Tribunal entitled to find racial abuse by colleague not ‘in the course of employment’
The Employment Appeal Tribunal has upheld a tribunal’s decision that a racist comment made by one employee to another did not give rise to employer liability under the Equality Act 2010.
Background
Under the Equality Act 2010, an employer may be liable for discriminatory acts committed by its employees, provided those acts take place 'in the course of employment'. Employers may escape liability if they can show they took all reasonable steps to prevent such conduct. This is commonly referred to as the 'all reasonable steps' defence, and in practice it can be a high threshold to meet.
In the case of Campbell v Sheffield Teaching North Hospitals NHS Trust, the claimant, a Black employee and union branch secretary, alleged that he had been racially harassed by a colleague who referred to him using a racist slur during a disagreement over union subscription deductions. The incident occurred on the respondent’s premises during the working day.
The employment tribunal accepted that the remark had been made, but concluded that it did not take place in the course of the colleague’s employment. The dispute arose from a personal matter – the colleague’s voluntary union membership – and the interaction was not part of his job duties. While the claimant’s union role was part of his employment, the tribunal found that this did not automatically bring the conversation within the scope of work-related activity. It was also relevant that the comment was made during a break, not while carrying out work tasks.
Separately, the tribunal found that the respondent had taken all reasonable steps to prevent such conduct. Measures included induction sessions addressing workplace values, mandatory equality and diversity training shortly before the incident, and performance assessments covering respectful behaviour. On the evidence, the tribunal concluded that these were sufficient.
Employment Appeal Tribunal decision
The claimant appealed, arguing that the tribunal had placed undue weight on the personal nature of the exchange and had failed to properly apply the legal tests. The appeal was dismissed.
The Employment Appeal Tribunal found that the tribunal had carefully considered the full context, including the timing and location of the incident and the connection between the union dispute and the workplace. It was entitled to conclude that the conduct was not sufficiently connected to the colleague’s employment to trigger employer liability. The EAT acknowledged that a different tribunal, faced with the same facts, could reasonably have reached a different conclusion. This underlines how finely balanced these cases can be, and how critical the tribunal’s evaluative judgment is in borderline scenarios.
The EAT also upheld the finding that the respondent had taken all reasonable steps to prevent the behaviour. It noted that the tribunal had been presented with clear evidence of the respondent’s preventative measures and that no further steps were identified as missing or inadequate.
Points to consider
While the appeal was unsuccessful, the decision should not be read as indicating an easy route to avoiding liability in similar cases. Both limbs of the Equality Act test: whether the conduct was 'in the course of employment', and whether the employer took 'all reasonable steps', are highly fact-specific and can be difficult to satisfy.
In this case, the outcome on the reasonable steps defence rested on the evidence available and the issues raised before the tribunal. In other circumstances, a tribunal might be persuaded that further steps, such as more frequent training, improved reporting mechanisms, or clearer behavioural expectations, could and should have been taken. Where this is the case, the defence may not succeed.
Similarly, while the tribunal found that the conduct was not sufficiently connected to the colleague’s employment, that conclusion will not necessarily follow in all cases involving workplace conversations or disputes between colleagues. Small changes in context, for example, whether the discussion was work-related, took place on a break, or involved a person in a management or supervisory position, could lead to a different outcome.
Comment
The case is a reminder that employer liability for harassment under the Equality Act 2010 depends on careful analysis of context and evidence. Employers defending such claims should not assume that arguments around personal disputes or prior training will succeed unless they are supported by clear, specific, and credible evidence.
From a preventative perspective, it remains vital for employers to ensure that equality and diversity training is delivered regularly, that expected standards of behaviour are consistently reinforced, and that staff are confident in reporting inappropriate conduct. The stronger the culture and the clearer the evidence of preventative steps, the better placed employers will be to respond if an incident arises.