In cases of discrimination, victimisation and harassment employers are liable for the acts carried out by their employees even if the acts in question were done without the employer’s knowledge or approval. But there is a defence that can be used by employers in cases like these. Employers can escape liability if they can prove that they took all reasonable steps to prevent discrimination from occurring. This is not an easy defence to establish and there is a high bar in order to be successful.
The case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust is an example of a case where this defence was successfully used. The Claimant worked for the Trust but was also a Unison branch secretary. Mr. Hammond was an employee of the Trust who had decided he did not wish to be a member of Unison any longer and asked that his deductions be refunded. When he was told this would not be possible he angrily called the Claimant, who is black, a “f**king muppet” and a “f**king monkey”.
The Claimant brought a case of race discrimination before the Employment Tribunal based on these remarks. The Trust were able to successfully plead the all reasonable steps defence. There were a number of anti-discrimination initiatives the Trust engaged in which established the defence, namely mandatory training every three years on equality and diversity (which Mr. Hammond had recently completed), induction training sessions on equality and diversity which emphasised the Trust’s ‘Proud’ core values, posters which reinforced these values, and annual performance reviews which again considered these values.
The Claimant appealed the decision, partly on the basis that the Trust had not taken enough steps to successfully use the all reasonable steps defence, but was unsuccessful.
For employers, this case shows how much is expected of an employer who wishes to rely on the all reasonable steps defence. Things like training are good starting points but are unlikely to be enough on their own.
If you have any questions on any of the issues raised in this article, please contact Alan Sutherland.