AB v Grafters Group
AB v Grafters Group [2025] EAT 126
Facts
The appellant, AB, was employed by the respondent, Grafters Group Ltd (t/a CSI Catering Services International), a Hospitality Recruitment Agency, working from its Cardiff Branch. On 1 November 2021, AB genuinely believed she was scheduled to work at Hereford Racecourse and, having arrived late, missed the arranged transport. A colleague, CD, offered her a lift to Hereford. CD had been exchanging sexually suggestive WhatsApp messages with AB in the early hours of that day, while he was working a shift for the respondent at Amazon's premises in Bristol. CD also believed AB was due to work at Hereford. Shortly after the journey began, CD received a call from a colleague informing him that AB's shift was cancelled, which he then relayed to her. Despite AB asking to be dropped off at a bus stop, CD refused and instead drove her towards a golf course near Pontypridd, where he subjected her to sexual harassment, including unwanted physical touching, showing her a pornographic video, and inappropriate comments. CD later admitted to the police that he had put his finger in her ear as a practical joke, but denied sexual assault. AB reported the incident to the police, but the respondent did not investigate CD or provide support to AB.
Held
The Employment Tribunal (ET) found that CD had sexually harassed AB. However, the ET concluded that CD was not acting in the course of his employment from approximately 06:00 onwards on 1 November 2021. The ET's reasoning for this conclusion included that CD was not scheduled to work at Hereford, was not required by the respondent to drive AB, had only recently finished another shift, and there was no evidence of his being booked for the racecourse. The ET noted that the respondent had already arranged transport for employees to Hereford, which AB had missed, and it did not accept that the respondent required or expected informal lifts between colleagues, pointing to formal arrangements for drivers in other instances. The ET determined that CD's motive in offering a lift was not linked to his employment, and the lift was not arranged or sanctioned by the respondent, who did not know of it. The ET also held that AB's belief that she was acting in the course of her employment was irrelevant to the objective determination of whether CD was acting in the course of his employment. Consequently, the ET dismissed AB's claim for sexual harassment against the respondent.
Comment
The Employment Appeal Tribunal (EAT) found that the ET had erred in law and upheld the appeal on all grounds. The EAT criticised the ET for failing to adequately consider whether CD's sexual harassment occurred in circumstances that constituted an "extension of their employment," a concept derived from relevant case law. Specifically, the EAT noted that the ET had made findings of fact regarding CD sending sexually harassing texts to AB while he was working and believed she was due to work, and his previous act of driving her to a job. However, the ET failed to incorporate these material factors into its analysis of whether the conduct in the car should be viewed as part of a course of conduct and whether there was a sufficient nexus or connection with work or an "extension of work and the workplace".
Furthermore, the EAT deemed the ET's consideration of CD's "motive" in offering the lift to be an irrelevant factor. The EAT emphasised that an individual's motivation to harass does not preclude their actions from being in the course of employment, which would otherwise "excessively water down" anti-discrimination protections. While the employer's knowledge or approval of the sexual harassment itself is irrelevant under section 109(3) of the Equality Act 2010, the EAT clarified that the employer's knowledge or approval of the broader event (such as an organised social gathering) could be relevant to whether the alleged harasser was acting in the course of employment. The EAT acknowledged that AB's belief about being at work was not directly applicable to whether CD was performing work duties. Still, it highlighted that if CD exploited or capitalised on AB's belief that she was going to work and that his lift was a work-related duty, this would be potentially relevant to establishing a sufficient connection to work or an "extension of work". Given these errors, the EAT remitted the case to the same Employment Tribunal to re-evaluate the question of "course of employment" based on its existing factual findings and the correct application of the legal principles.
