An employer may be vicariously liable for sexual harassment outside the workplace: Key Lessons from AB v Grafters Group Ltd
The Employment Appeal Tribunal (EAT) has recently handed down a significant judgement in AB v Grafters Group Ltd [2025] EAT 126. This follows the new statutory duty to prevent workplace sexual harassment which came into effect in October 2024. The case provides a timely reminder of the breadth of employer liability for sexual harassment under the Equality Act 2010, and, what it means for misconduct to occur “in the course of employment.”
The facts of the case
AB was employed by a hospitality staffing agency. Believing she was booked to work at a racecourse, she attended the company’s office expecting transport to the venue. After missing her lift, a colleague (CD) offered to drive her. Earlier that day, CD had sent AB sexually suggestive WhatsApp messages while working a night shift.
During the journey, AB’s shift was cancelled. AB requested to be dropped off at the bus stop, but instead, CD drove her to a remote location where she was subjected to serious sexual harassment, including inappropriate touching and showing her explicit material. AB reported the incident to the police, but no charges ensued. Importantly, the employer did not investigate the matter nor offer support.
AB brought a claim against her employer for sexual harassment under the Equality Act 2010. The employment tribunal acknowledged that harassment had taken place but dismissed the claim, ruling that CD was not acting ‘in the course of employment’, a prerequisite for employer liability. AB appealed.
The Employment Appeal Tribunal’s decision
The EAT overturned the tribunal’s decision, concluding that the wrong legal test had been applied. The tribunal had focused on whether CD’s actions were work-motivated and whether the lift had been formally arranged. The EAT clarified that the correct approach is to consider all relevant circumstances and apply a broad interpretation of “in the course of employment.”
Key factors included: CD’s earlier messages sent during his shift; the harassment occurring during a journey connected to work, even though the shift was later cancelled; and informal transport arrangements being common in the business.
The EAT stressed that harassment is not confined to the workplace or to regular working hours. Even if an arrangement is not officially organised by the employer, it may still fall within the scope of employment if it forms part of a broader work-related pattern (e.g. work socials and off site meetings).
Implications for schools
This case highlights that employer liability is not confined to the workplace or scheduled shifts. With the Employment Rights Bill set to strengthen the duty to take “reasonable steps” to prevent harassment, schools should act now.
Practical steps to consider:
- Review policies and procedures and update if appropriate
Make clear that harassment will not be tolerated in any work-related context, including off-site events and informal arrangements between staff. - Provide comprehensive training
Ensure all staff understand what constitutes harassment and the standards expected at all times. - Implement robust reporting and investigation processes
Complaints should be taken seriously and investigated promptly, regardless of where the incident occurred. - Offer support to affected employees
Failure to provide care and assistance can increase legal and reputational risks. - Monitor informal practices
If lifts, social gatherings, or other informal arrangements are common, remind employees that professional standards apply at all times.
Beyond legal compliance, fostering a safe and respectful culture is essential. Incidents like this can cause significant harm to individuals and undermine the workplace culture / make staff feel unsafe and such incidents may also damage an employer’s reputation. Taking proactive steps now will help protect both employees and the school.
How Moore Barlow can help
Moore Barlow’s Independent Schools & Charities team can help you review and update your policies, implement effective training, and ensure your school meets its obligations under the legislation. Contact us today to discuss how we can support you.
