Union official racially abused by employee during dispute over union subscriptions. Appeal against tribunal’s finding that comments were not made “in the course of employment” and that employer had statutory defence of taking “all reasonable steps” to prevent discrimination.

Background

The appellant, employed as Branch Secretary of UNISON, was racially abused by the second respondent (a domestic assistant), who called him a “fucking monkey” during a heated discussion about ongoing deduction of union subscriptions. The incident occurred on the employer’s premises during the second respondent’s break. The Employment Tribunal found the employer not vicariously liable as the comment was not made “in the course of employment” under section 109(1) of the Equality Act 2010. The tribunal also found that the employer had taken “all reasonable steps” to prevent discrimination.

Judgment

The Employment Appeal Tribunal dismissed the appeal. It held that the tribunal had correctly balanced all relevant factors when determining whether the comment was made “in the course of employment”. The tribunal was entitled to conclude that the conversation related to a personal dispute about union membership rather than employment matters. On the “reasonable steps” defence, the EAT found that the tribunal had adequately considered whether the employer had taken “all reasonable steps” to prevent discrimination, noting that mandatory equality training had been provided just days before the incident.

Endnote

This judgment reinforces the principle that tribunals, as industrial juries, have considerable latitude in determining whether conduct occurs “in the course of employment” per Jones v Tower Boot Company Limited [1997] ICR 254. The case illustrates the challenges in establishing vicarious liability for discriminatory comments made in workplace settings but relating to matters peripheral to actual employment duties.

Read the full judgment: Campbell v Sheffield NHS Trust [2025] EAT 42