Misconduct at party - employer liable for sexual harassment

After reporting she was raped by a manager at a Christmas party, a woman has won a harassment claim against her employer.

The lady, who did not wish to be named told the employment tribunal that she had attended a Christmas function hosted by housebuilding company Crest Nicholson in November 2019.

At the time of the party the claimant worked at the same location as the manager who harassed her.

Although some staff members who did not wish to attend the day of the party, it was due to be a non-working day for the claimant with some expenses being covered by the employer.

The claimant had made her own arrangements to stay in a hotel in London with two other female colleagues. The party started at 1pm with a free bar all day.

The tribunal was told that the afternoon started with a drinking game which took place before sitting down to eat. Even at that stage of the day employees reported the manager becoming ‘touchy feely.’ 

Another employee who later filed a formal complaint witnessed that the manager had groped a colleague on the buttocks, pinned her against a pillar and then groped her breasts.

The site manager approached the claimant after the meal when she was able to tell him that every time she turned around, the manager seemed to be there. Several other employees noticed that he had started to pay attention to her. A photo was produced of the two siting closely together in the afternoon.

A second manager intervened who told the manager to stop the inappropriate behaviour. The tribunal heard that the manager threatened him with violence when he tried to intervene.

The tribunal heard that both the claimant and the manager were intoxicated later in the evening. There was an incident where the claimant was pushed to the floor by the site manager while dancing. Accusations, although unfounded, were made of her drinks being spiked.

When the party ended the claimant left for her hotel with the site manager because she felt that there were no risks to her personal safety, even though he had assaulted another employee earlier in the evening.

The judgement ruled that it was at this point that ‘the respondent failed to fully discharge the responsibility to protect the claimant.’ This meant that the company effectively became liable for everything that subsequently took place.

After the party, the claimant did not have the capacity to consent to any sexual activity. She woke up in pain with the manager assaulting her.

The claimant attended a sexual assault referral clinic a week later where it was noted that she had bad bruises on her inner thighs, legs, and the base of her spine. A medical examination showed that she also had internal bruising.

After confiding in a colleague about the assault, she was persuaded to tell her manager. The site manager was suspended until the middle of December and dismissed in January.

After finishing work early for Christmas, the claimant returned to work in January 2020 and asked for help from the company’s employee assistance scheme.

The claimant also contacted the police regarding the assault but was informed 15 months later that the Crown Prosecution Service did not have enough evidence and they would not be pursuing the case against the manager.

After the event, the claimant’s mental health deteriorated. She was certified as unfit to work due to depression diagnosed by her doctor.

The claimant notified Acas of a potential claim against Crest Nicholson. She resigned in October 2020.

Claims of harassment based on the events which took place at Christmas were upheld under Section 26 of the Equality Act although her claim for constructive dismissal due to discrimination was dismissed.

Judge Tynan from the employment tribunal referred to Crest Nicholson’s statement concerning their commitment to health and safety by commenting that regrettably the documented standards and expectations were not reflected in how the party on 28th November 2019 was organised or managed.

Judge Tynan stated that ‘the respondent is liable for any actions of the site manager in the course of his employment with the respondent.’ He added that the respondent had failed to have reasonable safeguards in place for the staff who attended the Christmas party. 

Mr Jim Moore, employee relations expert at HR consultancy Hamilton Nash stated that the case was a horrific example of why employers had a responsibility towards every staff member at any work social event.

Because of the attitude of the senior managers regarding inappropriate and drunken behaviour of a subordinate, a woman was raped. This means that the employer is held vicariously liable.

Any social events, particularly Christmas parties are notorious for potential serious consequences.

As the judge pointed out when summing up the case, not only is there a risk to staff members, but the employer is liable for workers’ actions. The very fact that it is work related connects it to the employment of any staff who attend.

While it may never be completely possible to prevent people becoming over excited at a party (even if alcohol is banned) it needs to be drummed into senior management that they have a responsibility to intervene immediately and address any bad behaviour before there is a chance of escalation.

A spokesperson for Crest Nicholson, which is a FTSE 250 company, stated that the judgement referred to ‘unlawful and unacceptable behaviour. This type of behaviour has no place in any work environment.’

Crest Nicholson stated that health and welfare of all their staff is their number one priority. They plan to appeal the judgment and declined to comment further.



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