In brief
The Employment Tribunal (ET) held that the Hertfordshire Partnership University NHS Foundation Trust (“Trust”) was not vicariously liable for harassment related to race conducted against an agency worker by the Trust’s employee (“Second Respondent”) because it had taken all reasonable steps to prevent the harassment. This was largely because they had provided diversity and equality training to the Second Respondent, and had in place detailed and easily accessible diversity and equality policies.
Key takeaways
- This case reaffirms the importance of ensuring appropriate and targeted policies, and training are in place, which are regularly reviewed and made readily available to employees. It also serves as a reminder to employers to ensure that appropriate investigations and disciplinary action is taken to address incidents of discrimination and/or harassment.
- In other cases, training and policies have not been sufficient to make out the reasonable steps defence. Here, the Trust took decisive action in demoting the employee who conducted the harassment. This may have influenced the ET, insofar as it demonstrates how seriously the Trust took the conduct in question. As there had been a similar incident in the past, which had not been the subject of a complaint, the ET may also have concluded that the extent to which the employer could influence the behaviour via training was limited.
In more detail
The Claimant was a Nigerian agency health care assistant who carried out shifts at premises operated by the Trust.
During a conversation at work, the Second Respondent compared the Claimant’s hair to the coronavirus. The Claimant raised the incident with the Trust who, following an investigation, took disciplinary action against the Second Respondent, finding that her actions amounted to gross misconduct and demoting her position from a Band 7 to Band 5 nurse. It is worth noting that another, similar allegation had been made against the Second Respondent the previous year and this was considered as part of the investigation.
The Claimant issued a claim for harassment related to race against the Second Respondent. She also brought a claim against the Trust on a vicarious basis.
Under S.109 Equality Act 2010 (EqA), anything done by an individual in the course of their employment (or in this case their agency work) must be treated as also done by the employer (or principal), whether or not with the employer’s (or principal’s) knowledge or approval.
However, there is a defence to this where the employer (or principal) can show that it took all reasonable steps to prevent the individual from doing the relevant act or from doing anything of that description.
The claim succeeded against the Second Respondent but not against the Trust. The Trust had provided training (and refresher training) to the Second Respondent on diversity and equality and had appropriate policies in place. In particular:
- An Equal Opportunities policy which set out the Trust’s zero tolerance approach to discrimination and its commitment to take reasonable steps to prevent it. The ET noted that the Second Respondent was aware incidents of discrimination could amount to a disciplinary offence; and
- A Harassment and Bullying Policy, which set out clear examples of behaviour which constituted harassment (such as “insults”, “offensive language and gestures”, “inappropriate jokes” and “ridiculing and undermining behaviour”).
Consequently, the ET determined there was nothing more the Trust could reasonably have done to prevent the incident.
The ET also emphasised that the Trust had demonstrated it had taken the matter seriously by demoting the Second Respondent following a disciplinary investigation into the incident of harassment.
Ajiga v. Hertfordshire Partnership University NHS Foundation Trust
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Georgina Moore, Associate, has contributed to this legal update.