Employment Tribunal ruled to have considered irrelevant factors in dismissing hospitality worker’s sexual harassment claimed

About this case:

• Citation:
  [2025] EAT 126
• Judgment:
  External link
• Court:
  Employment Tribunal
• Judge:
  His Honour Judge James Tayler

Claimant AB was employed by Grafters Group Ltd, trading as CSI Catering Services International, to work in temporary hospitality roles across the UK. She argued that the ET had failed to take relevant factors into account in its assessment of the conduct constituting sexual harassment, including the connections to her employment.

The appeal was considered by Judge James Tayler, with the appellant appearing in person and Sarah Davis appearing for the respondent.

Lifts between colleagues

On 1 November 2021, the claimant incorrectly believed that she was due to undertake bar work at Hereford Racecourse and attended the respondent’s Cardiff office where she believed transport had been arranged. Instead, she was given a lift by a colleague, CD, who later told her she was not required to work that day. She requested to be taken home, but instead CD took her to a golf course near Pontypridd and subjected her to sexual harassment.

While the matter was reported to the police and CD was interviewed under caution, ultimately no criminal charges resulted from his conduct. After finding that CD had sexually harassed the claimant, the ET directed itself as to whether he was acting in the course of employment.

The ET found that the only reason the claimant had gotten into CD’s car was because she had missed her transport, and that he had not offered her a lift because of a requirement linked to his employment. The Tribunal rejected a submission by the claimant that the respondent required or expected informal lifts between colleagues in addition to its formal system under which the driver would be paid.

On appeal, the claimant argued that the ET had failed to have regard to CD’s conduct in the hours immediately preceding the incident, where he sent the claimant sexually harassing texts while working for the respondent, and the fact that he had previously provided the claimant with lifts for work. It was not necessary for CD’s motive to be linked with the course of his employment, as the ET had asked itself. It was further asserted that the ET failed to have regard to whether what happened between CD and C occurred in circumstances that were an “extension of their employment”, in line with Chief Constable of Lincolnshire Police v Stubbs (1999).

Required broad interpretation

In his decision, Judge Tayler began by saying of the ET’s decision: “I must be slow to assume that the correct self-direction was not applied by the Employment Tribunal to the facts that it found. A careful reading of the judgment as a whole is required; avoiding being hypercritical, focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round or being guilty of pernickety critiques. But my reading should not be so generous as to read matters into the judgment that are not there if I conclude that this is one of those rare occasions on which a correct self-direction of law was stated by the tribunal, but then overlooked or misapplied at the point of decision.”

He continued: “The Employment Tribunal had to consider whether CD was acting in the course of his employment. I do not consider that is a simple analysis. The guidance that the words should be used in ‘the sense in which every layman would understand them’ is perhaps somewhat Delphic, I doubt that laypeople spend a great deal of time considering the concept of whether a person is acting in the course of employment.”

Asking whether the ET had considered the appropriate factors, Judge Tayler said: “I do not consider that it was relevant that CD’s motive was in offering a lift not because of a requirement linked to his employment. It is implicit in the decision 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 the claimant. The fact that a person’s motivation is having an opportunity to harass does not mean that the person is not in the course of employment. Otherwise the protection would be excessively watered down which would be inconsistent with the required broad interpretation of anti-discrimination legislation.”

He concluded: “The Employment Tribunal was entitled to conclude that the claimant’s belief that ‘she was at all times acting in the course of her employment’ was not relevant to the question of whether the impugned act was done at work or outside of work in the sense of whether CD was at work, carrying out work activities in working hours. However, if CD persuaded, or took advantage of the fact that the claimant thought, that she was due to work at Hereford and that CD was offering her a lift as part of his work duties, that was potentially relevant to the question of whether the provision of the lift had a sufficient nexus or connection with work such as to render it in the course of employment and/or that it constituted an extension of work and the workplace or working activities.”

The EAT therefore allowed the appeal and remitted the application to the same Employment Tribunal for further consideration.