Decision:
The Employment Appeal Tribunal (EAT) upheld a tribunal’s decision that an employer was not liable for an employee’s racially harassing comment because it was not made in the course of employment, and the employer had taken all reasonable steps to prevent it.
Facts:
The Case involves a dispute between Mr Campbell, a Trust employee and Branch Secretary of UNISON, and Mr Hammond, also a Trust employee. Mr Hammond had sought to terminate his membership of UNISON, but subscriptions were still being deducted. During a break from his work, he visited Mr Campbell’s office and asked for a refund, but Mr Campbell refused.
Judgement:
The EAT found that the Tribunal had correctly taken the entirety of the context into account when considering whether Mr Hammond was acting in the course of employment.
The Tribunal had noted that there were several connections between the incident and Mr Hammond’s employment by the Trust: it took place during his working day, in an office close to his area of work, and it was related to his union membership. However, the Tribunal also noted that Mr Hammond’s membership of UNISON was a personal choice and the conversation that took place was related to a personal dispute with UNISON.
The EAT also upheld the Tribunal’s finding that the trust has taken all reasonable steps to prevent harassment for the purposes of Section 109(4) of the Equality Act 2010.
Upon joining the Trust, Mr Hammond attended an induction session which emphasised the Trust’s core values. He then underwent annual performance assessments which considered whether he had acted in accordance with those values. The values were displayed on posters around the office and a few weeks before the incident he undertook mandatory equality and diversity training. The Tribunal concluded that the Trust had taken all reasonable steps.
Implications:
This highlights just how important it is for employers to instil, promote and uphold values in the workplace. In this case, the employer avoided liability for an employee’s racist remarks because it had taken all reasonable steps to prevent such an incident occurring. To escape similar liability, employers should ensure that they hold regular inclusion and diversity training sessions and regularly assess standards of conduct in the workplace. The more proactive an employer is in this regard, the more likely it is that they will be found to have taken all reasonable preventative steps.
