Background
In this case, a woman (referred to as AB) brought a claim of sexual harassment against her former employer, a hospitality recruitment agency. The incident occurred on 1 November 2021, when AB believed she was scheduled to work at Hereford Racecourse. She missed the arranged transport and accepted a lift from a colleague, CD, who then sexually harassed her during the journey.
AB later reported the incident to the police and stopped working for the company. She also took her case to an Employment Tribunal, arguing that the company should be held responsible for CD’s actions.
Key legal issue
The central question was whether CD’s actions were done “in the course of his employment”. Under the Equality Act 2010, an employer can be held responsible for harassment by an employee if it happens during work or in a work-related context.
Initial Tribunal decision
The Employment Tribunal agreed that CD had sexually harassed AB. However, it ruled that CD was not acting in the course of his employment at the time of the incident. Therefore, the company was not legally responsible for his actions.
The Tribunal based its decision on several factors:
- CD was not scheduled to work that day.
- The company had arranged other transport.
- The lift was informal and not organised by the employer.
- CD’s actions were personal and not part of his job duties.
AB’s appeal
AB appealed the decision, arguing that the Tribunal had:
- Failed to consider whether the situation was an “extension of employment”, similar to work-related social events.
- Ignored relevant facts, such as CD sending sexually suggestive messages while on shift and previously driving AB to work.
- Focused on irrelevant issues, like CD’s personal motives and whether the company had approved the lift.
Appeal Tribunal’s findings
The Employment Appeal Tribunal (EAT), found that the original Tribunal had made a legal error. While it correctly identified the law, it did not fully apply it to the facts.
The EAT ruled that:
- The Tribunal should have considered whether the lift and harassment were closely connected to work, even if they happened outside normal working hours.
- CD’s earlier messages and history of driving AB to work were relevant and should have been part of the analysis.
- The fact that AB believed she was going to work that day could have influenced the context of the harassment.
Outcome
The appeal was successful. The case was sent back to the same Employment Tribunal to reconsider whether CD’s actions were sufficiently connected to his employment to make the company liable.
Why this case matters
This case highlights how employers can be held responsible for harassment even if it happens outside the workplace, depending on the circumstances. It also shows the importance of Tribunals fully considering all relevant facts and applying the law correctly.
For the public, it’s a reminder that:
- Work-related harassment doesn’t always happen at work.
- Employers have a duty to protect staff from harassment, including by colleagues.
- Legal definitions like “in the course of employment” can be complex and fact-specific.
Nelsons Mock Grievance 2025
Join us on Thursday, 2 October 2025, for an insightful and interactive session focused on understanding and addressing sexual harassment in the workplace.
Through a realistic mock sexual harassment scenario, our employment law experts will walk you through best practices, common pitfalls, and practical tips to help you confidently negotiate and steer the process. You’ll also gain valuable insights into how to stay compliant with the updated (2024) legal duty on employers to take reasonable steps to prevent sexual harassment of their employees.
Further details about the event can be found here.
How can we help?
Rebecca Arnold is an Associate in our expert Employment Law team, providing advice on performance management and a wide range of contentious and non-contentious matters including discrimination claims in the tribunal.
If you require advice regarding the subject above, please do get in touch with a member of our Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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