AB v Grafters Group Ltd (t/a CSI Catering Services International)

On 27th October 2021, Ms Noble emailed out to all workers stating that “next week is absolutely bananas” and providing a number of shifts that needed working between 1st and 7th November. This included a Bar Work assignment at Hereford Races. The details of the assignment was that a lift was to be provided …, leaving the Respondent’s office at 07:30hrs.

The Claimant replied at 1418hrs on 27th October … stating “pls note my confirmation of assignments for in the order preference pls – all Racecourse(s)…”. Ms Noble replied at 1422hrs indicating that the Claimant was booked for the Hereford job on 1st November, as well as three other shifts, and asking her to confirm if this was suitable.

There was then a further exchange of emails between Ms Noble and the Claimant on 27th October … about shifts between 1st and 7th November. A screenshot from the ASPIRE record for the Claimant … showed that the Claimant was recorded as “Booking Filled” for the 1st November shift at 14:20hrs on 27th October 2021. This accords with the email correspondence we have been referred to. The booking was changed to “unfilled” at 11:30 on 29th October 2021.

The Respondent struggled to provide transport for the employees who were booked to work at Hereford and this was communicated to the Respondent’s point of contact at Hereford, Shaun Richards, on 28th October …. Transport was arranged with Mr Richards driving and an email was sent to the 4 employees who did work that shift …. Whilst this email does not have a timestamp on it (and we have not been provided with the original email), the Tribunal finds it more likely than not that this would have been sent on or around 29th October 2021. This is because the email at … is time-stamped 13:01hrs and the Claimant’s shift was cancelled at 11:30, indicating that Ms Noble was resolving the transport situation during that period.

We find that the Respondent did cancel the Claimant’s shift and was not expecting her to work on 1st November 2021, however we also find the Claimant did genuinely believe that she was due work that day. We prefer the Claimant’s evidence that she received no communication from Ms Noble about the shift being cancelled. She purchased new black shoes on 31st October for work … and booked a taxi to take her to the Respondent’s office …, although this arrived after 06:30 that day, and she therefore missed the transport. These were all steps which support her assertion that she was not told of the shift cancellation. [emphasis added]

Whilst the Respondent did not provide transport to the majority of the shifts it booked its employees for, it did operate a system where one of the employees on that shift would drive the others, in exchange for payment. That payment was made directly by the employees to the driver, with the amount communicated to them in advance. …

On 9th October, the Claimant was booked to work at Chepstow Races, with someone called Ms Paton providing transport. The Claimant says, and we accept, that in fact CD drove her to Chepstow that day. They exchanged mobile numbers.

The Claimant and CD exchanged messages via WhatsApp frequently after this. Some of these messages, from CD to the Claimant, were sexual in nature. For example, CD told the Claimant that he had “too many girls pestering me” …, that “sex is fun like sometimes you fancy or might want to sleep with someone you have only seen not met…” … and referred to sex outside of marriage as not being a sin “unless they try [to] rape you” … .

Further, in the early hours of 1st November 2021, he asked the Claimant if she knew how to kiss, and that he could teach her …, and if “boys in India find you beautiful”. He referred to her as “My Pakistani princess” … and asked her when she was getting a taxi in the morning. The Tribunal concluded that CD believed the Claimant was due to work at Hereford the following morning.

The Tribunal was concerned that the Claimant had not provided the full WhatsApp transcripts between herself and CD, especially around 1st November. The messages were contained in Bundle B from …, however were not in chronological order, often skipped between different dates and times, and were missing certain parts of the conversation (as demonstrated by the first message at ….). Whilst the Claimant submits that CD must have been told by the Respondent that she was due to work at Hereford, given the Tribunal’s finding that the Respondent was not expecting the Claimant to work on 1st November, we find it more likely than not that the Claimant had told CD that she was working that day.

At the time that CD was messaging the Claimant in the early hours of 1st November, he was working for the Respondent at a shift at Amazon’s premises in Bristol. He had been booked to work multiple Amazon shifts between 26th – 31st October … . Whilst the ASPIRE software said these shifts ended at 23:59hrs each day, the Tribunal is satisfied that this is an error. As well as the Tribunal’s finding about the accuracy of the software, it was clear that these shifts were advertised (and booked) as ending between 03:00 – 04:00 the following morning. Examples of this include CD’s booking confirmation for 28th October … and also that other shifts on 1st and 2nd November 2021 which were offered to the Claimant, again with the 04:00 end time … .

