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Employer vicarious liability | When is harassment ‘in the course of employment’?
Written on 24 September 2025
As an employer, you can be held vicariously liable for the discriminatory actions of your staff. But how far does liability stretch? Does it only cover what happens during working hours and on work premises, or could a business still be responsible for misconduct that occurs elsewhere?
In this expert guide to vicarious liability in employment, discover how to protect your business and ensure your employees’ conduct doesn’t breach UK laws. Need a faster answer? You can request instant Employment Law and HR support from our UK team of experts.
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What does vicarious liability for employers mean?
In UK employment law, a vicariously liable employer is one who can be held legally responsible for the wrongful acts of their staff. This principle, known as vicarious liability, means that if an employee commits discrimination, harassment or victimisation in connection with their job, the business may face the consequences.
The rationale is you (the employer) are in a position of control and are expected to take reasonable steps to prevent unlawful behaviour. As such, vicarious liability employment law encourages you to put in place clear policies, provide effective training, and create a safe working culture.
When is an employer not vicariously liable?
You’re generally not liable when an employee acts completely outside the scope of their employment. In other words, when the conduct cannot reasonably be linked to their role, responsibility lies solely with the individual.
So, when is an employer vicariously liable? The key test under Section 109 of the Equality Act 2010 is whether the behaviour took place “in the course of employment”. Importantly, courts have interpreted this phrase broadly. It does not just mean during contracted hours or within the office walls. Conduct at work-related social events, on business trips, or in other situations connected to employment may still fall within scope.
This is why you can’t assume out-of-hours, or off-site, incidents are “private” and beyond their responsibility.
AB v Grafters Group Ltd: The facts
The claimant, AB, worked for Grafters Group, a hospitality staffing agency. When she missed the arranged transport to work, she accepted a lift from a male colleague. During that car journey, her colleague sexually harassed her.
The Employment Tribunal accepted that harassment had occurred but dismissed her claim against the employer. The reasoning was that the colleague had not acted “in the course of employment”. There had been no requirement or expectation that he provide AB with a lift, and Grafters Group had not sanctioned or even been aware of the arrangement.
The appeal
AB appealed, and the case reached the Employment Appeal Tribunal (EAT).
The EAT found that the Tribunal had erred by taking too narrow a view of what counts as “in the course of employment”. In particular, it had failed to consider the principle established in Chief Constable of Lincolnshire Police v Stubbs (1999), which recognised that work-related events outside normal working hours – like drinks after work – can still amount to an extension of employment.
The key point in the judgment is that the phrase “in the course of employment” must be interpreted broadly, and Tribunals should focus on the connection between the employee’s actions and their employment, not just the physical location or timing of the act.
Why the lift was an “extension of employment”
In this particular case, the EAT held that the car journey was not simply a private arrangement but could reasonably be seen as an extension of AB and her colleague’s employment. Both were travelling in connection with work – they would not have been in the car together otherwise.
What’s more, the colleague had previously sent sexually harassing text messages to AB while on duty for Grafters, further linking his behaviour to the workplace context.
On that basis, the EAT allowed the appeal and sent the case back to the Tribunal to be reconsidered in light of the correct legal test.
Key takeaways
- Liability under the Equality Act can extend beyond the workplace and outside normal hours.
- Tribunals will focus on the connection between conduct and employment, not just time and place.
- Employers cannot rely on “out of hours” or “off-site” arguments as a defence.
How to prevent the vicarious liability of an employer
- Review and update policies so they cover all work-related contexts (travel, socials, online).
- Train staff to understand boundaries and the risks of misconduct outside the office.
- Encourage reporting and make processes clear and accessible.
- Investigate thoroughly wherever incidents occur.
- Consider risk management where off-site work or travel is routine.
Build a safer workplace with new management policies and training
Whether you’re facing allegations and unsure how to respond, or want to take proactive steps to prevent harassment through policies, training and risk assessments, our Employment Law and HR experts can help.
Our support ensures your business stays compliant and protected, and provides the practical guidance you need to tackle harassment effectively – wherever it occurs.
Get in touch with our team on 0345 226 8393 or request your free consultation using the button below.
