Under discrimination law, an employer is liable not only for its own discriminatory acts, but also for those carried out by its workers ‘in the course of their employment’. However, an employer will have a defence to this vicarious liability if it has taken ‘all reasonable steps’ to prevent discrimination from occurring. The EAT has recently considered whether an employer was liable for a racist comment made in an argument between two colleagues about trade union business.
The EAT were considering a race discrimination claim brought by C. Although C is employed by an NHS Trust, he is engaged full-time on trade union duties for the Trust’s recognised trade union and performs those duties from a union office on hospital grounds. H worked as a domestic assistant with the same Trust. He visited the trade union’s on-site office (which was a few hundred metres away from the ward where he worked) during his break. H was unhappy that, despite seeking to leave the trade union, his trade union dues were still being deducted from his pay and went to the union’s office to demand a refund. This led to a heated discussion during which, in anger, H (who is white) made a racist comment towards C (who is black).
Following this incident, C unsuccessfully brought race discrimination claims against both the Trust and H. The employment tribunal...
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