And speaking of learning something new brings me to the unusual case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust, Mr Wesley Hammond.

Mr Campbell was a black man who worked at the Sheffield Teaching Hospitals NHS Foundation Trust. In addition, he also worked as a branch secretary for the trade union UNISON, with an office located on the NHS Trust’s premises.

Mr Hammond was also an employee of the NHS Trust where he worked as a domestic assistant, and had been a member of UNISON, however had informed the union that he intended to leave. Despite this, his membership subscriptions continued to be deducted from his wages.

In October 2020, Mr Hammond went to see Mr Campbell and asked for his subscriptions to be refunded. Mr Campbell told him that this could not happen and this eventually broke out in an argument. During the heated argument, Mr Hammond made racially discriminatory comments towards Mr Campbell, referring to him as a “f**king monkey”.

Because of this, Mr Campbell filed an Employment Tribunal claim of discrimination against the NHS Trust and Mr Hammond.

The ET had to determine whether the discriminatory comments were made during the course of Mr Hammonds’ employment. Under section 109(4) of the Equality Act 2010, employers are liable for acts of discrimination, harassment and victimisation carried out by employees in the course of their employment. The ET considered the fact that it occurred on the NHS Trusts’ premise, and in Mr Campbell’s office during working hours.

However, despite this the ET determined that the comments were not made in the course of employment. This was because the comments were a result of Mr Hammond’s trade union membership, not employment discussions made by the NHS Trust. The ET noted that having a union membership was not a condition of employment by the NHS Trust, it was a personal choice. Given this, the ET determined it a personal dispute and not something that occurred as a result of his employment.

The ET also found that the NHS Trust had taken all reasonable steps to prevent any discrimination. This was supported by the fact that Mr Hammond had attended a session dealing with acceptable behaviour at work, his performance was assessed annually, he was assessed on whether he acted within the NHS Trusts’ core values, and he was obliged to attend equality and diversity training every three years. These aspects helped the Trust prove that they took all reasonable steps to prevent discrimination.

Mr Campbell appealed this decision to the Employment Appeal Tribunal. He argued that the conversation had taken place at work and that the NHS Trust should have done more to prevent the situation.

The EAT refused the appeal. They agreed with the ET in concluding that the comments were not made in the course of employment as the content of the conversation was between a union official and union member about membership. Also revisiting the ET justification, the EAT agreed that the NHS Trust took all reasonable steps to prevent any discrimination or harassment occurring.

This case demonstrates that an employer can only be held liable for discriminatory acts if the behaviour takes place in the course of employment. It also emphasises that employers who have taken all reasonable steps to prevent discrimination, such as offering appropriate training, implementing clear policies and promoting core workplace values, may be protected from liability. This underlines the importance of proactive measures in safeguarding organisations against discrimination claims.