CD tried calling the Claimant on 6 occasions via WhatsApp between 05:37 and 06:15 … . For someone who was not working at Hereford that day, the Tribunal observes that he was showing a high level of interest into the Claimant’s movements that morning. The Claimant arrived late and missed the transport … and CD offered to take her to Hereford …. The Tribunal finds that the Claimant was in CD’s car shortly after 07:00hrs on 1st November. [emphasis added]

Whilst the Tribunal did not hear from CD, we did have the Claimant’s witness statement, her oral evidence and also an account of what CD told the police, as summarised in the Victim’s Right to Review document contained in both bundles A and B. From those various sources, we find that shortly after the journey began, CD stopped to put petrol in his car, when he had a telephone conversation with a colleague at the Respondent. This colleague told CD that the Claimant was not due to work that day which CD then relayed to the Claimant.

The Claimant asked CD to drop her off at a bus stop, which CD refused to do. As they were driving, he slid his hand under her coat and placed it on her abdomen. He kept it there whilst continuing to drive the car. He showed her a pornographic video on his mobile phone, and he asked her about whether she knew what an orgasm was, and referred to a “threesome” in the context of a sex act.

The Claimant thought he was driving towards Pontypridd Golf Club when he stopped the car along a road, before touching the Claimant’s chin and trying to place his finger in her mouth. He asked her to kiss him. The Claimant did not respond and so he licked his own finger before placing it in her ear. We note that CD admitted to the police that he had placed his finger in her ear (described as a “wet willy”), and whilst the Claimant says this occurred continuously for a period of 15 minutes, we do not need to make findings as to the extent or length of this incident.

Eventually the Claimant was able to escape from CD, and she phoned one of the Respondent’s managers, James English … . He told her to phone the police, which she already had done so at 08:27hrs… . She provided a witness statement to the police at 1138hrs that day (which the Tribunal have not seen). The Police report also refers to the Claimant having made a retraction statement on 6th November … , which again, the Tribunal has not seen. The Tribunal notes that the police summary is that the Claimant “withdrew her support for a Prosecution”, which the Tribunal finds is not necessarily the same as telling the Police that she had not actually been assaulted.

On 11th November 2021, CD was arrested and interviewed under caution. He told the police he had put his finger in her ear as a practical joke, but denied any form of sexual assault … .

Notwithstanding that there was an ongoing police investigation, at least until 14th December 2021 when CD was released by the police without charge, the Tribunal is concerned that the Respondent seems to have done nothing to either investigate CD, or to provide any level of support or care to the Claimant, who was making a very serious allegation of sexual assault.

The Claimant did not work another shift for the Respondent, although she told the Tribunal (and we accept) that prior to 1st November 2021, she had decided not to accept any further work with the Respondent after 7th November 2021, and would have confirmed her resignation subsequently.

If we conclude that sexual harassment did take place, we would then need to consider the Respondent’s defence under s.109(1) EqA 2010 – that the actions of CD that day were not done by him “in the course of his employment”.

In Jones v Tower Boot Co Limited [1997] ICR 254, the Court of Appeal held that “in the course of employment” should be construed “in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstances which is liable to occur in particular instances – within or without the workplace, in or out of uniform, in or out of rest-breaks – all laymen would necessarily agree as to the result… the application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort”.

In Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547, the EAT stated (in the context of a dispute about whether a work social gathering was “in the course of employment”):

Whilst further cases indicate fact specific judgments as to which side of the line a set of particular circumstances fall, we will need to focus on our findings of fact, and whether those findings amount to someone acting in the course of their employment. The belief of the Claimant that CD was acting in the course of his employment is irrelevant. [emphasis added]

Having found that CD did subject the Claimant to sexual harassment, we then are required to determine whether the Respondent is liable for such actions, because this sexual harassment occurred “in the course” of CD’s employment.

