The Employment Appeal Tribunal (EAT) has recently considered the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025] EAT 42, and upheld the 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 because the employer had taken all reasonable steps to prevent it.
Mr Campbell, a Trust employee, was Branch Secretary of UNISON. Mr Hammond, another Trust employee, went to Mr Campbell’s office during a break to discuss a refund of union subscriptions that had been deducted from his wages, despite him having sought to terminate his UNISON membership.
The conversation became heated and Mr Hammond made a racist comment towards Mr Campbell. Mr Campbell subsequently brought a claim for harassment on the basis of race against the Trust in the Employment Tribunal (ET).
The EAT accepted that the ET had correctly taken the context into account when determining whether Mr Hammond was acting ‘in the course of employment’ for the purposes of section 109(1) of the Equality Act 2010.
The ET had noted that there were several connections between the incident and Mr Hammond’s employment at the Trust including that it took place during Mr Hammond’s working day; in an office close to his working area; and it related to union membership that entitled him to support of a union recognised by the Trust.
However, it was held that Mr Hammond’s membership of UNISON was a personal choice and the conversation in which the incident took place related to Mr Hammond’s personal dispute with the union.
In the alternative, the EAT also found that the Trust had taken ‘all reasonable steps’ to prevent harassment for the purposes of section 109(4) of the Equality Act 2010. For example, Mr Hammond had very recently undertook mandatory equality and diversity training, he had attended an induction session emphasising the Trust’s core values, he underwent an annual performance assessment which considered whether he acted in accordance with those values and the values were displayed on posters.
When considering whether the Trust could have taken any other reasonable steps (a key component to the legal test), it was held that the Trust had taken all reasonable steps.
This case demonstrates the importance of businesses taking all reasonable steps to prevent harassment from occurring in the workplace, and the benefits of getting this right. In this case, it could have been the difference between the claim succeeding or not (had there not already been a finding that the harassment did not occur in the course of employment).
When considering reasonable steps that your business could take, we suggest the following:-
- Policies / procedures and keeping them up-to-date
- Training and annual refreshers
- Ensuring the company’s values form part of the company culture
Every business is different, and what might be considered reasonable for one company might not be reasonable for another. It is therefore recommended that legal advice is sought regarding the steps that the business is taking to prevent harassment, and if any further steps are recommended.
If you do need advice on taking steps to prevent harassment in the workplace, please do not hesitate to contact the Employment team at Glaisyers ETL.
