‘The course of employment’- where does work end and personal life begin…

As is frequently seen in discrimination cases asserted by Claimants before the Employment Tribunal, an employer can be held vicariously liable for the wrongdoing of their employees which is committed during the ‘course of’ that employee’s employment, even if the employer has no direct knowledge of, and has not approved of, the conduct in question.  As such, it is important to have clarity on when an employee is acting in the ‘course of their employment’ and when they are not.

The starting point is that ‘in the course of employment’ should be interpreted in accordance with the ordinary and natural meaning of the words, and will include acts done by an employee that are linked to an employee’s work, whether at the workplace or elsewhere, and whether they are authorised by the employer or not.

Whilst that sounds straightforward, in practice, it is not; where work ends and personal life begins can vary hugely depending on an employee’s work and lifestyle and where colleagues socialise out of work, the line can become quickly confused.

The recent case of AB v Grafters Group [2025] considered this issue but has only served to highlight how difficult it is for employers to know where the ‘line’ will be drawn save to say that if in doubt, it is most probably within the ‘course’ of employment.

The facts of AB v Grafters Group are as follows: The Claimant (AB) was employed to work in temporary hospitality roles around the UK. The respondent is a hospitality agency (Grafters Group Ltd) and AB and a colleague (CD), worked from the Cardiff branch.

As the hospitality roles were often in different locations, colleagues frequently gave each other lifts to the relevant work locations. Typically, Grafters did not provide transport to the majority of shifts employees were booked for. It did, however, operate a system where one of the employees on that shift would drive the others, in exchange for payment. That payment was made directly by the employees to the driver, with the amount communicated to them in advance.

AB believed she was working on 1 November 2021 on the bar at Hereford Racecourse. However, she was late arriving to Grafters’ offices on 1 November which meant she missed the transport arranged to take her to Hereford. When AB arrived at the offices, CD was there, having just finished a separate shift. CD and AB were known to each other; CD had given AB a lift to a shift on a previous occasion and on the relevant morning, whilst he was at work, CD had sent text messages of a flirtatious nature to AB.

When AB explained to CD that she had arrived late and missed the transport, CD offered to give her a lift to the venue.

It was not until they had already set off that CD received a call from a colleague during which it became apparent that AB was not in fact working that day either at Hereford Racecourse or elsewhere. CD relayed that to AB who then asked CD to drop her at a bus stop.  He refused to do that and continued driving; during that drive and when CD eventually stopped the car, the sexual harassment took place. AB eventually ‘escaped’ and reported matters to the police and one of the company’s managers.

One question which came to be determined by the Employment Tribunal in AB’s subsequent claim was whether the sexual harassment took place ‘in the course of’ CD’s employment (such that the employer would be vicariously liable for it).

The initial Employment Tribunal (ET) accepted that sexual harassment had occurred but found that it was not ‘in the course of’ CD’s employment. The ET’s reasoning centred around the argument that CD was not due to work at Hereford racecourse that day nor had been required to drive there. Grafters had arranged transport that day to get the employees to Hereford, therefore the only reason that AB got into CD’s car was because she had missed the transport provided. The ET concluded that whatever CD’s motive was in offering a lift to AB, it was not because of a requirement linked to his employment. This lift was not arranged or sanctioned by Grafters, they had no knowledge of it, nor would it have been required because AB was not actually working that day. As a result, the ET found Grafters not to be vicariously liable under s109 of the Equality Act 2010.

The ET decision was appealed by AB, and the matter went on to be decided by the Employment Appeal Tribunal (EAT). The EAT found that there was sufficient connection between the work being carried out, the employment of the individual and the event that occurred. The EAT found that the ET had erred in law in failing to consider whether or not what happened between CD and AB occurred in circumstances that were an “extension of their employment.”   The EAT also found that there was a closeness in connection between CD’s job for Grafters and why AB had been in his car on the day in question. AB had previously taken lifts with CD for work purposes, and on the day in question did the same. Additionally, whether Grafters had knowledge of or sanctioned CD giving AB a lift, the EAT did not deem it relevant. An act does not need to be done with an employer’s knowledge or approval to be done in the course of employment (Section 109(3) EqA).

