UK: Discrimination: Racial Harassment

Authors: Stephen Miller, Corinna Harris, and Sophie Jackson

 

The EAT has ruled that an employer was not liable for racial harassment because it was not committed “in the course of employment.”

Mr Campbell was an employee of the Hospital Trust and a Branch Secretary of UNISON. A colleague, Mr Hammond, had sought to terminate his UNISON membership but his subscriptions were still being deducted. During a break from work, he went to Mr Campbell’s office to ask for a refund. When Mr Campbell refused, Mr Hammond became frustrated and made a racist comment.

Mr Campbell subsequently brought a racial harassment claim. Employers will be liable for harassment committed by their employees “in the course of employment” – unless the employer can show they took all reasonable steps to prevent harassment.

The EAT concluded that, when considering whether Mr Hammond was acting “in the course of employment”, the tribunal had correctly taken the whole context into account. Although there were several connections between the incident and Mr Hammond’s employment, it found that his membership of UNISON was a personal choice and the conversation related to a personal dispute with UNISON and the comment was not made in the course of employment.

The EAT also agreed with the tribunal’s finding that the Trust had taken all reasonable steps to prevent harassment.

Key Action Points for Human Resources and In-house Counsel

Whether or not an employer is found to have taken all reasonable steps to prevent harassment will vary according to the particular circumstances. In this case, the steps taken by the employer included:

• Holding an induction session (which Mr Hammond attended) where the issue of acceptable workplace behaviour and the employer’s values, referred to as “PROUD values” – “affording dignity, trust and respect to everyone” – were emphasised
• Displaying the PROUD values on posters around the workplace
• Including in annual appraisals whether employees were acting in accordance with PROUD values
• Less than two weeks before the incident occurred, mandatory DEI training was provided (which Mr Hammond attended) which referred to promoting “a positive attitude towards equality and diversity by showing respect for others, valuing people’s differences and treating people with dignity.”

Campbell v North Hospitals NHS Foundation Trust & Hammond