How can an employer demonstrate they have taken all reasonable steps to prevent harassment in the workplace?

The Employment Appeal Tribunal (EAT) recently decided that an employer had taken all reasonable steps to prevent harassment in the workplace, leading to the dismissal of claims in Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond.

Facts

Mr Hammond (R2) was a white male employee of the Sheffield Teaching North Hospitals NHS Foundation Trust (R1). Mr Campbell (C), a black male employee of R1, worked as Branch Secretary for their trade union.

R2 decided to terminate his trade union membership and approached C regarding the process. When C informed him that deductions for membership subscriptions could not be refunded, R2 made a racially discriminatory statement towards C.

C made a claim to the Employment Tribunal (ET) alleging harassment on the grounds of race by R2 and that R1 was liable.

ET Decision

The ET determined that the interaction in question was a personal dispute between R2 and the trade union. It reasoned that since R2’s membership to the union was a personal choice, the incident did not occur in the course of his employment, despite the remark being made on R1’s premises during work hours.

Further, and in any event, the ET concluded that R1 had taken all reasonable steps to prevent harassment. These measures included: requiring new starters to attend induction training that outlined acceptable workplace behaviour; incorporating an assessment of employees’ adherence to R1’s values (which included treating everyone with dignity and respect) into annual performance reviews; displaying posters promoting these values in areas where R2 worked; and mandating equality and diversity training for employees every three years. R1 evidenced that R2 had completed the required training and performance assessments.

C appealed this decision, arguing there was a connection between the workplace and his union membership, and that R1 should have taken additional measures to prevent the situation.

EAT Decision

The EAT dismissed C’s appeal, concluding the comment was not made in the course of employment since it occurred between a union official and member about union membership. Additionally, it agreed with the ET that the measures implemented by R1 met the threshold for the “all reasonable steps” defence.

Comment 

This decision provides valuable guidance for employers on what constitutes “all reasonable steps” to avoid liability for discriminatory actions carried out by employees. It is important to understand that this criterion is subjective and will vary depending on the nature and size of the employer. For additional advice on the measures you should be implementing, and for details on appropriate training we can offer to assist with such measures, please contact a member of our employment team.

Should you have any questions regarding your workplace, please do not hesitate to reach out to a member of our team.