Employment Law

Sex not a work injury – the final word

I have blogged about this case a couple of times and it has now finally come to a conclusion. The High Court Australia held that injuries suffered by an employee from a sexual encounter during a business trip are not work-related. All previous courts had held that the injuries were work related as they did occur during a business trip (at a motel paid for by the employer). Other important factors included that the ‘activity’ was not illegal or in breach of any employer policies. It was also within the range of activities one could expect or foresee employees on business trips to be engaging in.

The High Court, however, while accepting the former, did not accept the latter. Rather, it emphasized whether the employer had in fact induced or encouraged the employee to engage in the activity leading to the injury. Clearly, in the case, the employer had not induced the employee to having sex (and its difficult to think of an employer who could justifiably do so without facing an harrassment claim) and the final outcome of the matter is arguably correct.

On the other hand, the decision is not helpful in giving any guidance on what activities are covered and which are not. For instance, employers usually also don’t ‘encourage’ employees having showers, but most employers expect their employees to be presentable. So does that mean an accident in the motel shower is work related? What if it happens at the local gym? Or at the restaurant downstairs or across the road?

I think the correct approach is not whether the employer induced or encouraged certain activities. It is or should be, in my opinion, whether a certain activity can either be reasonably expected or is reasonable foreseeable enough on a business trip to that particular location.

That means there are two parts. One is a foreseeable and reasonably expected activity. For instance, it is foreseeable for an employee to do a stroll to the hotel beach when on a business trip to say Fiji or Brisbane. Also to go to the hotel swimming pool, gym or restaurant or having a shower. What is not covered, however, are unreasonable activities (in a business context), for instance taking a cab to the pub at the other end of town, get drunk and beaten up.

And the reason why the latter should not be covered as a work injury is not only it is not foreseeable or reasonable, but also because (part two) the employer can not be expected to assess or cover such a risky behaviour and the location it happens. Where as an employer can easily research and confirm that the hotel, motel, resort is safe and up to standard, it cannot assess the neigbourhood or suburb the hotel is located in. Every trip outside the areas the employer pays for or outside are therefore also done at the employees own risk. (As you can see, this approach would also automatically cover any accidents to/from the location if taken with the employers’ approved method of transport).

In short, I believe that this two-step approach ensures a proper balance between the interests of employers and employees and is much clearer than trying to assess whether the employer ‘induced or encouraged’ the employer’s behaviour.

(For instance, imagine the employer in the case had known that the employee would meet an old friend for dinner at the restaurant and had said something like ‘Have fun’ or ‘Enjoy’. Would that qualify as an inducement or encouragement to have sex?)

Happy for the High Court to adopt my approach. No co-author credits expected.

Details:
http://www.claytonutz.com/publications/news/201310/30/high_court_says_injury_during_sex_on_a_work_trip_not_in_the_course_of_employment.page#page=1