Does sexual harassment only have to take place in the course of employment for an employer to be liable for their employee’s inappropriate behaviour?
From 26 October 2024, a new statutory duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023(1) came into effect, whereby employers must take reasonable steps to prevent sexual harassment of their workers in the course of their employment. This preventative duty extends to sexual harassment carried out by third parties.
Prior to the change, there was no proactive legal obligation for employers to take steps to prevent sexual harassment at work. Now, employers must anticipate when sexual harassment may occur and take reasonable steps to prevent it. A failure to do so can make the employer vicariously liable for the harassment, extending to matters arising during work-related activities such as social events, like Christmas parties and team-building days.
For example, in Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547, a female police officer was sexually harassed by a male colleague at a pub where officers had gathered socially after the conclusion of their duties. The tribunal concluded that the social gathering was closely connected to work and that the male officer’s conduct was done in the course of employment.
In the recent case of AB v Grafters Group Ltd (t/a CSI Catering Services International) [2025], the employee AB and her colleague CD worked from the employer’s Cardiff branch. On 1 November 2021, AB incorrectly believed she was due to work at Hereford Racecourse. She was late arriving at the Cardiff office, where she thought transport had been arranged to take her to Hereford. Instead, AB was given a lift by CD, who then told her she was not required to work that day. AB requested to be taken home, but CD drove her towards a golf course near Pontypridd, where, during the drive and after stopping the car along a road, AB alleged she was subjected to sexual harassment by CD.
The Employment Appeal Tribunal (EAT) had to determine whether or not the incident happened “in the course of employment.” The EAT explained that “in the course of employment” requires consideration of whether there was a sufficient nexus or connection between the activities and work to render them as occurring in the course of employment, or whether where or when it took place constituted an extension of work and the workplace or working activities. The tribunal concluded that such a connection was in place when CD gave AB a lift, as AB had attended her workplace.
The recent EAT decision reflects that a broader range of activities undertaken in relation to work, or while attending work, could fall within “the course of employment.” However, each case will turn on its own facts. For example, in Waters v Commissioner of Police of the Metropolis [1997] ICR 1073, the Court of Appeal considered whether a sexual assault committed by a male police officer (“T”) against a female colleague at a police section house where she had a room, while both were off-duty, amounted to an act committed by T in the course of employment. The tribunal held that the conduct was not done in the course of employment, and the appeal tribunal agreed with this finding.
In light of how employment tribunals may interpret sexual harassment allegations, employers should regularly conduct risk assessments and identify scenarios where potential harassment could arise in and outside the workplace. They should review internal policies to ensure they are in line with changes in the law, encourage staff to report incidents, and provide robust training to give managers and employees a better understanding of the extended scope of workplace harassment liability, with a clear message as to the consequences of such unacceptable behaviour.
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