In this episode 254 of the employment law and HR podcast I cover a recent Employment Appeal Tribunal decision that sheds light on a vital question for employers:
In this episode we cover:
When is an employer responsible for the actions of an employee who sexually harasses a colleague?
This case involved a hospitality recruitment agency and a worker (AB) who was sexually harassed by a colleague (CD) while travelling in his car.
The central legal issue was whether the colleague's conduct could be said to have taken place "in the course of employment" under section 109 of the Equality Act 2010 a key factor in determining whether the employer was legally liable.
The Employment Tribunal originally found that, although harassment had occurred, the agency was not liable, as the harasser was not "acting in the course of his employment" at the time.
However, the Employment Appeal Tribunal (EAT) found that the Tribunal had not properly applied the test for what counts as an "extension of employment" and sent the case back to be reconsidered.
What Went Wrong at the Tribunal?
The Tribunal accepted that serious sexual harassment took place but concluded that:
- The harasser was not working or carrying out duties at the time;
- The lift to work had not been arranged or approved by the employer; and
- The employer could not have known about the encounter.
The Employment Appeal Tribunal disagreed, highlighting that the Tribunal had failed to consider several important factors, such as:
- The ongoing work-related connection between the parties (including prior lifts to jobs);
- The harasser's work messages, sent during his shift, that were sexually inappropriate; and
- The claimant's genuine belief that she was travelling for work when the incident occurred.
These could all point to the events being an "extension of the workplace" — and therefore potentially within the "course of employment".
Why This Matters for Employers
This judgment is a reminder that liability for harassment is not confined to the four walls of the workplace. If there is a sufficient connection between the conduct and work, such as communication during work hours, travel to or from work, or employer-organised events, the employer could still be found responsible.
Key Takeaways
- Think beyond the workplace. Harassment at social events, during work travel, or over work-related messaging platforms may still fall "in the course of employment."
- Risk Assess. Carry out a risk assessment to identify risk areas in your organisation and take mitigating steps accordingly.
- Review policies and training. Clear boundaries and reporting procedures for off-site conduct can reduce risk.
- Take complaints seriously. In this case, the Tribunal noted concern that the employer had done little to support the claimant or investigate the alleged harasser while a police inquiry was ongoing.
- Context is everything. Whether an act is "in the course of employment" will always depend on the facts but employers are expected to take a proactive stance in preventing and addressing harassment.
You can read the full judgement here: https://www.gov.uk/employment-appeal-tribunal-decisions/ab-v-grafters-group-ltd-ta-csi-catering-services-international-2025-eat-126
Duty to take steps to prevent sexual harassment
All employers, regardless of size and resources, now have a legal obligation to take steps to prevent sexual harassment.
One of the steps you need to take is to train your employees on what sexual harassment is and standards of conduct required.
We have a range of training options available to you, including our DIY employee training which is available for £15 plus VAT per person. If you want to 'bulk buy' 50 or more places we have a discount code available please do not hesitate to get in touch.
You can access the training here: https://employment-law-hr-advice.teachable.com/
We also have full DIY resources for employers here: The prevention of Sexual Harassment at work
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