Race discrimination

Under discrimination law, an employer is liable not only for its own discriminatory acts, but also for those carried out by its workers ‘in the course of their employment’. However, an employer will have a defence to this vicarious liability if it has taken ‘all reasonable steps’ to prevent discrimination from occurring. The EAT has recently considered whether an employer was liable for a racist comment made in an argument between two colleagues about trade union business.

The EAT were considering a race discrimination claim brought by C. Although C is employed by an NHS Trust, he is engaged full-time on trade union duties for the Trust’s recognised trade union and performs those duties from a union office on hospital grounds. H worked as a domestic assistant with the same Trust. He visited the trade union’s on-site office (which was a few hundred metres away from the ward where he worked) during his break. H was unhappy that, despite seeking to leave the trade union, his trade union dues were still being deducted from his pay and went to the union’s office to demand a refund. This led to a heated discussion during which, in anger, H (who is white) made a racist comment towards C (who is black).

Following this incident, C unsuccessfully brought race discrimination claims against both the Trust and H. The employment tribunal considering his claims held that, although the relevant racist comment had been made by H towards C, it had not been made ‘in the course of’ H’s employment. Alternatively, the Trust had a defence because it had taken all reasonable steps to prevent discrimination of this nature occurring. C appealed.

The EAT dismissed C’s appeal and upheld the tribunal’s decision. First, the EAT held that the tribunal had not erred in the way it had approached the issue of whether H’s actions were done ‘in the course of his employment’. The EAT were satisfied that the tribunal had properly considered the whole factual context and balanced the factors for and against, before concluding H’s comment was not made ‘in the course of’ his employment, and the weight the tribunal had attributed to individual factors was a matter for the tribunal to determine:

• Positive factors for the incident being ‘in the course of employment’:

  • the incident occurred during H’s working day (whilst he was on a break from work);

  • the office where the incident occurred in an situated on hospital grounds, nearby to where H worked; and

  • the dispute related to the deduction of trade union dues from H’s pay for membership of the Trust’s recognised trade union.

• Negative factors against the incident being ‘in the course of employment’:

  • trade union membership was not a condition of H’s employment with the Trust;

  • the conversation was between a trade union member and a full-time trade union official; and

  • the heated argument related to the payment of trade union dues.

The EAT also went on to express the view, whilst not determining the point, that the tribunal had also been entitled to conclude that the Trust would likely succeed anyway in establishing it had taken ‘all reasonable steps’ to prevent discrimination. This was based on the fact the Trust had:

• Covered dignity at work principles during H’s induction;

• Used it appraisal process to assess worker compliance with its dignity at work values;

• Displayed posters around the workplace which placed emphasis on all staff being treated with dignity at work; and

• Required staff to undertake mandatory training every three years on equality and dignity at work.

Although discrimination cases are often fact-specific, the EAT’s decision will be of particular interest to employers with full-time trade union representatives on their payroll. It also acts as a useful reminder for employers that taking proactive steps to prevent and minimise the risk of discrimination occurring can provide a defence to some discrimination claims.

Campbell -v- Sheffield Teaching North Hospitals NHS Foundation Trust [2025] EAT 42