AB v Grafters — why employers can’t ignore off-site harassment

The case of AB v Grafters Group Ltd has recently put sexual harassment at work under the spotlight, highlighting just how far workplace responsibility can extend. 

With the Employment Rights Bill (ERB) set to raise employer obligations even further, how people treat each other at work has never been more important. Every interaction — whether in the workplace, online or even outside working hours — can have significant consequences for both individuals and organisations. 

Here, Lee Jefcott and Will Hardwick break down the case and explore some key lessons for employers.

AB v Grafters — the facts 

The Claimant was employed by a hospitality recruitment agency. She believed that she was scheduled to work but missed her arranged transport to the venue. Another employee noticed this through the WhatsApp work group chat and offered to give her a lift. 

It later emerged that the Claimant was mistaken and wasn’t due to work that day. Instead of taking her home as requested, the employee drove her to a golf course and subjected her to sexual harassment including unwanted physical touching, showing her a pornographic video and making inappropriate comments.

The Claimant called a manager to report the incident who told her to contact the Police — which she’d already done. The employee was arrested and interviewed under caution but later released without charge. The employer didn’t carry out an internal investigation.

The legal context

Employers can be held liable for acts of discrimination and harassment carried out by employees ‘in the course of employment’ — but what does that actually mean in practice?

Tribunals have previously recognised that ‘the course of employment’ can extend beyond the workplace and outside of official working hours. This includes if an incident takes place at a work-organised event or via a work-related communication channel.

In these circumstances, tribunals will consider whether the:

• Incident involved colleagues brought together by work.
• Employer organised or benefited from the activity.
• Conduct was enabled or facilitated by the working relationship. 

What did the tribunal decide?

In this case, the tribunal found that the incident had taken place outside of working hours at a time when the Claimant wasn’t due on shift. The employee hadn’t driven her to work and she’d asked to be driven home, so the tribunal concluded that the incident hadn’t occurred ‘in the course of employment’.

On appeal, it was found that the tribunal’s analysis had been lacking. It hadn’t properly considered whether there was a sufficient connection to work — including whether the employee’s conduct was an extension of the workplace. In particular, the tribunal should’ve examined the colleague's actions in the hours leading up to the incident when he’d sent the Claimant sexual messages during his shift for the employer. Whether this behaviour formed part of a course of conduct that culminated in the sexual harassment should’ve been taken into account when making a decision. 

The tribunal should’ve also considered why the Claimant was in the employee’s car in the first place — including the fact that he’d previously driven her to a job for the employer.

This decision shows how broadly the requirement of ‘in the course of employment’ can be interpreted. Interactions not formally organised by the employer (or even known to them) may still fall within the scope of employment if the course of conduct is connected to work.

What’s coming next for employers

The ERB will strengthen similar claims by placing even greater obligations on employers to take proactive steps to prevent harassment and discrimination. This will extend to third parties like agency staff, contractors, customers, suppliers and the general public. 

How people treat each other at work has become a business-critical issue with large employers like McDonald’s facing brand damage and public embarrassment when things go wrong. Organisations are expected to be proactive, transparent and accountable in fostering a culture of respect and inclusion. Those that fail to do so risk reputational harm, legal action and loss of talent.

Important takeaways

The ERB will raise the bar for workplace standards.

Employers should focus on the following priorities:

• Ensure that all staff are aware that harassment on or off-site isn’t tolerated.
• Take ‘all reasonable steps’ to prevent and address harassment including conducting internal investigations into alleged conduct.
• Ensure that staff are trained, know how to report concerns and that all complaints are properly investigated regardless of whether the incident happened on or off-site. Policies and procedures alone aren’t enough.
• Review your training, reporting mechanisms and investigation procedures. Make sure that your culture supports speaking up and that managers know their responsibilities.
• Carry out a risk assessment and establish which areas of the business are susceptible to risk and what measures should be put in place to manage it.

Talk to us

Our award‑winning employment team is one of the largest and most specialised in the North, trusted by household names across both the public and private sectors — including leading leisure and hospitality businesses.

If you’d like to discuss the issues raised here or explore how the ERB could impact your organisation, our team can provide tailored guidance to protect your business, people and reputation.

Talk to us by giving us a call on 0333 004 4488, sending us an email at hello@brabners.com or completing our contact form below.