Employment & Pensions Blog: Liability Under the Equality Act 2010 - What Does "In the Course of Employment" Actually Mean?

Under the Equality Act 2010, an employer is liable for the discriminatory acts of its employees if those acts are done “in the course of employment”. In the recent case of AB v Grafters Group Ltd, the Employment Appeal Tribunal (EAT) considered the extent to which something is done “in the course of employment”.

Background

Grafters Group is a recruitment company that operates in the hospitality and catering sector, and AB registered for work at their Cardiff Branch and carried out her first shift on 1 September 2021. On 1 November 2021, the Claimant was due to work at Hereford Racecourse. Grafters Group had arranged transport to take its workers to the racecourse, but AB arrived late to work that morning and had missed the transport. 

Instead, CD – another of Grafters Group’s workers – offered to drive AB to the racecourse. During the journey, CD was told over the phone that AB’s shift had been cancelled and she no longer needed to work that day, which he relayed to her. AB asked to be driven to a bus stop so she could go home, but CD ignored her request and pulled over near a golf course where he sexually harassed and assaulted her through unwanted comments and touching. AB reported CD to the police later that day, but no criminal charges were brought. 

AB brought a sexual harassment claim against Grafters Group on the basis that they were liable for CD’s actions. 

The Employment Tribunal

Grafters Group didn’t dispute what CD had done, but it did dispute that his actions had been done “in the course of his employment” with them. 

The Employment Tribunal unanimously agreed that AB had been sexually harassed by CD, but it agreed with Grafters Group that they weren't liable for CD's actions because he didn't carry them out in the course of his employment. The Tribunal’s reasoning was: 

1. CD was not due to work at the racecourse that day, nor was he required by the Respondent to drive AB there. 
    
2. Grafters Group had arranged official transport to Hereford, the only reason AB was in CD’s car was because she missed it. 
    
3. Where lifts were given to shifts by employees, Grafters Group specified a driver and paid for them to drive other employees. Whatever CD’s motivation for offering AB a lift that day, it was not because Grafters Group required (or had asked) him to.
    
4. Grafters Group had no knowledge of CD driving AB, and would not have sanctioned it because it knew that AB’s shift had already been cancelled so there was no need for the journey.  

AB appealed to the EAT. 

The EAT  

Upholding the appeal, the EAT held that the question of whether something had been done “in the course of employment” was dependent on the facts, and it had to be constructed in the way that a lay person would understand it to mean. 

Despite this the EAT did outline the following factors that should be taken into account when considering whether something was done “in the course of employment”:

1. Was the harasser at work, in working hours, or carrying out work activities?
    
2. If done outside of work, was there nevertheless a sufficient nexus, or connection, with work such as to render it in the course of employment?

The EAT held that the Tribunal had failed to consider whether there was sufficient nexus or connection between CD’s actions and his employment (point 2.). For example, the Tribunal had not taken into account that CD had contacted AB earlier that morning while he was working for Grafters Group, nor had it considered the close connection between CD’s job and why AB was in the car that day (including that he had driven AB to work in the past).  

AB’s appeal was therefore upheld, and the case was remitted back to the same Tribunal for reconsideration. 

Comment

The facts of this case took place prior to the introduction of the employer duty to take reasonable steps to prevent their employees being sexually harassed in the course of their employment – which came in on 26 October 2024.

Notwithstanding this, the case serves as an important reminder to employer’s that their liability for acts taken “in the course of employment” is broader than most would probably think. It isn’t limited to only things done and said in the workplace during working hours. It is dependent on the wider factual circumstances of what happened and how it came to happen. In any event, this case reinforces the importance of workplace discrimination and harassment/sexual harassment training for all staff. 

If you require assistance or guidance on discrimination or harassment/sexual harassment at work, please contact a member of our Employment Team.