Employers can be held vicariously liable for discriminatory acts by employees – even if the event is held off site and out of normal working hours. The claim most likely to arise is probably sexual harassment, but employers should be aware that, under the Equality Act 2010, protection from harassment also extends to unwanted conduct on the grounds of age, disability, gender reassignment, race, religion or belief, and sexual orientation. Employers should ensure that their policy on harassment is up to date, and has been brought to the attention of all employees. The employer will have a defence to a claim of harassment if it can show that it took all reasonable steps to prevent the employee from performing the act. Ensuring that employees are aware of the policy on harassment is a key first step to establishing this defence.
Prior to 1 October 2013, an employer could be liable, under s.40 of the Equality Act 2010, for harassment of employees by third parties in certain circumstances. Following the repeal of s.40, employees who have been subjected to harassment by a third party may still be able to bring a claim against their employer, for example for constructive dismissal or negligence. Employers should ensure that they continue to take all reasonably practicable steps to prevent any harassment of employees, for example when choosing a venue for a social event.
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