Employer liability in staff harassment: Where does responsibility begin and end?

Most claims of harassment brought against an employer relate to the actions of one employee (the perpetrator) against another employee.  The Employment Appeal Tribunal (EAT) decision in the case of AB v Grafters Group Ltd reminds us that even when harassment takes place outside working hours or away from the workplace, Employment Tribunals have to ask whether the conduct was nevertheless "in the course of their employment". Employers cannot rely solely on the fact that the misconduct occurred off duty or without their knowledge to avoid liability.

Background

The claimant, AB, was employed by Grafters Group Ltd, a hospitality recruitment agency. She believed she was scheduled to work at Hereford Racecourse on 1 November 2021 but unfortunately missed the arranged transport, and therefore accepted a lift from her colleague (CD). During that car journey, AB was sexually assaulted by CD, in the form of inappropriate touching and sexual comments.

The Employment Tribunal (ET) accepted that harassment had occurred. However, it concluded that the employer was not liable because CD was not acting “in the course of his employment”.  The ET found that not only was CD not booked to work at Hereford, but that the employer had already arranged alternative transport, and there was no expectation that CD would provide AB with a lift in the first place. The Tribunal also noted that the employer had no knowledge of the lift, and thus AB’s harassment claim against her employer was dismissed.

The EAT's Judgment

AB appealed, which was upheld, when the EAT found that the ET had not gone far enough in its analysis in considering whether the harassment occurred in circumstances sufficiently connected to work.  The fact that CD was not booked to work that night did not mean that there was no connection to his employment especially given that the ET had found that CD had sent sexualised WhatsApp messages to AB during his shift hours and his previous role in giving her lifts to jobs.

Also, it was found that the ET had wrongly considered whether the employer had sanctioned CD giving AB a lift.  Under section 109(3) EQA, employer approval of the situation in which the harassment arose is irrelevant.

The EAT's decision reminds us that harassment can take place outside the workplace or working hours if there is a sufficient connection with employment. The Tribunal should have assessed whether the lift was an “extension of work and the workplace”, particularly given the role of lifts in the agency’s operations and the sexualised messaging during CD’s prior shift.

The case was remitted to the same Tribunal to reconsider liability using the correct legal test.

Key Takeaways

This case reinforces the broad meaning of in the “course of employment” as a phrase that must be understood in its ordinary, everyday sense, not in the narrower technical sense.

Conduct at work socials, on work-related transport, or in other employment-linked settings may still fall within the ambit of employment.

Employer approval is irrelevant: the Equality Act makes it clear that liability of an employer for an employee's actions does not depend on whether the employer knew of or sanctioned the act.

Practical tips for employers

Employers can potentially defend such claims if they can show that they took all reasonable steps to prevent harassment.    What is or is not reasonable for an employer to do in these circumstances does vary from employer to employer, depending on the nature of the employer, their size, resources and any particular risk factors in a particular sector. 

A good starting point in the light of this case would be:

Review workplace transport arrangements:

• If staff commonly give lifts to one another for work assignments, employers should treat this as a formal work arrangement. Clear policies should set out expectations, responsibilities, and safeguarding measures.

Address risks that can occur outside the office:

• Regular and insightful training can be used to highlight when an employee will be representing their employer! It's important to train staff on appropriate expectations.

Provide channels and support to enable staff to report such matters:

• In this case, the Tribunal noted concerns about the employer’s failure to investigate or support AB following her complaint. Employers should have robust processes to deal with harassment allegations, regardless of where they occur.

Conclusion

AB v Grafters Group underscores the truth, that an employer’s liability for harassment is not confined to the four walls of the workplace. The EAT’s intervention shows that tribunals must consider whether conduct, though occurring off duty, was nevertheless ”in the course of employment". For employers, this underlines the importance of robust preventative measures that cover not only the workplace itself but also the wider context of work-related interactions. If you would like help in assessing your potential risks in this areas or assistance with training sessions, please do get in touch with your usual contact at Foot Anstey.

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