NHS Trust not liable for racial harassment which did not take place ‘in the course of’ employment

In the recent Employment Appeal Tribunal (EAT) case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Hammond, the EAT upheld a tribunal’s decision that an employer was not liable for a racially harassing comment because it was not made in the course of employment and the employer had taken all reasonable steps to prevent it.

Background

Mr Campbell, who was employed by Sheffield Teaching Hospitals NHS Foundation Trust (the Trust), was a full-time Branch Secretary for UNISON. He engaged in discussions with a colleague, Mr Hammond, regarding the union membership deductions from his wages. During a particularly heated exchange, Mr Hammond allegedly directed a racially offensive remark at Mr Campbell, who is black.

Mr Campbell issued a claim alleging racial harassment, asserting that the Trust was vicariously liable for Mr Hammond’s conduct.

Employment Tribunal findings

The initial Employment Tribunal (ET) acknowledged that Mr Hammond made the offensive remark but concluded that it did not occur ‘in the course of’ his employment. The tribunal noted that the altercation stemmed from a personal dispute over union membership—a matter of personal choice unrelated to Mr Hammond’s professional duties. Additionally, the ET determined that the Trust had taken all reasonable steps to prevent such incidents, including:

• Conducting induction sessions emphasising acceptable workplace behaviour and the Trust’s core values.
• Implementing annual performance assessments reinforcing these values.
• Displaying core values prominently within the workplace.
• Providing mandatory equality and diversity training every three years, which Mr Hammond had recently completed as part of a small group.

Appeal decision

Mr Campbell appealed, arguing that the ET was incorrect to not consider the entirety of the circumstances, and by inadequately assessing whether the Trust had exhausted all reasonable preventative measures. The EAT upheld the ET’s decision, affirming that:

1. The tribunal had appropriately evaluated the context, determining that the incident arose from a personal matter which was unrelated to Mr Hammond’s employment duties.
2. The Trust had implemented comprehensive measures to prevent discriminatory behaviour, satisfying the “all reasonable steps” requirement under the Equality Act 2010.

Learning points for employers

This case underscores several considerations for employers:

• Employers may not be held liable for employees’ actions that are deemed personal and unrelated to their professional duties, even if they occur on work premises during working hours. However, any judgment on this will turn on the specific facts of the case.
• Demonstrating a proactive approach to preventing discrimination—through regular training, clear policies, and a culture of respect—can provide a robust defence against vicarious liability claims.
• Maintaining thorough records of training sessions, policy communications, and related initiatives is vital to substantiate the ‘reasonable steps’ defence if challenged.

By diligently fostering an inclusive and respectful workplace environment and documenting these efforts, employers can better protect themselves against liability in cases of employee misconduct.

For more information about this article or any other aspect of people services reimagined, download our App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.