When does a discriminatory act occur ‘in the course of employment’?

The Employment Appeal Tribunal (EAT) has recently considered a case in which the claimant was sexually harassed by a male colleague who offered her a lift in his car. It examines the relevant factors to consider when deciding whether an act has occurred ‘in the course of employment’, meaning that the employer is potentially liable. 

AB v Grafters Group Ltd (t/a CSI Catering Services International) [2025] EAT 126 

Facts of the case 

AB was a hospitality worker employed by Grafters Group Ltd. She believed she was scheduled to work at a racecourse and went to the company’s office, expecting transport to the venue. Having missed the arranged lift, a colleague (CD), who was not rostered to work, offered to drive her. 

Earlier that morning, CD had sent AB sexually suggestive WhatsApp messages while working a night shift for the company. During the car journey, CD received a call confirming that AB’s shift had been cancelled. AB asked to be dropped off at a bus stop, but CD instead drove her to a remote golf course, where he subjected her to sexual harassment. This included inappropriate touching, showing her a pornographic video, and making lewd comments. 

AB reported the incident to the police, but no criminal charges followed. Crucially, the employer did not investigate the incident or offer support to AB. 

AB brought a claim for sexual harassment under the Equality Act 2010. The employment tribunal accepted that harassment had occurred but dismissed the claim, finding that CD was not acting ‘in the course of employment’, which is necessary to establish employer liability under section 109 of the Equality Act 2010. 

EAT decision 

AB’s appeal was upheld, and the case was remitted to be reconsidered by the employment tribunal. The EAT concluded that the employment tribunal had failed to consider relevant factors and had applied the wrong legal test in deciding whether CD’s actions had occurred ‘in the course of employment’.  

The EAT found that the tribunal had wrongly focused on the question of whether CD’s motive was work-related and whether the lift was formally arranged or sanctioned by the employer. The tribunal had failed to properly analyse whether the acts of harassment in question had occurred during what should be considered an extension of CD’s employment. It should have taken into account CD’s prior conduct (the earlier WhatsApp messages, sent during his shift) and considered whether the harassment formed part of a course of conduct. The EAT noted that the harassment had occurred during a journey that was connected to work, even if the shift was later cancelled. In addition, CD had previously given AB lifts to work, and informal transport arrangements were not uncommon in the respondent’s business.  

The Birketts view 

In its decision, the EAT outlined the relevant principles to apply when determining whether an act has occurred ‘in the course of employment’. It will be a question of fact for the tribunal to decide, having regard to all the relevant circumstances, applying a broad interpretation of the legislation. This means that acts of harassment occurring outside of the workplace and after normal working hours can still be found to have occurred ‘in the course of employment’, including at networking or social events such as staff Christmas parties. Even if a lift, social gathering or meeting isn’t officially organised by the employer, it can still fall within the scope of employment if it forms part of a broader work-related pattern or expectation. 

The existing duty on employers to take ‘reasonable steps’ to prevent sexual harassment, which is due to be further strengthened under the provisions of the Employment Rights Bill, means that employers should ensure that all staff understand that harassment will not be tolerated, whether it occurs on or off-site or during informal events and interactions.  

The tribunal had also noted in its decision that the respondent had failed to conduct an investigation or provide any support or care to the claimant in relation to what were very serious allegations against another employee. Employers should have clear procedures in place for responding to complaints of harassment, regardless of where or how they occur.