The EAT noted that the fact that CD created an opportunity to harass AB should not overshadow where or how it took place. The EAT flagged that CD’s motivation in offering a lift was that it would provide an opportunity to continue with the sexualised conduct that had started earlier when he sent suggestive texts to AB (during his employment). The EAT said that the fact that a person’s motivation for their conduct (in this case, the conduct being ‘offering AB a lift’) is to give them an opportunity to harass someone, does not mean that that person is not conducting themselves ‘in the course of employment’.

The EAT did accept that there must still be a “sufficient nexus or connection with work such as to render it in the course of employment.” The consideration here is whether an unauthorised wrongful act of an employee was so connected with the ‘work’; the EAT took the view that as AB thought that (i) she was due to work at Hereford and that (ii) CD offering her a lift was part of his work ‘duties’, this would render the lift to be ‘in the course of employment’ and/or that it constituted an extension of work and the workplace or working activities. Therefore, the EAT found there was a sufficient connection between where and how the assault took place and the employer.

It was recognised by the EAT that each case will very much depend on its own particular facts and each instance of any questionable conduct is a separate question of fact for an Employment Tribunal to determine in the context of all relevant circumstances.

The EAT noted that it was not possible (or even desirable) to set any hard and fast guidance of when conduct is and is not in the course of employment. The EAT explained that there is ‘no clear boundary’ but that the words ‘in the course of employment’ should have a meaning that:

• ‘every layman’ would, in reality, be able to understand and;
• that the outcome ensures that the protections set out in the Equality Act 2010 are achieved.

As such, the EAT’s decision has reinforced a very broad interpretation of the question of ‘course of employment’.

It is difficult for employers to know how to address this lack of clarity where work ends, and the personal starts when it comes to the conduct of employees.   It seems that the connection to work does not have to be strong and that all the circumstances will be relevant including, as in this case, the victim’s mistaken belief that they were working which is what lead her to get into the car with her colleague.

Take for example, a company’s Christmas party for staff; if that events finishes but some employees go to another venue, at their own expense, to continue the festivities, would conduct that occurred during the course of that ‘extended’ part of the evening, be conduct for which the employer may be vicariously liable?  On the face of it, quite possibly.

What could Grafters have done in this position?

There are perhaps some adjustments Grafters could have made which might have prevented the finding of vicarious liability.

For example, had a detailed risk assessment been undertaken on the process implemented for employees sharing lifts to and from shifts, it may well have identified the need for a formal written process and some reporting requirement to the business of who is travelling with whom on what day and time etc which may have shifted the perceptions of AB that the lift being offered was offered by CD as part of his duties.

Further, a risk assessment may have identified a need to discourage employees from adopting a ‘casual’ approach to taking lifts with colleagues to shifts as well as identifying other protections that should be implemented such as a requirement for any lift sharing to have a minimum of 3 colleagues in the car and/or that any lift sharing was the subject of prior approval by the relevant manager and that if those safeguards are not in place, the employee should contact their line manager to seek advice on how to travel to the relevant venue.  This is of course, all with the benefit of hindsight and there will inevitably be circumstances which were not foreseen and yet which are determined to be in the ‘course’ of employment; in such circumstances, risk assessments and the implementation of foreseeable safeguards, together with regular meaningful training on the prevention of sexual harassment would afford the company a line of defence to any subsequent claim.

What should employers do?

Employers are in a difficult position when the workplace can extend to areas far beyond their control. In many instances it will be difficult to see how an employer could disassociate itself from arguments that something was ‘in the course of employment’ but undertaking thorough risk assessments and training are likely to highlight areas of weakness in any internal system that could be addressed with clearer policies or processes which should then be addressed, some examples of which may be:

• encourage staff to report immediately any unwanted conduct (such as flirtatious private messages);
• tailor training to the needs of the particular business;
• ensure employees know how to easily and quickly report incidents and create an environment free of retaliation;
• highlight to senior staff the possible impact of any power imbalance which may distort someone’s behaviour in the eyes of others.

Should you have any questions on this blog please contact Linky Trott or any other member of the Employment team.