Employer took all reasobale steps to prevent harassment on the grounds of race

In the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond, the Employment Tribunal (ET) had to consider whether the claimant suffered harassment as a result of their race.

Check our BrAInbox for instant answers to questions like:

What is harassment?

Campbell was employed by the Trust as branch secretary of a union. During a discussion between Campbell and Hammond regarding a union subscription, Hammond became angry and repeatedly called Campbell a “f**king muppet” and a “f**king monkey”.

Only a few days before this incident, Hammond attended mandatory training provided by the Trust on diversity and equality. Campbell is black and Hammond is white. Campbell brought a claim against the Trust alleging that they had been harassed on grounds of race by Hammond and that the Trust was liable for that.

The ET found that while the remarks had been made, that they were not said “in the course of” Hammond’s employment as required under the Equality Act 2010. The ET accepted the incident took place during the working day (albeit during a break) and happened on the employer’s premises. However, they held that the remarks were not in the course of employment because Hammond didn’t have to be a member of the union to be employed, and the discussion during which the remarks were made related to a personal dispute Hammond had with the union as an individual.

The ET also found that the Trust had taken all reasonable steps to prevent the remark or anything of that nature. This included:

• Induction sessions at which the issue of “acceptable behaviour at work” and the Trust’s core values were emphasised
• Annual performance assessments which covered whether they were acting in accordance with the values
• The display of the values on posters in the workplace
• Mandatory training on equality and diversity issues

The claimant appealed based on two grounds. First, it was argued that the conversation had taken place at work and therefore, it was in the course of employment. The ET, it was said, had focused solely on what was said rather than looking at the matter as a whole.

The Employment Appeal Tribunal (EAT) rejected this, finding that the ET had not based its decision on just what was said but balanced the factors for and against the argument that the comment was made in the course of employment.

Second, it was argued that the ET had only asked itself what steps the employer had taken but failed to ask itself whether there were any further preventative steps that could have been taken that were reasonably practicable.

This, the EAT found, was moot, as the first ground had already been rejected and therefore it was not necessary to look at the defence. However, they found that the ET had properly addressed the statutory defence of “all reasonable steps” when it found as fact that Hammond had been provided with mandatory diversity and equality training only days before the incident.

This case sets out specific examples of the reasonable steps employers can take to prevent harassment on grounds of race and as an EAT judgement which is binding on the lower courts, gives a strong indication of what an ET will consider in similar cases. The steps taken by the employer here were comprehensive and its message on equality and diversity was regularly reinforced to ensure its workforce remained familiar with it and these were key factors in its success in this case.

Learn more with your GLU E-learning course:

Getting A Grip On Harassment