HM Prison Service & Ors v Davis (EAT 29.3.00 case No. 1294/98)
Bennett v Essex County Council & Ors (EAT 2.11.99)

Two recent cases highlight the difficulties tribunals have when deciding on an employer's vicarious liability for acts of sexual and racial harassment.

In HM Prison Service & Ors v Davis EAT the point at issue was whether the employers were liable when an employee visited another work colleague at her home when they were off duty and made wholly unwanted sexual advances towards her. Essentially, the tribunal had to consider whether his actions were within "the course of employment."

Although the tribunal thought they were and held that the employer was vicariously liable, the EAT have overturned the decision. The EAT considered that the reasons given by the tribunal to reach their conclusion were unconvincing. The reasons relied on were that:

  • The Applicant had recently moved and as she had only given her address to her employer, the Respondent must have obtained it through work.
  • The disciplinary code applied to conduct "on and off duty" and provided for action to be taken when a criminal offence had been committed away from the workplace (the Applicant had reported the matter to the police).
  • Even though the harassment was off duty, it had impacted on the workplace since the employer organised the shifts so that both employees did not come into contact with each other.
  • The employer's reaction to the complaint suggested that they accepted responsibility for it.

In considering these reasons the EAT found that:

  • There was no direct evidence that the individual had got her address from the employer. Even if there had been the EAT found it difficult to see how his behaviour was in the course of employment.
  • The fact that an employer can legitimately complain about an employee's activities outside of employment does not make that activity within the course of employment.
  • The fact that the employer re-organised the shifts was irrelevant all that it showed was that the employer's behaved responsibly.
  • The concern shown by the employer did not necessarily indicate that the incident was bound up with the duties of employment.

In the EAT's view the harassment had only the most slender connections with work and the employer was not vicariously liable. This is a worrying development since on the facts it is hard to see that the harassment, did not fall within the ordinary meaning of "in the course of employment". However, the EAT held that the employer was guilty of sexual discrimination because by delaying the investigation into the incident they had subjected the Applicant to other detriment.

In Bennett v Essex County Council & Ors the question was whether the school had taken all reasonable steps to prevent racial harassment by pupils against a teacher even though a school was not vicariously liable for the acts of pupils. The teacher had been subjected to two periods of racial harassment. One between January to April 1995 and another in April 1996.

The Employment Tribunal had found that although the school's response to the first incident was inadequate, it had taken action in relation to the second incident. Overall then the school had not failed in its responsibilities.

The EAT found the tribunal's conclusion irrational and illogical. In applying the rule in Burton and Rhule v De Vere Hotels Ltd EAT [1996] IRLR 596 the EAT asked itself whether the event was sufficiently under the control of the employer to the extent that he could have prevented it. Consequently, the school's failure to properly deal with the first incident of racial harassment meant that the employer had failed in its duty to take all reasonable steps to prevent the teacher from being subjected to racial harassment by the pupils.

These cases show that even where employers may not be held to be vicariously liable for the actions of a harasser, they still have a duty to protect the person being harassed. Therefore failure to properly investigate incidences of harassment even when an employer may not be vicarioulsy liable can still lead to a finding of discrimination.