Trigger warning: this article reports on a tribunal case that relates to the conduct of sexual harassment.
Dare we say it – the festive season is fast approaching? For many employers, they will be starting to plan festive social events and so this month’s case report comes at a good time to remind employers of their responsibility for preventing and addressing sexual harassment.
It is case AB v Grafters Group Ltd (t/a CSI Catering Services International) and highlights a crucial point for all employers: that your responsibility for preventing and addressing sexual harassment can extend further than you might think, even outside of the physical workplace and official working hours.
The ruling given in this case, provides employers with a good understanding of the concept of “in the course of employment” which is key for helping to protect staff and the business.
The Case
This case involved an individual referred to as AB (the claimant) and a colleague, both of whom worked for Grafters Group Ltd, a hospitality recruitment agency.
In November 2021, AB genuinely believed she was scheduled to work at Hereford Racecourse and arranged to take company transport from the Cardiff office. However, her shift had been cancelled by the company two days earlier, although she had not been informed.
After missing the official transport, she was offered a lift to Hereford by her work colleague. Prior to this, in the early hours of the same day, her colleague had been working another shift for the company at Amazon, where he had been sending AB sexually suggestive WhatsApp messages. He also repeatedly called her that morning, showing significant interest in her movements.
AB accepted his offer of a lift and during the trip, her colleague relayed to her that her shift had been cancelled and asked to be dropped off at a bus stop. However, her colleague refused and on driving to a nearby location, then subjected her to sexual harassment.
Although he was later arrested, he was later released without charge. The initial Employment Tribunal noted that the employer seemed to have taken no action to investigate him or offer support to AB despite the serious allegations.
The Tribunal Findings
The initial Employment Tribunal concluded that she had been sexually harassed, however found Grafters Group Ltd, was not liable for his actions as he had not been acting “in the course of his employment” for several reasons:
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He was not due to work at Hereford that day
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He wasn’t required by the company to have driven AB as they had already arranged formal transport for employees
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The ET did not believe the company expected or required informal lifts between colleagues, citing examples of formal transport arrangements
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The employee’s offer of a lift was not arranged or approved by the company, and they had no knowledge of it
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AB’s belief that she was working or that he was acting in his employment was considered irrelevant to the question of whether he was in the course of his employment
The Employment Tribunal dismissed AB’s claim against their employer and appealed to the Employment Appeal Tribunal (EAT).
The EAT Decision
The EAT reviewed the case and overturned the initial Employment Tribunal’s decision, finding that the ET had made errors in how it applied the law concerning “in the course of employment”. It concluded there had been three key errors made:
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The initial tribunal should have considered whether the circumstances of the incident were an “extension of their employment,” rather than focusing solely on whether CD was literally “at work” doing his duties at that moment
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They had failed to properly consider important details, such as:
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Her colleague sending sexually harassing texts in the hours leading up to the incident, which did occur whilst he was working another shift for the company and believed AB was also due to work
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Whether his actions in the car should have been seen as a continuation or “course of conduct” from his earlier texting, which clearly took place while he was at work
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The close connection between his job and why AB was in his car, including the fact that he had previously driven AB to work assignments
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The ET improperly focused on irrelevant factors including:
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His motive for offering the lift. The EAT clarified that a harasser’s personal motivation does not mean their actions are outside the “course of employment,” as anti-discrimination laws should be interpreted broadly
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Whether Grafters Group Ltd had knowledge of or sanctioned the employee in giving AB a lift. While an employer doesn’t need to know about or approve of the specific harassment, their general knowledge or approval of attendance at a work-related event can be relevant to whether an employee is acting in the course of employment
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The EAT concluded that the initial tribunal had stated the law correctly but then “overlooked or misapplied” it in their decision.
They sent the case back to the original Employment Tribunal for reconsideration, instructing them to apply the correct legal tests and take all relevant factors into account.
Learnings for Employers
With the festive season fast approaching, this recent case provides several critical lessons for line managers and employers regarding sexual harassment and workplace responsibilities.
What this case demonstrates to us is not to assume that an incident that happens outside of normal work hours or premises automatically removes an employer’s responsibility.
Taking a holistic view, considering all connections to the employment relationship, is crucial. Proactive measures and a broad understanding of your obligations are the best defence against such claims.
