim a defence under section 41(3) of the Sex
Discrimination Act (section 32(3) of the Race Relations Act 1975 in the case of
racial harassment).

This provides an employer will not be liable where he can prove it
"took such steps as were reasonably practicable to prevent the employee
from doing that act, or from doing in the course of his employment acts of that

This defence is not argued as often as it might be. However, employers who
have comprehensive policies and have undertaken training have a reasonable
chance of avoiding liability on these grounds.

One caveat: in the case Caniffe v East Riding of Yorkshire Council EAT 2000
the employers had disciplinary, grievance and personal harassment policies.

The tribunal could not see what further the employer could have done to stop
the harassment. On appeal the EAT declared this was wrong – there may have been
other steps that could have been taken after Mrs Caniffe told her supervisor of
the harassment, such as speaking to the harasser and keeping a closer eye on him.

Scenario 2

Estelle is a magician’s assistant. The magician, Ivor Wand, plies his trade
at children’s parties. Mr and Mrs Yelland engage Mr Wand at the eighth birthday
party of their son Stuart.

At the party one of the male parents comments on the skimpiness of Estelle’s
costume and the attractiveness of her cleavage.

Estelle tells Ivor she wants to go home, as she feels further such incidents
are likely. But Ivor insists she continue, saying he cannot not do the
sawing-in-half trick without her. Later on the same parent corners Estelle and
makes further suggestive remarks.

Pauline Matthews comments: 
The treatment of Estelle by the parent is sexual harassment, but can her
employer be held responsible for his actions? After all, it is not an employee
who has harassed Estelle, but a "third party". Following two cases
the employer may well be liable.

In Burton and Rhule v De Vere, EAT 1996, IRLR S96 and Go Kidz Go v
Bourdouane, the courts have taken the view that once the employer knows there
is a threat or risk of sexual or racial harassment and it occurs in a situation
where the employer has sufficient control of the working environment to reduce
or eliminate the risk of that harassment, the employer will be liable if he
does not take action.

In this case Mr Wand could have let Estelle go home or asked the hosts to
make the guest leave.

Scenario 3

Joe is a teacher at a local secondary school. He is of Afro-Caribbean origin
and has been racially abused by pupils at school on several occasions. He has
complained to the head teacher, who has investigated the matter and determined
that two particular pupils were involved.

The head has said he has to call a meeting of governors before he can take
any further action, but he has failed to do this because of pressure of work,
and Joe’s position has become intolerable. He resigns.

Pauline Matthews comments: 
Joe has been subjected to racial harassment, but not by other employees.
In effect the pupils are similar to the "third parties" in Burton and

A tribunal would ask: was the situation sufficiently under the control of
the employer that the harassment could have been prevented or reduced?

This has been confirmed in two cases concerning teachers – Pearce v The
Governing Body of Mayfield Secondary School (EAT 2000) and Bennett v Essex
County Council (EAT 1999).

In Joe’s case, although the school was not directly responsible for the
pupils’ actions, it could have made moves to prevent or minimise the risk of
further harassment. The school clearly recognised this by referring to a
meeting of the governors.

Once liability has been established the court will look at what reasonable
steps were or could have been taken.

Scenario 4

Talia is a sales manager for a major record company. She is due to attend a
national sales conference starting on Saturday. On the Friday night she goes
out for a drink with colleagues after work.

Her boss is there; he gets tipsy and makes sexual advances. Talia is very
upset and leaves abruptly because of this. Later on he calls on her at home and
attempts to kiss her, but she asks him to leave.

On Saturday she attends the conference. In the evening there is a social
event. Her boss is there; he corners her in a rest room and physically assaults

Pauline Matthews comments:  The
employer is liable for the employees’ acts as long as they are in the course of
employment. It is not clear here whether all these events come within the
definition of "the course of employment".

One event occurred during a drink after work, one after work in the
employee’s home and the third at a work-related social event. In the case of
Chief Constable of Lincolnshire v Stubbs, the EAT upheld a tribunal decision
that sexual harassment taking place after work during a social drink and at a
leaving party when all the parties were off duty was in the course of
employment. It might be thought that police officers are a special case because
of the requirement of good conduct on and off duty.

In Davies v The Prison Service, EAT 2000, the courts took a different view.
Here a prison officer visited a fellow officer at home and made sexual advances
towards her. The court found the employer was not liable as the harassment had
taken place outside work. The Court of Appeal also found no employer liability
when a police officer was allegedly assaulted in police accommodation by
another police officer while they were off duty (Waters v The Commissioner of
Police for the Metropolis, CA 1997). It is arguable in Talia’s case that the
employer is not liable for what goes on during after-work drinks and at her

However, Talia was required to take part in the conference social event, and
it is highly likely this would be regarded as in the course of employment.

Scenario 5

Jamila is of Asian origin. She has been sent by a temping agency to work as
a secretary to John, a senior partner at an architectural firm. On her first
day John makes suggestive comments to her which she ignores.

On the second day a client, Max, says to John in her hearing that she is not
good for the image of the firm, referring to her race. John does nothing at all
about this and continues to make suggestive remarks to Jamila.

Pauline Matthews comments: 
The practice is liable for John’s acts towards Jamila as contract
workers are covered by the Sex & Race Discrimination Acts. The situation
with Max is more difficult. The firm is on notice that Max might racially abuse
Jamila and therefore following Burton v Rhule (above) should take action to prevent
it if it can.

It could have a word with Max, or, if he is unco-operative, risk losing him
as a client. Many firms might choose to get rid of Jamila rather than tackle a
client about his attitude.

Jamila would have a direct discrimination claim if it did this.

Pauline Matthews is an employment associate at law firm DLA in Manchester

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