EAT Upholds Dismissal of Racial Harassment Claim

The Employment Appeal Tribunal (EAT) has rejected a man’s appeal against the dismissal of his claim for racial harassment on the grounds that the incident did not happen in the course of employment and that his employer had taken all reasonable steps to prevent it.

The man worked for an NHS trust as branch secretary of a trade union. A colleague of his who had formerly been a member of the union went to his office during a break from work to discuss the fact that membership subscriptions were still being deducted from his wages. His colleague became angry and made a comment that he regarded as racially abusive.

Ruling on the man’s racial harassment claim, the Employment Tribunal (ET) noted that the incident had occurred during the colleague’s working day, albeit during a break. The meeting had taken place in an office near the ward on which the colleague mainly worked and related to subscriptions for membership of a union recognised by the trust. However, the colleague’s membership of the union was a matter of personal choice and the conversation related to a personal dispute with the union. Considering the evidence as a whole, the ET concluded that, for the purposes of Section 109(1) of the Equality Act 2010, the incident had not occurred in the course of the colleague’s employment.

The ET also found that, in terms of Section 109(4) of the Act, the trust had taken all reasonable steps to prevent the comment being made. The colleague had attended an induction session emphasising acceptable behaviour at work and the trust’s core values. Those values were covered in the colleague’s annual performance assessments and were displayed in the workplace. The trust also provided mandatory training on equality and diversity issues.

The man appealed to the EAT on the ground that the ET had placed too much weight on the personal content of the conversation and disregarded important factors linking it to the colleague’s employment. He also argued that the ET had only asked itself what steps the trust had taken to prevent the incident, and had not considered whether there were any further practicable steps that could have been taken.

The EAT noted that the man was not arguing that the ET’s conclusion on whether the incident had occurred in the course of the colleague’s employment was perverse. While a different ET might have reached a different conclusion, a challenge to the ET’s factual findings would have to be based on perversity. No such challenge was made, nor could it be.

As the man’s first ground of appeal failed, it was not necessary to consider whether the trust had taken all reasonable steps to prevent the incident. However, the EAT noted that it was unpersuaded by this ground of appeal. The ET had found that, only days before the incident, the trust had provided the man’s colleague with equality and diversity training in a small group. The ET had properly directed itself on the defence under Section 109(4) and had found that the trust had proved that defence.