How can EDI training help employers to defend an employment tribunal claim?
How effective is a programme of EDI and "Behaviours at work" training in providing a defence for the employer when an Employment Tribunal claim is brought under the Equality Act 2010 (the Act)? And when is an employee acting "in the course of their employment" when carrying out discriminatory conduct?
These issues were considered very recently in the Employment Appeal Tribunal (EAT) in the case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust and another.
The EAT confirmed the original decision in the Employment Tribunal that Mr Hammond , an employee of the NHS Trust, was not acting in the course of his employment when he had a heated argument with another employee, Mr Campbell, over Trade Union subscriptions. Also, the EDI and "Behaviours at work" training provided by the NHS Trust and undertaken by Mr Hammond provided grounds for the employer to successfully argue the statutory defence under the Equality Act that it had taken all reasonable steps to prevent Mr Hammond from abusing his colleagues.
Discriminatory Conduct: When Actions Are Not 'In the Course of Employment'
Section 109 (1) Equality Act states "Anything done by a person (A) in the course of A's employment must be treated as also done by the employer." This means an employer will only be liable for its employees' discriminatory actions if these are done "in the course of employment". If they were done in the course of employment the employer will be liable whether or not they knew of the discriminatory act.
The words "in the course of employment" are not restricted to the narrow meaning used to establish vicarious liability in other areas of the law but are intended to be given their ordinary meaning in a way every layman would understand them. Whether an act is done in the course of employment is a factual question to be decided by the tribunal. This can lead to decisions that sometimes appear contradictory because cases are inevitably very fact sensitive.
Sometimes it is easy to understand that a particular action is in the course of employment. A manager making employment-related decisions (for example, in deciding whether to promote or dismiss an employee) will, in practice, always be acting in the course of employment. Harassment of an employee by a colleague in the workplace will almost certainly be covered under the Act. However, a large amount of the case law on this subject arises from situations when the conduct arises off the work premises and out of normal working hours, particularly at social gatherings. In those circumstances the courts have considered the following factors:
- Whether the incident took place on the employer's premises.
- Whether the victim and/or alleged discriminator were on duty.
- Whether the gathering where the incident occurred included employees' partners, customers or unrelated third parties.
- Whether the event took place immediately after work.
Some situations may be considered an "extension of employment"; for example, a colleague's leaving party, or less formal gatherings such as informal drinks with colleagues in the pub immediately after work. However, a chance meeting with a colleague for example in a supermarket would be unlikely to be considered in the course of employment.
Employment Tribunal Case Study: Racist Comment During Union Dispute
An argument developed between an employed trade union official within an NHS Trust (Mr C) and another employee of the same Trust who was a member of the same union (Mr H). The heated discussion included a comment by Mr H made to the union official that could be considered a racist comment. It was made during the working day of both employees (albeit during a break), in an office close to Mr H's usual working area. It took place during a conversation relating to the deduction of subscriptions for trade union membership which entitled Mr H to the support of a union recognised by his employer and in which Mr C held an important role.
Employment Tribunal Ruling: Personal Dispute Not 'In the Course of Employment'
Despite these connections to Mr H's employment within the NHS Trust, the Tribunal concluded it was Mr H's personal choice to be a member of the union, and the incident was in the context of a conversation about a personal dispute between Mr H and the union about his subscriptions which was unconnected to work. Therefore, it did not take place "in the course of employment" and the employer was not liable for the actions of Mr H. The Employment Appeal Tribunal agreed with this decision.
Social Media and Employment: When Online Actions Are Not 'In the Course of Employment'
It can be difficult to ascertain whether acts are done "in the course of employment" when they are done by an employee online (for example, on social media). In Mr O Forbes v LHR Airports Ltd the EAT found that the posting of a racially offensive image on an employee's personal Facebook page was not done in the course of employment. The employee who had posted the image did so in her own time, and did not mention any colleagues or the employer in the post. It was concluded that it is not possible to lay down any hard and fast guidance as to when such conduct should incur employer liability under the Act. In this case the EAT took the view that a lay person would not consider that the sharing of an image on a private non-work-related Facebook page, with a list of friends that largely did not include work colleagues, was an act done in the course of employment.
As with the physical work environment, whether something is done in the course of employment when done online will be a question of fact looking at all the circumstances. This may not be very helpful for employers when making decisions about disciplinary action but it does demonstrate the importance of taking a practical approach after carefully consideration of the facts and documenting the reasons for decisions taken.
Defending Discrimination Claims: The Role of EDI Training in Employer Liability
As we have seen above when an employee has committed an act of discrimination, harassment or victimisation against a colleague the employer will not always be found to be liable. However, if the discriminatory behaviour is found to be "in the course of employment" there is a secondary line of defence if the employer can rely on the statutory defence under Section 109(4) of the Act.
The statutory defence will remove liability from the employer if
it can show it took "all reasonable steps" to prevent the
employee in question from committing the discriminatory act they
did commit or similar acts. The reasonable steps must be taken
before the act is committed and not in response to a discriminatory
act. Therefore, most reasonable steps take the form of equality,
diversity and inclusion training
, programmes relating to appropriate behaviour at work
and training for managers. To be able to show all reasonable steps
have been taken it is important to be able to demonstrate that the
employee in question had attended training so sign off sheets or
electronic records of participation in training are vital to
support the employer's defence.
When considering whether an employer has taken all reasonable steps to prevent the alleged discriminatory act the court will first look at what steps have been taken and then decide whether there were any further reasonable steps that could have been taken. This means employers should keep up to date on training and consider if they can improve on the processes they already undertake. Helpfully for the employer, in this NHS Trust case it was decided all reasonable steps had been taken and therefore the EAT decided it was not necessary to try and find other steps that could have been taken (and neither did the appellant suggest any).
The facts of this case demonstrated all reasonable steps in the eyes of the Tribunal. Mr H had attended an induction session emphasising the Trust's core values, he underwent annual performance assessment which considered whether he acted in accordance with those values, the values were displayed on posters, and he undertook mandatory equality and diversity training, most recently a few weeks before the incident. Therefore, this EAT decision may be treated as providing a useful benchmark for employers when considering the efficacy of their own EDI training programmes and other measures to prevent discriminatory conduct.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
