Reasonable steps to be applied by employers to prevent discrimination
In the case of Mr John J Campbell v Sheffield Teaching Hospitals NHS Foundation Trust and Mr Wesley Hammond, the employment appeal tribunal (EAT) considered allegations of racial harassment in the workplace and examined the applicability of employer liability under the Equality Act 2010.
Background
Mr Campbell was employed by the Sheffield Teaching North Hospitals NHS Foundation Trust (the trust) and served as a full-time branch secretary for the union UNISON. In his role, he engaged with employees regarding union-related matters. Mr Hammond, also an employee of the trust and a former union member, wanted to discontinue his union membership and stop the deduction of union subscriptions from his wages. In October 2020, during a discussion about the continuation of union subscription deductions, Mr Hammond became agitated and directed a remark at Mr Campbell that was deemed capable of constituting racist abuse.
Employment tribunal (ET) proceedings
Mr Campbell submitted a claim in March 2021, alleging racial harassment by Mr Hammond and claiming that the trust was vicariously liable under section 109(1) of the Equality Act 2010. The ET convened in September 2022, to deliberate on the matter.
‘In the course of’ employment
The ET acknowledged that Mr Hammond’s remark was inappropriate and offensive. However, it concluded that the comment was not made ‘in the course of’ Mr Hammond’s employment, a critical criterion for establishing employer liability under section 109(1).
All reasonable steps
The ET also determined that the trust had taken all reasonable steps to prevent such behaviour, therefore satisfying the defence outlined in section 109(4) of the Equality Act 2010. The steps taken in relation to Mr Hammond were:
- An induction session where the trust’s core values relating to dignity and trust were emphasised (‘the PROUD values’).
- Annual performance assessment, which covered the PROUD values.
- Display of PROUD values on posters in areas where Mr Hammond works.
- Mandatory training on equality and diversity issues every three years. This had recently been completed by Mr Hammond.
Outcome
Consequently, the ET dismissed Mr Campbell’s claims against both Mr Hammond and the trust.
EAT proceedings
Mr Campbell appealed the ET’s decision, claiming that:
- The ET erred in its application of section 109(1) by focusing solely on the content of the remark rather than considering the entire context of the incident.
- The ET misapplied section 109(4) by failing to address the second of the two questions established by case law.
EAT findings
The EAT upheld the original ET’s decision, concluding the following:
- Application of section 109(1): The EAT found that the ET did not base its decision solely on the content of Mr Hammond’s remark but had considered the entire context of the incident, looking at factors both supporting and opposing the notion that the comment was made ‘in the course of’ employment. The EAT emphasised that the weight assigned to these factors falls within the ET’s discretion.
- Application of section 109(4): The EAT concluded that the ET had correctly applied the defence under section 109(4). It considered that the trust had implemented all reasonable steps to prevent discriminatory behaviour and, therefore, there was no vicarious liability for Mr Hammond’s actions.
Implications for employers
Defining ‘in the course of’ employment
The case highlights the importance of context when determining whether an employee’s actions occur ‘in the course of’ their employment. Employers should be aware that not all interactions between employees may fall under this definition, impacting the applicability of vicarious liability.
Implementing preventative measures
The successful defence under section 109(4) highlights the necessity for employers to take proactive steps to prevent discrimination and harassment. Employers should ensure the establishment and enforcement of comprehensive policies, conduct regular training sessions and create an environment where discriminatory behaviour is neither tolerated nor ignored.
Handling union-related interactions
Given that the incident arose from a union-related discussion, employers should exercise caution in managing interactions involving union matters. Clear guidelines and communication channels can help mitigate potential conflicts and ensure that such discussions remain professional and respectful.
Conclusions
In summary, the case stresses the critical role of context in assessing employer liability for employee actions and underlines the importance of implementing and maintaining robust anti-discrimination policies, processes and training.
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