The recent Employment Appeal Tribunal (EAT) decision in the case of AB v Grafters Group Ltd serves as a timely reminder that employers can be liable for harassment claims even when it occurs outside the physical workplace and outside an employee’s normal working hours.

Case Overview

The Claimant was an agency worker in the hospitality sector. She believed she had been booked to work a shift at Hereford Racecourse and, after missing her transport, accepted a lift from a male colleague. During the journey, the colleague diverted to a remote location and sexually harassed her. The Employment Tribunal (ET) accepted the harassment had occurred, but held that the employer wasn’t liable under section 109 of the Equality Act 2010 because it hadn’t occurred “in the course of employment”. The main reasons were that there was no requirement or expectation that the male colleague drive the Claimant and because the employer did not know about, or approve, the lift. The EAT overturned the ET’s decision, finding it had had applied the wrong test and that it hadn’t properly considered whether the incident occurred in an “extension of employment”. The key question is whether the conduct had a sufficient connection to work, not whether the employer approved or organised the setting. The case has been sent back to the ET be reconsidered.

What does this mean for employers

This case serves as a reminder that the test to determine whether harassment took place “in the course of employment” is broad and conduct can fall within it even if it occurs off-site, informally, and outside working hours, where there is a work-related connection. It also highlights the increasing risk of liability for off-site harassment, particularly in sectors where informal travel and flexible working arrangements are common (e.g. hospitality, events, agency work).

Practical Steps

Employers must ensure they have robust and preventative steps are in place when it comes to defending harassment claims. To mitigate risk and strengthen chances of successfully relying on the “all reasonable steps” defence employers should:

Provide regular harassment training, particularly on sexual harassment;Enforce reporting channels and act promptly on complaints;Keep evidence of training and policy reviews;Regularly assess and review risks relating to travel, events and informal work-related interactions; andEnsure that anti-harassment policies cover off-site and travel-related conduct.

If you have any questions on harassment or if you would like to arrange training on the duty to prevent sexual harassment in the workplace, please do not hesitate to contact a member of the Glaisyers Employment Team