When does harassment occur “in the course of employment”?

Employers are often held liable for acts of harassment committed by their employees “in the course of employment”, but they may avoid liability if they can demonstrate that they took “all reasonable steps” to prevent it.

The Employment Appeal Tribunal (EAT) recently considered this issue in the case of AB v Grafters Group, examining the factors relevant to determining whether an act of harassment occurred “in the course of employment” – a decision that could make the employer liable.

Background

AB worked for Grafters Group Ltd, a hospitality recruitment agency. In October 2021, a colleague, CD, drove AB to work at Chepstow Racecourse. They exchanged phone numbers and subsequently sent messages to one another, some of which from CD were sexual in nature.

In November 2021, AB mistakenly believed she was scheduled to work at Hereford Racecourse. She arrived late at the company’s Cardiff office expecting transport to the venue. Having missed the arranged transport, she accepted a lift from CD, who was not rostered to work at the event.

Earlier that morning, CD had sent AB sexually suggestive WhatsApp messages while working a night shift for the company. During the car journey, CD received a call confirming that AB’s shift had been cancelled. AB asked to be dropped off at a bus stop, but CD instead drove her to a remote golf course, where she alleged she was subjected to sexual harassment.

AB brought a claim against the company for sexual harassment under the Equality Act 2010. The Employment Tribunal (ET) found that AB had been subjected to sexual harassment but dismissed her claim that CD was acting “in the course of employment” and the company was not held liable.

The ET concluded that CD’s motive was not linked to his employment, as there was no requirement or expectation for him to drive AB to work, nor was the employer aware of this arrangement.

Appeal

AB appealed the ET’s decision. The appeal was upheld, and the case was remitted back to the ET for reconsideration.

In determining the appeal, the EAT criticised the ET for failing to properly analyse the relevant circumstances and found that it had applied the wrong legal test in deciding whether CD’s actions occurred “in the course of employment”.

Regardless of whether the company had knowledge of or approved of the lift, the EAT held that the starting point should generally be to consider whether the alleged harasser was at work, during working hours, and carrying out work activities.

If not, the ET should then assess whether there was a sufficient “nexus or connection with work” to render the actions “in the course of employment”. In this case, the question was whether the lift constituted an “extension of work and the workplace”.

The EAT also found that the ET had wrongly focused on whether CD’s motive was work-related. It held that CD’s motive in offering the lift was irrelevant, commenting that: “the fact that a person’s motivation is having an opportunity to harass does not mean that the person is not in the course of employment.”

Instead, the ET should have considered CD’s prior conduct (including the earlier WhatsApp messages sent during his shift) and whether the harassment formed part of a course of conduct. The EAT noted that the harassment occurred during a journey connected to work, even though the shift was later cancelled. Additionally, CD had previously given AB lifts to work and informal transport arrangements were not uncommon in the company’s business.

Key takeaway for schools

This case provides valuable insight into interpreting the meaning of “in the course of employment” for harassment claims. It serves as a stark reminder to schools that it is the connection between an employee’s actions and their employment – not their motive or the school’s knowledge – that is relevant, even if those actions occur outside typical working hours or locations.

Determining liability is a factual exercise that requires consideration of the surrounding circumstances on a case-by-case basis. This case reinforces that tribunals and courts will interpret anti-discrimination legislation broadly where possible.

In a school setting, “in the course of employment” encompasses a wide range of activities beyond classroom teaching. Harassment occurring during school trips, work events (on or off site) or via digital communication may expose schools to liability. In such circumstances, the line between personal and professional conduct can become blurred.

Therefore, robust policies, regular training, transparent reporting mechanisms and early intervention are essential to managing potential risks.