Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond

James Howarth, Associate

The Employment Appeal Tribunal (EAT) has recently provided a judgment whereby it considered what amounted to conduct “in the course of employment” and what steps it thought amounted to an “all reasonable steps” defence to prevent harassment in the workplace.

Background

Employers are liable for acts of discrimination, harassment and victimisation carried out by employees in the course of their employment as set out in s.109(1) of the Equality Act 2010. Employers can however, successfully defend such claims where they can show that they took all reasonable steps to prevent its employees from doing such acts, as set out in s.109(4) of the Equality Act 2010.

The claimant (Mr Campbell), worked at the Sheffield Teaching Hospital NHS Foundation Trust (NHS Trust) as a branch secretary of the Trade Union, UNISON. Mr Hammond, the second respondent, was also an employee of the NHS Trust where he worked as a domestic assistant.

Mr Hammond had been a member of UNISON, however had informed the union that he intended to leave. Despite this, his membership subscriptions continued to be deducted from his wages despite several complaints by him. In October 2020, Mr Hammond, went to see the claimant, as the branch secretary of UNISON and asked that his subscriptions be refunded. The claimant told him that this would not happen and this eventually led to an argument between the two. Mr Hammond then made a racially discriminatory comment to the claimant.

In the course of employment

The first consideration by the tribunal was whether this comment occurred during the course of employment. Both were employees of the NHS Trust, and the incident occurred on the NHS Trust’s premise, in the claimant’s office, which was only a few hundred metres away from the ward in which Mr Hammond worked. It occurred during normal working hours, albeit Mr Hammond was on a lunch break when the incident occurred.

The tribunal determined despite it being an incident between employees, on the NHS’s premise, this was not “in the course of employment”. Mr Hammond’s union membership was his choice, it was not a requirement for working for the NHS Trust. The deductions from his wages were due to this membership, it was not a decision made by the NHS Trust. Given this, the tribunal considered this to be a personal dispute he had with the union about the deduction of his subscriptions, and not something that occurred as a result of his employment.

The tribunal decided that the legislative intention could not have been to hold an employer liable for the abuse that might occur in a conversation between a union official and member, no matter what and where it was said.

The EAT upheld the tribunal decision, in that the tribunal had properly considered all factors in coming to this decision, although did explain that any future decision around what was and was not in the course of employment would always be a finding of fact.

All reasonable steps defence

Despite the tribunal determining that the comments were not made in the course of employment, and as such the NHS Trust could not be liable, they went on to further consider whether they had taken all reasonable steps to prevent the incident in any event.

The tribunal decided that the NHS Trust had taken all reasonable steps to prevent the incident because:

• Mr a Hammond had attended an induction session dealing with acceptable behaviour at work, where, among other things, the NHS Trust’s core values of affording dignity, trust and respect to everyone were emphasised.
• Mr Hammond’s performance was assessed annually, whereby he was judged as to whether he was acting in accordance with these core values.
• The NHS Trust’s core values were displayed on posters around where Mr Hammond worked.
• Mr Hammond was obligated to attend mandatory equality and diversity training every 3 years, whereby he was required to participate and work in small focus groups. He had very recently attended such training.

The EAT upheld this decision. Persuasive to this outcome was that the claimant had not forwarded any other steps that could have been taken to prevent the incident, and the EAT had no further suggestions. As such, it was correct that the NHS Trust had taken all reasonable steps.

Equally persuasive was that the claimant had, only days before the incident, undertaken equality and diversity training. This training was focused on creating a positive attitude towards equality and diversity by showing respect for others, valuing people’s differences and treating people with dignity.

Conclusion

This decision in particular highlights the importance for employers to ensure mandatory training for its employees. This is especially important with employers being under a specific duty to prevent sexual harassment in the workplace since October 2024, and the additional duties that will be introduced by the Employment Rights Bill.

The EAT’s decision here should give some comfort to employers as to what all reasonable steps will look like, however it is predicated on you having properly educated and trained your staff as to what is acceptable and what is not.

Kuits can provide training to employers, specifically around preventing sexual harassment in the workplace, and this training would form a key part of any all reasonable steps defence.

If you are interested in learning more about our training offering please contact the employment team on 0161 832 3434.