REWARD
of the “potential impact it could have on the company’s reputation and productivity”. Arguing this was just an excuse to dismiss them, the claimant brought a claim of unfair dismissal. An issue in this case was the fact there was very little documentation relating to it, and of what there was, much of it was in dispute. This included a set of policies and a code of conduct the respondent provided to the ET, which the claimant denied ever seeing before. Evidence of diary entries and a previous warning letter around the claimant’s performance were also presented by the respondent to the ET. The ET found that the documents weren’t given to the claimant at the time the respondent alleged they had been, and the diary entries were created in advance of the ET hearing to support the respondent’s case for dismissal. The claimant told the ET they were allowed to use the computer for personal use when there was no work to be done, and that some of the tasks the respondent had found to be personal were related to their work. Although they accepted they’d visited Rightmove, Very and Amazon, the claimant said it may have been during their lunch break. The ET had to decide if the dismissal was for a potentially fair reason. It held that conduct is a potentially fair reason, and using a computer for personal use is potentially a conduct issue. Because there was no prohibition on personal use of the work computer, and the time spent on personal matters was deemed not to be “excessive”, the ET held that conduct wasn’t the reason for the dismissal. The real reason for the dismissal was that the respondent had decided to dismiss the claimant prior to
them accruing sufficient continuity of service to bring an unfair dismissal claim. If the reason had been conduct, the respondent would have needed to show it held the genuine belief in the claimant’s misconduct based on reasonable grounds. However, there’d been no investigation and no formal hearing was held. The ET found that the dismissal was outside the band of reasonable responses. However, the above wouldn’t matter if the employee didn’t have the required two years’ service to bring an unfair dismissal claim. The ET concluded there’d been a transfer of undertakings and therefore they had the required two years’ service. The claimant was successful in the unfair dismissal claim and was awarded £16,920.00 Acts outside of work may still be in the “course of employment” In the case of AB v Grafters Group Ltd (t/a CSI Catering Services International), the EAT had to consider whether the ET failed to correctly assess whether the conduct took place in the “course of employment”. The respondent is a hospitality recruitment agency, sending staff to work for various clients. The claimant and a colleague (CD) worked from the same branch. Having driven together to a job site, they exchanged numbers, and CD sent the claimant numerous messages, some of which were sexual in nature. One day, when CD was working on a shift for the respondent, CD sent the claimant various messages, some of which were sexually suggestive. A few hours later, the claimant believed they were due to work in Hereford, but they were late for the transport which had been arranged to take them there
from the respondent’s office and missed it. Instead, CD offered the claimant a lift and they accepted it. During the drive, CD discovered the claimant had been taken off the schedule to work that day. On telling the claimant that, they requested to be taken home. Instead, CD drove elsewhere and allegedly sexually harassed the claimant. The claimant brought a claim for sexual harassment against the respondent; on the basis it was liable for the acts of its employee. The ET found that sexual harassment had taken place but concluded that CD wasn’t acting in the course of employment. It based this decision on several findings including that CD wasn’t scheduled to work on the day, there was no expectation for colleagues to provide lifts to each other and the respondent had no knowledge of the lift, nor did they sanction it. The claimant appealed, arguing the circumstances of the sexual harassment were an “extension of their employment” and the ET had failed to analyse the circumstances correctly. Agreeing with the claimant, the EAT found that the ET had failed to analyse the relevant circumstances correctly. Therefore, it failed to assess whether the sexual harassment which took place in the car was sufficiently connected to the work and an extension of the work and the workplace. The ET should have considered CD’s actions in texting the claimant in the hours before the incident and should also have analysed how close the connection was between CD’s job for the respondent, and why the claimant was in the car when the harassment occurred. As it couldn’t answer this, the case was remitted to the ET to decide on this point. n
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| Professional in Payroll, Pensions and Reward |
Issue 115 | November 2025
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