The Tribunal’s judgment is that CD was not acting in the course of his employment from around 06:00 onwards on 1st November 2021 for the following reasons:

Whilst we accept the Claimant believed she was required at work, and so she believed she was at all times acting in the course of her employment her belief is irrelevant to the objective conclusion we have to reach as [to] whether CD was acting in the course of his employment (and not, whether he thought he was).

Therefore, whilst we have found on balance of probabilities that CD did sexually harass the Claimant in his car on 1st November 2021, both through unwanted physically touching and comments, the Respondent is not liable for the actions of CD under s.109(1) EqA 2010, because the actions of CD were not done in the course of his employment with the Respondent.

Accordingly the Claimant’s claim for sexual harassment against the Respondent is dismissed. [emphasis added]

Ground 1

When determining whether CD’s sexual harassment of C had taken place in the course of employment under section 109(1) of the Equality Act 2010 (“EqA”), the ET erred in law in failing to have regard to whether what happened between CD and C occurred in circumstances that were an “extension of their employment”, in line with Chief Constable of Lincolnshire Police v Stubbs and others [1999] ICR 547.

Ground 2

The ET erred in law by failing to have regard to whether the following relevant considerations meant that what occurred was an extension of employment:

Ground 3

The ET erred in law in having regard to the following irrelevant considerations, namely:

109 (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer. …

It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A—

In the course of employment

Several cases have dealt with the issue of whether alleged acts can be said to be “in the course of employment”. The leading authority is still the decision of the Court of Appeal in Jones v Tower Boot Co Ltd [1997] ICR 254 . In that case, the employer had argued that it should not be liable for serious acts of harassment by white employees against a black co-worker on the grounds that those acts were not done in the course of employment within the meaning of the then relevant provision under section 32(1) of the Race Relations Act 1976 .

The Employment Appeal Tribunal had overturned the tribunal’s decision that the acts were done in the course of employment on the basis that the phrase, “in the course of employment”, had a well-established meaning in law derived from the law of tort, under which an important consideration was whether an unauthorised wrongful act of an employee was so connected with that which he was employed to do as to be a mode of doing it. The appeal tribunal considered that by no stretch of the imagination could the acts in that case, which included deliberate branding with a hot screwdriver and whipping, be described as an improper mode of performing authorised tasks.

The Court of Appeal overturned the decision of the appeal tribunal and restored that of the employment tribunal. In doing so, it held that the relevant provisions of the anti-discrimination legislation should be given a broad interpretation and that it would be inconsistent with that approach to allow the concept of an act being done in the course of employment to be construed in any sense more limited than the natural meaning of those everyday words would allow. Waite LJ held as follows, at p 265:

“The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words ‘in the course of employment’ in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances—within or without the workplace, in or out of uniform, in or out of rest-breaks—all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each industrial tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.”

In Waters v Comr of Police of the Metropolis [1997] ICR 1073 the Court of Appeal had to consider whether a sexual assault, committed by a male police officer (“T”) against a female colleague at a police section house where she had a room and when both were off-duty, amounted to an act committed by T in the course of employment. The tribunal held that the conduct was not done in the course of employment. The appeal tribunal agreed. Waite LJ in the Court of Appeal dismissing the claimant’s appeal held as follows, at p 1095:

“T and the applicant were off-duty at the time of the alleged offence. He lived elsewhere and was a visitor to her room in the section house at the time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only with no working connection at all. In those circumstances, it is inconceivable in my view that any tribunal applying the test in the Tower Boot case could find that the alleged assault was committed in the course of T’s employment. This ground of appeal therefore fails.”

The next authority dealing with the issue is Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 . In that case a female police officer was sexually harassed by a male colleague at a pub where officers had gathered socially after the conclusion of their duties. The tribunal considered that the social gathering was closely connected to work and that the male officer’s conduct was done in the course of employment. The appeal tribunal, the then President, Morison J, presiding, upheld the decision stating, at pp 557–558:

