Employment Law Cases

Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond

An NHS Trust had taken ‘all reasonable steps’ to prevent a black employee from being racially abused.

The Equality Act 2020 provides that an employer is liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment (s. 109(1)). However, an employer has a defence where it can show that it took all reasonable steps to prevent its employees from doing any of these things (s. 109(4)).

Background

Mr Campbell, a black man, worked for the NHS Trust as Branch Secretary for UNISON. A Mr Hammond, a white man, also worked for the trust and decided that he wanted to leave the union. Mr Hammond had spoken to HR about membership subscriptions and was told he needed to speak to the union directly. He spoke to Mr Campbell, asking if the deductions could be refunded and was told this wouldn’t be possible. At a second meeting, Mr Hammond became angry and repeatedly called Mr Campbell a ‘f**king muppet’ and then began calling him a ‘f**king monkey’.

The tribunal found that the remark had been made but held on the evidence that it had not been made ‘in the course of’ Mr Hammond’s employment. It also found that, in terms of s. 109(4), the Trust had taken all reasonable steps to prevent Mr Hammond from making the remark or from doing anything of that description.

Mr Campbell appealed, arguing that as the conversation had taken place at work, there was a natural link between union membership and the workplace and that the Trust should have done more to prevent the situation from happening.

EAT decision

The appeal was dismissed.

First, the tribunal had reasonably concluded that the comment was not made ‘in the course of employment’. Although it had been made on the Trust's premises during working hours, the conversation had been between a union official and a union member about union membership. This finding, in itself, meant that the appeal had to fail but the EAT went on to consider the s. 109(4) defence.

The EAT did not find Mr Campbell’s arguments on this ground persuasive. The NHS Trust had taken the following steps to prevent the discrimination occurring:

• an induction session at which the issue of ‘acceptable behaviour at work’ and the Trust’s core values of ‘affording dignity, trust and respect to everyone’ were emphasised
• annual performance assessment of Mr Hammond including consideration of compliance with the Trust’s values
• display of the Trust’s values on posters in areas where Mr Hammond worked, and
• mandatory training of Mr Hammond on equality and diversity issues every three years, most recently only days before the incident, when training was conducted in small groups and involved Mr Hammond going through a PowerPoint presentation. The presentation referred to the promotion of ‘a positive attitude towards equality and diversity by showing respect for others, valuing people's differences and treating people with dignity’

Comment

The significance of this judgment relates to the soon-to-be expanded duty to prevent sexual harassment under the Employment Rights Bill.

The Worker Protection (Amendment to the Equality Act 2010) Act 2023, in force from October 2024, obliges employers to take ‘reasonable steps’ to prevent sexual harassment in the workplace. Originally this referred to ‘all reasonable steps’, but the word ‘all’ was dropped before the Act was passed into law. The Employment Rights Bill will re-insert the word ‘all’ – mirroring the existing s. 109(4) defence. The Bill will also will make employers explicitly liable for permitting a third party to harass an employee, if such harassment happens in the course of employment and the employer did not take all reasonably practicable steps to prevent this. 

While regulations will expand on what ‘all reasonable steps’ actually means, employers can take confidence that if they take the sensible steps which this NHS Trust did, ensure they’ve assessed the potential harassment risks in the workplace, and take proactive steps, they should avoid liability for discrimination carried out by their employees.

In response to the growing trend to roll back DEI policies, originating in the US following the election of Donald Trump, the Chair of the Employment Lawyers Association, Caspar Glyn KC, has warned that UK businesses ‘will increase the risk of adverse findings of discrimination’. In a statement, he said that reasons to maintain existing DEI policies include, amongst others, that:

• DEI programmes are more likely to ensure that neutral rules do not have unintended disproportionate outcomes for employees with protected characteristics, reducing the risk of indirect discrimination.
• There are positive duties for employers to take reasonable steps to prevent third-party sexual harassment under s. 40 and 40A of the Equality Act 2010. An employer without DEI policies will be unlikely to be able to demonstrate that they had taken all reasonable steps.
• Section 109 of the Equality Act 2010 provides a defence to an employer for the discriminatory acts of an employee. A difficult defence that without DEI policies and training, would be hopeless.
• The EHRC Codes of Practice recommend training on DEI initiatives. Tribunals deciding employment claims in GB must consider the code. When a tribunal is considering a direct discrimination claim then the presence or absence of DEI training and policies is relevant to a tribunal’s conclusion as to whether an employer has acted in a discriminatory way.