AB v Grafters Group Ltd (t/a CSI Catering Services International)

For the purposes of section 109 of the Equality Act 2010, whether an alleged harasser acted in the course of employment is a broad, fact-sensitive question. The expression has its ordinary meaning and is not confined by tortious vicarious-liability principles.

Where harassment occurred outside ordinary work duties, the tribunal must still determine whether there was a sufficient connection with work. It must consider whether the circumstances amounted to an extension of work, the workplace, or working activities. The employer need not have known of or approved the harassment. However, its knowledge or approval of the surrounding arrangements may be relevant to whether the harasser was acting in the course of employment.

The claimant and CD worked for the respondent, a hospitality recruitment agency. The claimant mistakenly believed that she was due to work at Hereford Racecourse. CD offered her a lift from the respondent’s Cardiff office, but drove her elsewhere. The Employment Tribunal found that CD sexually harassed her during the journey.

The Employment Tribunal dismissed the claim against the respondent. It held that CD was not acting in the course of his employment because he was not due to work at Hereford, was not required to provide the lift, and the arrangement was not authorised by the respondent.

On the claimant’s appeal, the central issue was whether the Employment Tribunal had failed to assess the sufficient nexus between the harassment and CD’s employment after finding that the conduct occurred outside ordinary work duties.

1. Appeal allowed. The Employment Tribunal correctly directed itself that the expression “in the course of employment” in section 109(1) of the Equality Act 2010 has a broad, ordinary meaning. Its application is a fact-sensitive question for the Employment Tribunal and is not governed by tortious vicarious-liability principles.

2. The Employment Tribunal was entitled to find that CD was not at work, undertaking work duties, or working a shift when the harassment in the car occurred. The facts that he was not booked to work at Hereford, was not required to drive the claimant there, and that the respondent had arranged other transport were relevant to that initial conclusion.

3. However, that was not the end of the statutory enquiry. Having found that the impugned conduct occurred outside ordinary work, the Employment Tribunal was required to consider whether there was nevertheless a sufficient nexus or connection with work. This included whether the lift was an extension of work, the workplace, or working activities.

4. The Employment Tribunal failed to undertake that further assessment. It did not analyse material matters which it had found, including CD’s sexualised messages while working shortly before the incident, whether the messages and later harassment formed a course of conduct, CD’s previous work-related lift for the claimant, and the connection between the claimant’s belief that she was travelling to work and her presence in CD’s car. The claimant’s own belief was not relevant to whether CD was then performing work duties, but it could be relevant if CD exploited or induced that belief in providing the lift.

5. CD’s motive in offering the lift was not relevant in the manner adopted by the Employment Tribunal. A motive to obtain an opportunity to harass cannot itself remove conduct from the course of employment. Section 109(3) did not make the respondent’s knowledge or approval of the lift irrelevant: it provides that knowledge or approval of the harassment itself is immaterial, while knowledge or approval of surrounding arrangements may bear on the course-of-employment enquiry.

6. The case was remitted to the same Employment Tribunal. It had made careful factual findings and the outstanding issue did not require a fresh tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeal in [2025] EAT 126. The sexual-harassment claim was remitted to the same Employment Tribunal for a fresh determination of whether CD acted in the course of employment.
• Employment Tribunal: At Cardiff, dismissed the claimant’s sexual-harassment claim against the respondent. It found that CD had sexually harassed the claimant but that he was not acting in the course of his employment.