“We turn to the second point. We also reject Mr Bowers’s submissions on the proper interpretation of ‘course of his employment.’ We concur with the findings of the industrial tribunal, that the two incidents referred to, although ‘social events’ away from the police station, were extensions of the work place. Both incidents were social gatherings involving officers either immediately after work or for an organised leaving party. They come within the definition of course of employment, as recently interpreted by the Court of Appeal in Jones v Tower Boot Co Ltd [1997] ICR 254 and Waters v Commissioner of Police of the Metropolis [1997] ICR 1073 . It would have been different as it seems to us had the discriminatory acts occurred during a chance meeting between Detective Sergeant Walker and the applicant at a supermarket, for example, but, when there is a social gathering of work colleagues such as there was in this case, it is entirely appropriate for the tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. It seems to us that each case will depend upon its own facts. The borderline may be difficult to find. It is a question of the good exercise of judgment by an industrial jury. Whether a person is or is not on duty, and whether or not the conduct occurred on the employer’s premises, are but two of the factors which will need to be considered.”

In another decision of the appeal tribunal, Prison Service v Davis (unreported) 29 March 2000 , the then President, Lindsay J, considered that a sexual assault by a male prison officer against a female colleague could not, just because a clause in the employer’s code of conduct required employees not to do anything whilst on or off-duty that could bring discredit on the Prison Service, be regarded as conduct in the course of employment. The tribunal accepted a submission that such a clause cannot bring within the course of employment all acts done by employees when off-duty.

It was also argued by the claimant in that case that the fact that the employer had taken action after the incident in supporting the victim and in disciplining the male officer meant that it had impliedly accepted responsibility for dealing with the situation and that that supported the contention that the male officer’s conduct was in the course of employment. As to that contention Lindsay J said, at para 17:

“But again, that is a matter that arose after the event. It is hard to see how the question of whether, at an earlier point, Mr Randall was acting within or without the course of his employment can be affected by how the employer responded thereafter.”

The appeal tribunal reiterated that the application of the phrase “in the course of employment” will be a question of fact for each tribunal to resolve in the light of the circumstances presented to it.

The next authority to consider is that of Sidhu v Aerospace Composite Technology Ltd [2001] ICR 167 . In that case, Mr Sidhu was subject to racial abuse by a white colleague at a family day out at a theme park where that family day out had been organised by the employer. The tribunal dismissed Mr Sidhu’s contention that this was conduct in the course of employment, notwithstanding the fact that the employers had organised the event at which the conduct had occurred. The tribunal regarded as significant that the day out was not in the place of employment but at a public theme park; that everyone was there in their own time, not during working hours, and that the majority of the participants were friends and family rather than employees.

The Court of Appeal upheld the decision of the employment tribunal. Gibson LJ said, at para 28:

“Mr Gill further argued that on the facts the tribunal should have found that the day out was ‘in the course of employment’. He pointed to the fact that disciplinary proceedings had been initiated against Mr Smith and Mr Sidhu. He referred to Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 , in which the appeal tribunal upheld the decision of a tribunal that a social gathering of work colleagues, at which a woman police constable had been subjected to inappropriate sexual behaviour by a policeman, was an extension of their employment. But the appeal tribunal there stressed that each case would depend on its own facts, calling for the good exercise of judgment by an industrial jury. I recognise that another tribunal could properly have reached the conclusion that the incident on the day out was in the course of employment. But in my judgment, it is quite impossible to say that no tribunal could have reached the conclusion which the majority did on this point.”

From these authorities, it can be seen that the main principle to be gleaned is that the question of whether conduct is or is not in the course of employment within the meaning of section 109 of the Equality Act 2010 is very much one of fact to be determined by the tribunal having regard to all the relevant circumstances. It can also be said that the words “in the course of employment” are to be construed in the sense in which the lay person would understand them and that there is no clear dividing line between conduct that is in the course of employment and that which is not. Each case will depend on its own particular facts.

It is also apparent from these authorities that the relevant factors to be taken into account might include whether the impugned act was done at work or outside of work, and, if done outside of work, whether there is nevertheless a sufficient nexus or connection with work such as to render it in the course of employment. Those kinds of factors are readily understood when one is dealing with the physical environment of the workplace. It is much more difficult to apply them to the virtual landscape in which many people these days spend their time. Thus, it may not be very easy to say whether a person is doing something whilst at work where some of that person’s work activity is conducted online at home. Equally, it may be very difficult to ascertain whether there is a sufficient nexus between an activity carried out on a personal social media account and their employment. If that account is used for purposes relating to work then it might well be open to the tribunal to consider that there is a sufficient connection with work to render an act done on that social media account as being done in the course of employment; whereas if the link with work is tangential or more tenuous then it might well be open to the tribunal to conclude otherwise.

