By Iain Birrell, Member, Trade Union Law Group, Sanjana Hossain, Employment Rights Lawyer & Jo Seery, Professional Support Lawyer.
Background
Grafters Group provide hospitality services. AB, a hospitality agency worker, believed she was due to work at Hereford Racecourse and, after missing arranged transport, accepted a lift from a male colleague (CD) who was not working at the time. During this journey, CD sexually harassed her. The Employment Tribunal accepted that the harassment occurred but ruled that the employer was not liable under section 109 of the Equality Act 2010 because CD was not acting "in the course of employment".
AB appealed, arguing the Tribunal failed to consider whether the incident had a sufficient connection to work such as to render CD’s conduct as occurring in the course of employment.
Key Issues
- Meaning of “in the course of employment”
Section 109 makes employers liable for discriminatory acts carried out “in the course of employment”. The Tribunal accepted that CD harassed AB, but found that CD’s conduct was not done while CD was at work and that he was not carrying out work activities at the time.
- Failure to consider “extension of employment”
The Employment Appeal Tribunal (EAT) found the Tribunal erred in not properly applying the principles from Chief Constable of Lincolnshire Police v Stubbs, which allow for acts outside of work to be classed as work-related if there’s a close enough connection—such as post-work social events or other work-adjacent settings.
- Connection to employment context
The EAT highlighted that the Tribunal had made findings of fact namely that: CD had previously driven AB to work, sent inappropriate messages during work hours, and that AB believed she was expected to be at work that day. While CD’s lift was not formally arranged, it may still have been given in connection with employment in light of these facts.
Outcome
The EAT upheld the appeal and sent the case back to the same Employment Tribunal. It found that the Tribunal failed to properly assess whether the lift and harassment took place in connection with employment and had given weight to irrelevant factors, such as CD’s motive or lack of employer approval—both of which are not necessary under s.109(3) of the Equality Act.
Why This Matters
The ruling reinforces that employers can be liable for harassment occurring outside traditional work settings if the circumstances connect sufficiently to the workplace. Union reps should be aware that informal settings—such as car journeys or social events—can still fall “in the course of employment” under the Equality Act.
For claimants, it highlights that the context of harassment, including previous conduct and workplace relationships, can influence whether the employer is held responsible—even if the act occurs outside the office or working hours.
