John Campbell

Sheffield Teaching North Hospitals NHS Foundation Trust

Employer not liable for a racist comment as the comment by another employee was not made in the course of employment and in any event the employer had taken all steps to prevent such behaviour through the use of training.

The claimant was employed by the respondent and worked on a full-time basis as Branch Secretary of the recognised union. The second respondent was a member of the union but decided to leave. There was an ongoing deduction from the second respondent’s wages, and he became angry in a discussion and made a remark which the claimant felt was racist abuse.  The Tribunal, at first instance, agreed that the remark had been made but it was not in the course of the second respondent’s employment.  It also found that the employer had taken all reasonable steps to prevent employees from marking remarks or doing things of that description.  This led to the claim being refused and the claimant appealing.

The EAT held that the Tribunal was correct in deciding that it was not in the course of employment. This was based upon the whole context and balanced the factors at play.  It was not just whether it related to an employment relationship, but it was for the Tribunal to weigh up all the factors within the parameters set out by the legislation and that there could be no challenge to that conclusion.

On the second ground, it was held that the employer had taken all reasonable steps to prevent such behaviour.  It was notable that only a few days before the remark there was a mandatory equality and diversity training exercise run with a small group. Therefore, it was entirely understandable for the Tribunal to make the decision that there was a defence in that all reasonable steps had been taken.

Whilst the second ground was labelled ‘moot’ by the EAT considering the decision for the first tribunal – it provides a clear picture in terms of how employers can defend themselves against being liable for the discriminatory actions or remarks made by employees. The importance of training was clear in the judgment here and should be clear for employers, not only for employee-employer relations generally, but also to avoid future liability.

You can read the case in full here:
https://assets.publishing.service.gov.uk/media/67e53236a82c168e578c9b66/Mr_John_J_Campbell_v_1__Sheffield_Teaching_North_Hospitals_NHS_Foundation_Trust_2__Mr_Wesley_Hammond__2025__EAT_42.pdf