John J Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Anor

Whether discriminatory conduct occurred in the course of employment is a fact-sensitive question for the employment tribunal. The tribunal must apply the ordinary meaning of the statutory words to the whole context. A connection with employment, workplace location and working time may be relevant, but none is conclusive.

An appellate challenge to the tribunal’s evaluative weighing of those factors must be one of perversity. For the employer’s defence under section 109(4) of the Equality Act 2010, the tribunal must determine whether the employer proved that it took all reasonable steps to prevent the act or conduct of that description. An express two-stage formulation is unnecessary where the reasons demonstrate that conclusion and identify no further reasonable preventative step.

The appellant, a full-time branch secretary of UNISON employed by the first respondent, alleged that the second respondent, another employee, racially harassed him during a workplace discussion about union-subscription deductions.

The employment tribunal accepted that the second respondent used the impugned expression. It dismissed the claims because the exchange concerned a personal dispute about union membership and was not in the course of employment. Alternatively, it held that the first respondent had established the all-reasonable-steps defence.

The appellant appealed, contending that the tribunal had failed to assess the whole context under section 109(1) and had failed to apply the required approach to section 109(4) of the Equality Act 2010.

1. Appeal dismissed. The tribunal had considered the whole factual context when deciding whether the abusive comment was made in the course of employment. It did not focus solely on the words spoken or wrongly disregard the incident’s workplace and employment-related connections.

2. Under section 109(1) of the Equality Act 2010, the relevant question is whether the conduct was in the course of employment, using the ordinary meaning of those words. It is not enough that the conduct would not have occurred but for the employment relationship. The assessment is for the tribunal as an industrial jury, applying the statutory language to all the circumstances.

3. The tribunal was entitled to place weight on the fact that union membership was voluntary and that the conversation concerned the second respondent’s personal dispute with the union over subscription deductions. Its conclusion was open to it. The appellant had disavowed perversity, which was the only available basis for challenging that factual evaluation. The reasoning in [1997] ICR 254 supported that conclusion.

4. Although unnecessary to the result, the tribunal had also correctly upheld the defence in section 109(4). It had identified the statutory requirement of all reasonable steps and made a positive finding that the employer had discharged the burden. Recent mandatory equality and diversity training, alongside the other preventative measures, justified that finding. No additional reasonable preventative steps had been identified in the evidence or submissions.

• Employment Appeal Tribunal: dismissed the appeal in [2025] EAT 42.

• Employment Tribunal, Sheffield: dismissed the claims following a hearing in September 2022, by a judgment dated 14 October 2022.