In the context of UK employment law, the concepts of "in the course of employment" and "reasonable steps" are pivotal in determining employer liability for acts of racial harassment. These terms have been further clarified by recent case law, particularly in the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Wesley Hammond, which provides significant insights into how these concepts are applied in practice.
Defining 'In the Course of Employment'
The phrase "in the course of employment" is crucial in determining whether an employer can be held liable for the discriminatory acts of their employees. Generally, an employer is vicariously liable for acts of discrimination or harassment carried out by their employees during the course of their employment. However, the boundaries of what constitutes "in the course of employment" can sometimes be blurred, especially in situations involving social events or personal disputes that occur on work premises.
In the Campbell case, the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) examined whether a racially discriminatory remark made by Mr. Hammond, a union branch secretary, to Mr. Campbell, a union member, occurred in the course of employment. The incident took place on employer premises during work hours, but the ET concluded that it was not in the course of employment because it was a personal dispute related to union membership, which was a personal choice of Mr. Hammond. This decision highlights that even if an incident occurs on work premises and during work hours, it may not necessarily be considered as occurring in the course of employment if it is related to personal matters.
The 'Reasonable Steps' defence
The "reasonable steps" defence is a statutory defence available to employers under the Equality Act 2010. It allows employers to avoid liability for discriminatory acts committed by their employees if they can demonstrate that they took all reasonable steps to prevent such acts. This defence is particularly relevant in cases of harassment, where employers must show that they have implemented effective measures to prevent harassment in the workplace.
In the Campbell case, the EAT upheld the ET's decision that the Trust had taken all reasonable steps to prevent harassment. The Trust had implemented several measures, including induction training on acceptable workplace behaviour, annual performance assessments aligned with the Trust's core values, and mandatory equality and diversity training every three years. These measures were deemed sufficient to meet the "all reasonable steps" standard, as no further steps were identified during the tribunal proceedings that could have been taken to prevent the harassment.
Practical implications for employers
The Campbell case provides valuable guidance for employers on how to effectively implement the "reasonable steps" defence. Employers should consider the following practical steps to ensure they meet the necessary standard:
Comprehensive training programmes: Employers should provide regular and comprehensive training on equality, diversity, and anti-harassment policies. This training should be mandatory for all employees and should be refreshed periodically to ensure its effectiveness. The training should cover the employer's core values and expectations regarding workplace behaviour.
Clear policies and procedures: Employers should have clear policies and procedures in place to address harassment and discrimination. These policies should be communicated to all employees and should outline the steps employees can take to report incidents of harassment. Employers should also ensure that these policies are regularly reviewed and updated to reflect any changes in legislation or best practices.
Monitoring and evaluation: Employers should regularly monitor and evaluate the effectiveness of their anti-harassment measures. This can be done through employee surveys, feedback sessions, and regular reviews of harassment complaints. Employers should be proactive in identifying any gaps in their policies or training and should take steps to address these gaps promptly.
Supportive workplace culture: Employers should foster a workplace culture that promotes respect, inclusivity, and diversity. This can be achieved through leadership commitment, employee engagement, and the promotion of positive behaviours. Employers should also encourage open communication and provide support to employees who experience harassment.
Legal considerations and future developments
The Campbell case underscores the importance of taking a rigorous approach to preventing discrimination and harassment in the workplace. With the introduction of the Employment Rights Bill, which proposes to mandate that employers take "all reasonable steps" to prevent harassment from both employees and third parties, it is more important than ever for employers to ensure they are compliant with legal requirements.
Employers should also be aware of the potential for personal liability in discrimination claims. Employees can be held personally liable for acts of discrimination, and employers may also be liable for failing to take reasonable steps to prevent such acts. This highlights the need for employers to take a proactive approach to preventing harassment and discrimination in the workplace.
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