In the case of AB v Grafters Group Limited the EAT considered the meaning of “in the course of employment” for the purposes of the Equality Act 2010.
The legal background
Under the Equality Act 2010 (“the Act”) anything done by a person in the course of their employment is treated as also done by the employer. It does not matter whether that thing is done with the employer’s knowledge or approval. The words “in the course of employment” are to be given their ordinary meaning. It can become more difficult to determine if something has been done in the course of employment when it is outside of the workplace or outside of normal working hours.
Facts
The Respondent is a Hospitality Recruitment Agency. The Claimant and a colleague, CD, worked for the Cardiff Branch of the Respondent. On 1 November 2021, the Claimant incorrectly believed that she was due to work at Hereford Racecourse. She was late arriving at the Respondent’s office in Cardiff, where she thought transport had been arranged to take her to Hereford. Instead, the Claimant was given a lift by CD, who then told her she was not required to work that day. The Claimant requested to be taken home, but instead CD drove her to a golf course where the Employment Tribunal held that he subjected her to sexual harassment.
Employment tribunal
The Tribunal held that CD had sexually harassed the Claimant. The Tribunal went on to look at the Respondent’s defence under the Act as to whether the actions of CD that day were not done in the course of employment. The Tribunal concluded that CD was not acting in the course of his employment and so the Respondent was not liable. The Claimant appealed to the Employment Appeal Tribunal (“EAT”).
EAT
The EAT found the Tribunal had erred in its analysis of the closeness of the connection between CD’s job for the Respondent and why the Claimant was in his car when the harassment occurred, including the fact that CD had previously driven the Claimant to a job. The Tribunal needed to consider whether there was "nevertheless a sufficient nexus or connection with work such as to render it in the course of employment", including whether the provision of the lift was an "extension of work and the workplace". The case has been remitted back to the Tribunal for this analysis to take place.
The EAT provided a comprehensive explanation of the law in this area, including the following key principles:
- An employer is liable for “anything done” by an employee in the course or employment.
- It is the alleged harasser who must be acting in the course of employment.
- The words “in the course of employment” are used in the sense in which every layman would understand them.
- Anti-discrimination legislation should be given a broad interpretation.
- The application of the phrase [in the course of employment] will be a question of fact for each Employment Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.
- Because the determination of what is in the course of employment is essentially a question of fact for the Employment Tribunal, different decisions may be made in circumstances that appear similar:
- a sexual assault, committed by a male police officer against a female colleague at a police section house where she had a room when both were off-duty was found not to have been done in the course of employment.
- a male police officer who sexually harassed a female colleague at a pub where officers had gathered socially after the conclusion of their duties was acting in the course of employment.
- racial abuse by a white colleague at a family day out at a theme park was not done in the course of employment.
- The above examples emphasise that the question of whether a "thing" was or was not done in the course of employment is very much one of fact to be determined by the Employment Tribunal having regard to all the relevant circumstances.
- While it is not possible or even desirable to lay down any hard and fast guidance some factors will generally be relevant such as whether the impugned act was done at work or outside of work.
- If the "thing" was done outside of work the Employment Tribunal should consider whether there is nevertheless a sufficient "nexus or connection with work" such as to render it in the course of employment.
- The Employment Tribunal may need to consider whether the circumstances are such as to make the situation an "extension of work and the workplace".
- The "thing" may be done in the course of employment although 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 "thing" is done with the employer's or principal's knowledge or approval "does not matter".
Comment
The EAT’s decision provides important clarification on the scope of employer liability under the Equality Act 2010. It reinforces that the phrase “in the course of employment” must be interpreted broadly and in line with everyday understanding, rather than through the lens of vicarious liability in tort. The EAT emphasised that even conduct occurring outside the workplace or working hours may fall within the scope of employment if there is a sufficient connection to work - such as the provision of transport by a colleague. The case has been remitted for further analysis, but the judgment offers valuable guidance on assessing whether discriminatory acts are attributable to the employer, particularly in less conventional settings.
Sexual harassment is under increasing scrutiny. With the duty to prevent sexual harassment in the workplace taking effect from October 2024, and further reforms in the pipeline under the Employment Rights Bill - including the extension of the duty and the introduction of third-party liability across all protected characteristics - employers face a pivotal moment. Now is the time to proactively conduct regular effective risk assessments, review policies, strengthen training, and ensure robust reporting mechanisms are in place to meet evolving legal obligations and foster a safer, more inclusive workplace.
