UK: Sexual Harassment: When is it “during the course of employment”?

Authors: Graham Mitchell, Sophie Jackson, and Charlotte Stern

A recent case highlights how an employer can be liable for activities linked to employment.

Grafters Group provided hospitality services and the Claimant was a hospitality agency worker. The Claimant (AB) believed she was booked to work at Hereford Racecourse. She missed the arranged transport and accepted a lift from a male colleague, CD.

During the car journey, AB was subjected to sexual harassment by CD.  AB reported the incident to the police and to the employer, who failed to take any action.  AB resigned and brought a claim for sexual harassment. Initially, the Claimant’s claim failed. The Employment Tribunal accepted that harassment occurred but found that CD had not acted in the course of his employment, so the employer was not liable.

Disagreeing with the Employment Tribunal, the Employment Appeal Tribunal (EAT) highlighted that:

• the employer is liable for ‘anything done’ by an employee in the course of their employment
• it does not matter whether that behaviour is done with the employer’s or principal’s knowledge or approval, and
• if there’s a sufficient ‘nexus or connection with work’, then an employer may be liable for the behaviour even if it is not done at the workplace or during working hours.

The EAT concluded that although the initial Tribunal had been clear that CD had sexually harassed AB, they had not properly considered whether the incident was done “in the course of employment”. The case has been sent back to the Tribunal to consider whether there was a sufficient connection between the lift provided by CD and the work to hold the employer liable.

Key Action Points for Human Resources and In-house Counsel

Since October 2024, employers have been subject to a proactive duty to take reasonable steps to prevent sexual harassment. Provisions in the Employment Rights Bill that are expected to come into force from October 2026 will add to this by making employers liable for harassment by third parties and require employers to take ‘all reasonable steps’ to prevent sexual harassment.

To address this, employers should consider taking steps such as:

• updating policies and procedures
• regularly training staff on inclusive workplace culture and specifically on the prevention of sexual harassment
• carrying out a risk assessment and addressing the circumstances which might give rise to harassment by staff or third parties
• requiring third parties to adhere to codes of appropriate behaviour where possible

Clyde & Co provides investigations training and also inclusive workplace e-training for staff covering all types of bullying and harassment, click here to learn more.

Be aware the EHRC is taking a more active role in intervening where it considers employers have failed to take reasonable steps to prevent sexual harassment in the workplace so make sure you are training staff on workplace behavioural expectations and taking other preventative steps. Read more on how we can help.

AB v Grafters Group Ltd ta CSA Catering Services International