Case study: AB v Grafters Group [2025]
In AB v Grafters Group, the Employment Appeal Tribunal recently considered what ‘in the course of employment’ means in the Equality Act 2010.
Background facts
On 1 November 2021, AB believed that she was scheduled to work at Hereford Racecourse. AB missed the scheduled transport having arrived late, so she accepted a lift from a male colleague. At that stage, AB thought she was going to work.
At some point during the journey, the male colleague informed AB that her shift had been cancelled. AB asked to be dropped off at a bus stop or at home, before the male colleague proceeded to sexually harass her in the car.
AB brought a claim of sexual harassment to the Employment Tribunal.
Employment Tribunal Hearing
The Employment Tribunal found that the male colleague had sexually harassed AB, but the employer was not liable for his actions because he was not acting in the course of his employment.
In support of this finding, the ET noted that the Respondent had arranged transport for employees to Hereford and that the Respondent did not require or expect informal lifts between colleagues. The ET further concluded that the male colleague’s motive in offering a lift was not linked to his employment and the Respondent did not arrange the lift. As a result, the ET dismissed AB’s claim for sexual harassment against the Respondent. AB appealed to the EAT.
Employment Appeal Tribunal
The EAT found that the Tribunal had failed to apply the correct legal test and referred to established case law, including Chief Constable of Lincolnshire Police v Stubbs [1999] which allows for acts outside of work to be classed as work-related if there is a close enough connection. The EAT criticised the previous Tribunal for failing to adequately consider whether the colleagues sexual harassment occurred in circumstances that constituted an “extension of their employment”.
The EAT also highlighted that the Tribunal had established certain factual findings, such as the colleague having previously driven AB to work and that the male colleague had sent sexually harassing text messages to AB in the hours immediately preceding the incident whilst he was on shift. While the lift had not been formally arranged by the Respondent, the EAT concluded that it could still be considered as connected to employment in light of these facts.
The appeal was upheld, and the case was remitted to the original Tribunal for further consideration.
Key points to note
- This case serves as a reminder that employers can be liable for discrimination or harassment, even if it occurs outside the usual workplace.
- Acts outside of work can be classed as work-related provided there is a close enough connection.
- It is important to look at the context in which the harassment takes place – previous conduct and workplace relationships can potentially influence whether an act is found to be in the course of employment.