We do not consider that it is possible or even desirable to lay down any hard and fast guidance in respect of these matters, especially as the extent to which social media platforms are used continues to increase. Just as is the case with the physical work environment, whether something is done in the course of employment when done in the virtual landscape will be a question of fact for the tribunal in each case having regard to all the circumstances. No clear boundary as to when such conduct will be in the course of employment can be defined. [emphasis added]

an employer is liable for “anything done” by an employee A in the course of A's employment: s109(1) EQA

It is the alleged harasser, A, who must be acting in the course of employment: s109(1) EQA

the term “course of employment” is not to be interpreted in accordance with the well-established meaning in law derived from the law of tort: Jones

the words “in the course of employment” are used in the sense in which every layman would understand them: Jones

anti-discrimination legislation should be given a broad interpretation: Jones

the application of the phrase will be a question of fact for each Employment Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort: Jones

because the determination of what is in the course of employment is essentially a question of fact for the Employment Tribunal, different decisions may be made in circumstances that appear similar:

the above examples emphasise that the question of whether a “thing” was or was not done in the course of employment is very much one of fact to be determined by the Employment Tribunal having regard to all the relevant circumstances: Forbes

while it is not possible or even desirable to lay down any hard and fast guidance some factors will generally be relevant such as whether the impugned act was done at work or outside of work: Forbes

if the “thing” was done outside of work the Employment Tribunal should consider whether there is nevertheless a sufficient “nexus or connection with work” such as to render it in the course of employment: Forbes. The Employment Tribunal may need to consider whether the circumstances are such as to make the situation an “extension of work and the workplace”: Stubbs

the “thing” may be done in the course of employment although it was not done at the workplace, or in working hours, if there is a sufficient “nexus or connection with work” such as when the situation is an “extension of work and the workplace”

whether the “thing” is done with the employer's or principal's knowledge or approval “does not matter”: section 109(3) EQA

a decision by an Employment Tribunal as to whether an act was done in the course of employment can only be challenged if there is a material misdirection as to the law, the decision is perverse in the sense that it falls outside the very wide ambit within which different views might reasonably have been taken about what is done in the course of employment, or the Employment Tribunal has demonstrably failed to take account of an important relevant factor or taken into account an irrelevant factor

Appeals to the EAT

… Any court with the experience of the members of the Employment Appeal Tribunal, and in particular that of the industrial members, will in the nature of things from time to time find themselves disagreeing with or having grave doubts about the decisions of Industrial Tribunals. When that happens, they should proceed with great care. To start with, they do not have the benefit of seeing and hearing the witnesses, but, quite apart from that, Parliament has given the Employment Appeal Tribunal only a limited role. Its jurisdiction is limited to a consideration of questions of law.

On all questions of fact, the Industrial Tribunal is the final and only judge, and to that extent it is like an industrial jury. The Employment Appeal Tribunal can indeed interfere if it is satisfied that the Tribunal has misdirected itself as to the applicable law, or if there is no evidence to support a particular finding of fact, since the absence of evidence to support a finding of fact has always been regarded as a pure question of law. It can also interfere if the decision is perverse, in the sense explained by Lord Justice May in Neale v Hereford & Worcester County Council [1986] ICR 471 at 483.

As to the role of the EAT in appeals such as the present one, under section 21 of the Employment Tribunals Act 1996 an appeal to the Employment Appeal Tribunal lies only on a question of law. Useful guidance as to the proper approach is found in the judgment of the Court of Appeal in R (Iran) v SSHD [2005] EWCA Civ 982 at [9], where examples of errors of law are given and include: i) making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”); ii) failing to give reasons or any adequate reasons for findings on material matters; iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters; iv) giving weight to immaterial matters; and, v) making a material misdirection of law on any material matter.[emphasis added]

Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the tribunal, but then overlooked or misapplied at the point of decision. The tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid. [emphasis added]

Analysis

Ground 2

Ground 3

Ground 1