In this case, the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s (“ET”) decision that the first Respondent employer was not liable for racial abuse by the second Respondent (its employee) towards the Claimant as the abuse did not occur “in the course of employment” and the first Respondent had taken all reasonable steps to prevent such conduct from occurring.
The Claimant, a full-time Branch Secretary for the trade union UNISON and employee of the first Respondent, was approached by the second Respondent, a colleague who had left the union but continued to have subscription fees deducted from his salary.
After being advised to speak to UNISON directly, the second Respondent confronted the Claimant. The Claimant refused to reimburse him, and the second Respondent left before returning angrily and repeatedly calling the Claimant abusive names including calling the Claimant a term with racial undertones.
The Claimant claimed racial harassment against both Respondents. The ET decided that the first Respondent was not vicariously liable for the second Respondent’s racial remark as it was not made “in the course of employment”. Although the remark had been made at the first Respondent’s premises and during the second Respondent’s work hours, it happened during a break and was about a personal union-related issue, unrelated to the second Respondent’s employment duties. Additionally, the second Respondent did not have to be a union member to be employed by the first Respondent.
The ET also concluded that the first Respondent had taken “all reasonable steps” to prevent such conduct (i.e. harassment) from occurring. Those steps included induction training on dignity at work and expected behaviour which emphasised the first Respondent’s core values, annual performance reviews which considered compliance with those core values, posters displaying those values in the workplace, and mandatory equality and diversity training every three years — most recently completed by the second Respondent just 11 days prior to the incident. Therefore, even if the remark had been deemed “in the course of employment”, the first Respondent would have a statutory defence and therefore would not have been vicariously liable for the act of harassment carried out by the second Respondent.
The Claimant appealed to the EAT on the basis that the ET had focused too narrowly on what was said and failed to apply the proper legal test for the “all reasonable steps” defence. The EAT dismissed the appeal, deciding that the ET had balanced all relevant factors and had not made an error of law in the way it applied the defence.
This case highlights the limits of employer liability under the Equality Act 2010 and that, whilst always fact and case specific, employers may not be liable for employees’ actions if they are personal and unrelated to their work/duties, despite taking place on work premises. It also demonstrates the importance for employers of taking proactive preventive measures to prevent discrimination as a means of avoiding liability for the unlawful discrimination of their employees. Whilst the “all reasonable steps” defence is a high bar, this case shows that it is possible to rely on the defence and highlights the key steps that employers should consider taking.