Racial Harassment: the meaning of 'in the course of employment' and 'reasonable steps'

The case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Wesley Hammond explored two interesting issues in the context of racial harassment, but the principles apply to all claims of harassment. It is particularly interesting in light of the new duty to take reasonable steps to prevent sexual harassment that was introduced in October 2024.

Mr Campbell was employed by the NHS Trust, but worked on a full-time basis as Branch Secretary of a trade union. Mr Hammond was a member of the union and, during a discussion with Mr Cambell about leaving the union and what would happen about payment of his union subscriptions, Mr Hammond became angry and made a racial remark to Mr Campbell.

Mr Campbell brought a claim of race harassment against the NHS Trust, which was dismissed by the Tribunal and the Employment Appeal Tribunal.

The reasons for dismissing the claim were:

• The conduct of Mr Hammond was not conduct “in the course of employment”:
  
  • Whilst it took place on work premises during work hours, other relevant factors were.
  • Mr Hammond did not need to be a member of the union because of his employment and it was a personal decision of his to join, and then leave.
  • The conversation related to a personal dispute that he had with the union.
• Even if the conduct was in the course of employment, the Trust had a defence to the claim because it had taken all reasonable steps to prevent discrimination taking place, noting that steps taken were:
  • Mr Hammond had attended an induction session at which the Trust’s core values of dignity, trust and respect to everyone (referred to as “PROUD values”) were discussed.
  • Annual performance assessment of Mr Hammond covered the issue as to whether he was acting in accordance with PROUD values.
  • The display of PROUD values on posters in areas where Mr Hammond worked.
  • Mandatory training every three years on equality and diversity, undertaken recently by Mr Hammond.

One important element of the analysis of the “reasonable steps” defence was that the previous case law has established the thought process that the Tribunal should follow as:

• Consider what steps had been taken.
• Consider whether there were any further reasonable steps that could have been taken.

In this case, the Claimant did not suggest during the hearing any other steps that the Trust could have taken, hence the decision that all reasonable steps had been taken. Had the Claimant suggested other steps that could have been taken, and had the Tribunal considered that those steps would have been reasonable, then that element of the decision would have been different.

All employers now have the duty to take reasonable steps to prevent sexual harassment in the workplace. Under the Employment Rights Bill, this will extend to a duty to take all reasonable steps. The steps taken by the Trust in this case were common, recommended steps such as training and display of posters. There are other steps suggested by the EHRC in its guidance that we may see future claimants suggesting would be reasonable steps for employers to take to prevent harassment. For example:

• A clear complaints process (including consideration of anonymous reporting mechanisms)
• Monitoring and reviewing complaints
• Exit interviews
• Surveys