…In the course of one’s employment …

What are you doing this evening?

I wrote an article for my business website called, “In the course of one’s employment,” following a recent appeal case. It is too long for a blog, but here is an extract.

s.109(1) and (3) of the Equality Act 2010 state, ‘Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer,’ and, ‘It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval,’ respectively.

The words, ‘in the course of one’s employment,’ seem easy enough to understand. But those six words are not always easy to apply. If one was employed as a lawyer, drafting, advising and appearing in court would be deemed to be in the course of one’s employment. I think we can all agree on that. What is the position, however, regarding one’s behaviour at an office party that neither involves any of the work hitherto mentioned nor in one’s job description? Can one’s behaviour be deemed to be in the course of one’s employment? Let’s extend it further. What is the position regarding one’s behaviour when being out with one’s colleagues at a local (to the office) wine bar? Can one’s behaviour still be deemed to be in the course of one’s employment? Ok. Let’s extend it evenfurther. What about one’s behaviour whilst sharing a taxi after their evening out at the local wine bar? Can one’s behaviour still still be deemed to be in the course of one’s employment? I am going to take the easy way out and not seek to answer these, but to say that they are all questions to be determine as matters of fact, applying the correct law?

In a recent case, AB v Grafters Group Ltd (t/a CSI Catering Services International), ‘The respondent is a Hospitality Recruitment Agency. The claimant, and a colleague CD, worked from the Cardiff Branch of the Respondent. On 1 November 2021, the claimant incorrectly believed that she was due to work at Hereford Racecourse. She was late arriving at the respondent’s office in Cardiff, where she thought transport had been arranged to take her to Hereford. Instead, the claimant was given a lift by CD, who then told her she was not required to work that day. The claimant requested to be taken home, but instead CD drove her to a golf course near Pontypridd where the Employment Tribunal held that he subjected her to sexual harassment.’ Having directed itself correctly on the law, including, amongst others, the case of Jones, the employment tribunal found that CD did subject the Claimant to sexual harassment. However, on the question of whether the Respondent was liable for such actions because the sexual harassment occurred “in the course” of CD’s employment, it found that CD was not acting in the course of his employment from around 06:00 onwards on 1 November 2021 and, therefore, dismissed the complaint of sexual harassment against the Respondent. The Claimant appeal to the EAT. Allowing the appeal, thew EAT held, amongst other things, “Having concluded that the impugned act was done outside of work the Employment Tribunal then needed to go on to consider 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.”

Employers beware. Training your workers regularly and thoroughly in anti-discriminatory, harassment and bullying behaviour is imperative. Prevention is better than liability!

Copyright © Ryan Clement 2025