Soundbite: Employment Appeal Tribunal clarifies meaning of ‘in the course of employment’ for purposes of employers’ liability for sexual harassment

Employers are liable for acts of sexual harassment committed by their employees during the course of their employment. In the recent case of AB v Grafters Group Ltd, the Employment Appeal Tribunal (EAT) addressed the meaning and scope of ‘in the course of employment’.

AB, a hospitality agency worker employed by Grafters Group Ltd (the Company), incorrectly believed that she was due to work at Hereford Racecourse. She arrived late to the Company’s office from where she expected to be taken to Hereford via arranged transport. CD, a colleague of AB, told her she was not required to work that day and offered to give her a lift instead. CD then sexually harassed AB in the car.

The Employment Tribunal initially found that CD had not acted in the course of his employment when he sexually harassed AB and so the Company was not liable. The main reasons given by the Tribunal for its decision were that CD was not required or expected to give AB a lift and the Company did not know about or authorise the lift.

However, the EAT found that the Employment Tribunal had misapplied the legal test for ‘in the course of employment’. The main points made by the EAT were as follows:

• The words ‘in the course of employment’ should be given a broad interpretation to ensure sufficient protection for employees.
• Whether an act of harassment is done in the course of employment is a question of fact for the Employment Tribunal, having regard to all the relevant circumstances.
• An act of harassment may be done in the course of employment even if it was not done at the workplace, or in working hours, if there is a sufficient ‘nexus or connection with work’ such as when the situation is an ‘extension of work and the workplace’.
• Whether the act of harassment is done with the employer’s knowledge or approval ‘does not matter’.

The EAT explained that the fact that CD used the opportunity to continue sexualised conduct initiated during work was relevant (he had sent suggestive texts to AB earlier that day while he was working), that it was irrelevant that the Company did not know about or authorise the lift, and that the Employment Tribunal should have considered whether the lift and subsequent harassment constituted an ‘extension of employment’.

The appeal was therefore allowed and the case remitted to the same Tribunal for reconsideration.

This decision reinforces that employers may be held liable for sexual harassment occurring outside traditional work settings if there is a sufficient connection to employment.

If you need assistance in drafting a sexual harassment policy, conducting a sexual harassment risk assessment, dealing with complaints of sexual harassment or providing sexual harassment training to staff, please get in touch with a member of the team.