Meaning of "Course of Employment" Under Discrimination Law and Common Law
The doctrine of the "course of employment" is a principal one in employment law. It is the situation for an employer's vicarious liability under the discrimination statutes, and at common law( law as defined by courts in their decisions).
Vicarious liability is the obligation which falls on one person as a result of an action of another. Within employment law it would be the liability of an employer for the acts and omissions of his employees.
Current cases reported show that the words, "course of employment", must now be regarded as having a different meaning, depending on the nature of the case.
In Chief Constable of the Lincolnshire Police -v- Stubbs [1999] IRLR 81, a male officer subjected a female colleague to several incidents of inappropriate sexual behaviour at social gatherings immediately after work.
Was the male officer acting in the course of his employment when he committed acts of unlawful sex discrimination, and were his employers vicariously liable for his actions under section 41(1) of the Sex Discrimination Act?
Section 41(1) says: "Any thing done by a person in the course of his employment shall be treated as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval".
The Employment Appeals Tribunal(EAT) concurred with the tribunal findings, that these acts were committed in the course of his employment, and the incidents, although 'social events' away from the police station, were extensions of the workplace. They came within the definition of course of employment as determined by the Court of Appeal in Jones v Tower Boot Co. Ltd [1997] IRLR 168 CA.
The EAT stated that it would have been different had the discriminatory acts occurred during a chance meeting. Hence work-related social functions may be interpreted as an extension of employment.
Contrast this with the case of Waters v Commissioner of Police of the Metropolis [1997] IRLR 589 CA, where a female officer alleged she had been sexually assaulted by a male colleague. At the time both officers were off duty. It was held that the assault had not been committed at the place of employment nor in the course of her colleague's employment, hence the employer could not be vicariously liable for it.
This case is currently on appeal to the House of Lords.
Essentially, the phrase, "course of employment", will be a question of fact for the tribunal to resolve. Factors which will need to be considered are whether a person is or is not on duty, and whether or not the conduct occurred on the employer's premises. In the case of Stubbs, the female officer was not and could not thought to have been socialising with the male officer on either occasion.
The decision of the Court of Appeal in the case of ST v North Yorkshire County Council [1999] IRLR 99 emphasises the division between discrimination statutes and the common law.
This case concerned a mentally handicapped schoolboy who brought a claim against the council for damages in tort on grounds that he had been sexually assaulted by the deputy headmaster while on a school trip.
The Court of Appeal were of the view that the acts of indecent assault were outside the course of employment. Assaulting a pupil was not a method of supervising the pupil's well-being, even though the assault occurred when the deputy headmaster was claiming to look after the pupil.
The common law principles of vicarious liability differ significantly from the principles governing employment law.
In the common law test for vicarious liability, the employer is responsible for acts actually authorised by him and for the way in which the employee does it. However, the employer will not be responsible for unauthorised acts done in the course of the employee's employment- this would be regarded as an independent act; the employee would be acting outside the employment domain.
The outcome in this case appears to embrace a rather severe test - that is an employee is not employed to commit an assault, hence an assault is outside the course of employment.
This decision plainly demonstrates that the Court of Appeal accept that the common law test for determining the scope of employment and the discrimination law test are distinct.