Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the Employment Appeal Tribunal's judgment in the case of Campbell and Sheffield Teaching North Hospital's NHS Foundation Trust, in which it was asked to consider whether an employer was liable for a racist comment made by one employee towards another in the context of a dispute about trade union business. While an employer will ordinarily be liable for its workers' discriminatory acts carried out in the course of their employment. There is a defence if the employer has taken all reasonable steps to prevent discrimination. In this case, a union representative was employed by an NHS trust but was engaged full-time on union duties with the recognised trade union operating from an office on hospital grounds. A union member who worked for the trust as a domestic assistant was unhappy that although he had sought to leave the union, his member subscriptions were still being deducted from his pay. During his break, the domestic assistant visited the union's office. which was a few hundred metres away from the ward where he worked, to complain about these pay deductions and demand a refund of his overpaid dues. A heated discussion ensued and in anger, the domestic assistant, who is white, made a racist comment towards the union rep, who is black. The union rep unsuccessfully brought race discrimination claims against both the trust and the domestic assistant. Although the Employment Tribunal found that the relevant racist comment had been made towards the union rep, It nevertheless held that the comment had not been made in the course of the domestic assistant's employment with the Trust and that the Trust had taken all reasonable steps to prevent discrimination. The Employment Appeal Tribunal refused the union rep's appeal and upheld the Tribunal's decision. The Employment Appeal Tribunal firstly dismissed the union rep's argument that when considering whether the domestic assistant's actions were done in the course of his employment, the Tribunal had erred by failing to consider the totality of the facts. The tribunal had noted that the incident took place during the domestic assistance working day, happened in an office on hospital grounds situated close to where he worked, and that it related to the deduction of subscriptions for membership of the recognised union. Conversely, it had also considered that union membership was a matter of personal choice and was not a condition of the domestic assistant's employment, and that the heated conversation in which the offending comment was made was between a trade union member and a union official and related to trade union subscriptions. The tribunal had properly considered the whole factual context and balanced the factors for and against before concluding that the domestic assistance comment was not made in the course of his employment. The weight the tribunal had attributed to individual factors was pre-eminently a matter for the tribunal itself. Although not required to determine the point, the Employment Appeal Tribunal went on to express the view that the tribunal had also been entitled to conclude. but the Trust would likely succeed anyway in establishing it had taken all reasonable steps to prevent discrimination because it had covered dignity at work during the domestic assistance induction, had assessed worker compliance with its dignity at work values during annual appraisals, had displayed posters around the workplace emphasising its dignity at work values and required staff to undertake mandatory training on equality and dignity at work issues every three years. Look out for further episodes in this series to stay up to date on all things HR and employment law related.