Employment tribunal rules on race discrimination appeal

Introduction and procedural history

The Employment Appeal Tribunal (EAT) recently delivered its decision in the case of John J Campbell vs Sheffield Teaching North Hospitals NHS Foundation Trust and Wesley Hammond. The appeal arose from a judgment by an employment tribunal in Sheffield, which dismissed Mr Campbell's claims of racial abuse and harassment under the Equality Act 2010.

Background of the case

The appellant, Mr John J Campbell, was employed by the first respondent, Sheffield Teaching North Hospitals NHS Foundation Trust, and served as a Branch Secretary for the union UNISON. The second respondent, Mr Wesley Hammond, was also an employee of the Trust and had been a union member. The dispute arose when Mr Hammond, who wished to leave the union, confronted Mr Campbell over the continued deduction of union subscriptions from his wages.

The incident

On 12 October 2020, Mr Hammond approached Mr Campbell to discuss the subscription deductions. During this interaction, Mr Hammond allegedly made a racially abusive remark, referring to Mr Campbell, who is black, as a "fucking monkey". The tribunal found that while the remark was made, it was not "in the course of" Mr Hammond's employment as defined by section 109(1) of the Equality Act 2010.

Tribunal's findings

The tribunal concluded that the incident was a personal matter between Mr Hammond and the union, unrelated to his employment duties. Furthermore, the tribunal determined that the Trust had taken all reasonable steps to prevent such conduct, thereby satisfying the defence under section 109(4) of the Equality Act.

Appeal grounds

Mr Campbell's appeal argued that the tribunal erred in its application of section 109(1) by focusing solely on the content of the conversation rather than the broader context. Additionally, he contended that the tribunal failed to properly apply the two-stage test from Canliffe v. East Riding of Yorkshire Council regarding the "all reasonable steps" defence.

EAT's decision

The EAT, presided over by the Hon. Lord Fairley, upheld the tribunal's decision. It found that the tribunal had considered the entire context and appropriately balanced the factors regarding the employment context of the remark. The EAT also agreed that the tribunal correctly applied the section 109(4) defence, noting that no further reasonable steps were identified that the Trust could have taken.

Conclusion

The EAT's ruling reinforces the importance of context in determining whether conduct occurs "in the course of employment" under the Equality Act. It also highlights the necessity for employers to demonstrate proactive measures in preventing workplace discrimination.

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