What does “in the course of employment” mean?

In AB v Grafters Group Ltd [2025] EAT 126, the EAT gave useful guidance on the meaning of “in the course of employment” for the purposes of s109 of the Equality Act 2010.

The claimant and a colleague, CD, worked for a hospitality recruitment agency. The claimant incorrectly believed she was due to work on a client site: she had been booked on a shift which was later cancelled, without her being made aware. The claimant missed transport to the site arranged by the respondent, and instead accepted a lift offered by CD, who was not working. During the journey, CD was told by a colleague that the claimant was not required to work, and relayed this to the claimant.  The claimant asked to be dropped at a bus stop, but CD drove her elsewhere. The Tribunal held that CD had subjected the claimant to sexual harassment during the car journey, before she was able to escape.

The Tribunal concluded that the respondent was not liable for CD’s harassment of the claimant, finding that the respondent could rely upon the defence under s109 that CD’s actions were not done “in the course of employment”.

The EAT provided a helpful overview of the relevant authorities, and held that the Tribunal had erred in law:

1. CD’s motivation for offering the lift was irrelevant: “The fact that a person’s motivation is having an opportunity to harass does not mean that the person is not acting in the course of employment”.
2. The Tribunal should not have limited its consideration to whether the harassment had occurred outside of work.

• The Tribunal should have also considered whether there was “nevertheless a sufficient nexus or connection with work such as to render it in the course of employment”, including whether the provision of the lift was an “extension of work and the workplace” (following Forbes v LHR Airport Ltd [2019] ICR 1558 and Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547).

The case was remitted for reconsideration by the same Tribunal.

Key point: employers may be liable for harassment which occurs outside their premises, even when neither employee is working and the arrangement has not been sanctioned by the employer, and regardless of the motivations of the harasser.