A woman has won a harassment claim against her employer having reported being raped by a manager after a Christmas party.
The employee, who was not named at the employment tribunal, attended a Christmas function hosted by the housebuilding company Crest Nicholson in November 2019. At the time of the party, she worked at the same location as the site manager who committed the offence.
The day of the party had been due to be a non-working day for the claimant, but there was “some level of expectation that staff would attend the event”, the tribunal heard. Staff who did not wish to attend but for whom it was a scheduled working day were expected to take it as annual leave, and some expenses were covered by the employer.
The employee had made arrangements to stay in a hotel in London with two female colleagues. The event began at 1:00pm and there was a free bar all day.
Accounts of the afternoon include a drinking game that began “prior to sitting down to eat”, descriptions of the site manager becoming “touchy-feely” with another colleague who subsequently filed a formal complaint, and witnesses reporting he had “groped [the colleague] on the buttocks” and pinned her against a pillar where he then groped her breasts.
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The tribunal heard that the site manager had approached the claimant after lunch, with the claimant telling a colleague that “whenever she turned around, the site manager seemed to be there”. Other colleagues noticed that the manager had “begun to pay attention to her”, and a photo showed the two sitting closely together that afternoon.
A second site manager intervened and told the manager to stop his inappropriate behaviour, but the tribunal heard he was then threatened with violence.
There were further accounts of both the claimant and the site manager being intoxicated later in the evening, including an incident where a colleague said she was pushed on the floor by the site manager while dancing, as well as (unfounded) accusations of drinks being spiked.
After the party, the claimant made her way to a hotel with the site manager because she did not perceive any risks to her personal safety, despite claims that he had assaulted another employee at the event.
It was at this point, according to the judgment, at which “the Respondent failed to fully discharge its responsibilities to protect her”, meaning the company effectively became liable for what subsequently happened.
The claimant did not have the capacity to consent to sexual activity and woke up in pain, to find the site manager assaulting her. She attended a sexual assault referral clinic a week later where it was noted she had bruises to her legs, inner thighs and bottom of her spine, as well as internal bruising.
She confided in a work colleague about the assault and two weeks later told her manager and the site manager was suspended in mid-December, then dismissed in January.
The claimant finished work early for the Christmas period and returned to work in January 2020, when she sought help via the company’s employee assistance programme. She had contacted the police about the assault but was informed, some 15 months later, that the Crown Prosecution Service did not have enough evidence to pursue a case against the site manager.
In the weeks and months that followed, the employee’s mental health deteriorated and was eventually certified as unfit to work due to depression by her doctor. In August 2020 she notified Acas of a potential claim against Crest Nicholson and resigned in October 2020.
The tribunal upheld claims of harassment based on the events at the Christmas party, falling under section 26 of the Equality Act – unwanted conduct of a sexual nature. A claim for constructive dismissal due to direct discrimination was dismissed.
Employment Judge Tynan referred to the company’s stated commitment to health and safety in the tribunal, saying: “Regrettably, for reasons we shall come to, these documented standards and expectations were not reflected in how the event on 28 November 2019 was organised or managed on the day.”
In the judgment, he said that “the Respondent is liable for the acts of the site manager … as they were done by the site manager in the course of his employment with the Respondent”, adding that the company “failed to put reasonable safeguards in place for staff at the Christmas party”.
A spokesperson for Crest Nicholson, a FTSE 250 company, said: “This judgment refers to unacceptable and unlawful behaviour which has no place in any personal or work environment. The health and welfare of our colleagues is our number one priority. As we are appealing this judgment it would be inappropriate for us to comment further at this time.”
Jim Moore, employee relations expert at Hamilton Nash, an HR consultancy, said the case was a “horrifying illustration” of why employers have a responsibility towards staff at work social events.
“The ‘cavalier attitude’ of the senior manager towards the inappropriate and drunken behaviour of a subordinate resulted in the rape of an employee, and led to the employer being held vicariously liable,” he said.
“Christmas parties and work social events are notorious within the HR industry for their potential for serious consequences. Not only is there a risk to staff, but the employer is vicariously liable for their workers’ actions. The fact it is a work-related social event connects it to the employment of the attendees, as the judge pointed out in this case.
“It may not be possible to prevent people from getting over-excited at a party, even if your leaders ban alcohol entirely. However, it needs to be drummed into senior members of the management team that they have a responsibility, as representatives of the employer, to intervene and address any errant behaviour before it escalates.”
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