Employment tribunal and court judgments | April 2025

The Claimant was an employee of the Trust as a Branch Secretary for UNISON. Mr Hammond was a colleague of the Claimant who had decided that he wanted to cease his UNISON membership. During a discussion between the Claimant and Mr Hammond regarding ongoing deductions of union subscriptions from Mr Hammond’s wages, Mr Hammond became angry and made a remark to Mr Campbell which was capable of amounting to racist abuse.

The Claimant subsequently brought a claim of racial harassment.

The tribunal found that the remark had not been made ‘in the course of’ Mr Hammond’s employment as Mr Hammond’s membership of UNISON was a personal choice and the conversation related to a personal dispute with UNISON. It also found that the Trust had taken all reasonable steps to prevent Mr Hammond from making offensive remarks such as:

• requiring his attendance at an induction session emphasising the Trust’s core values
• requiring him to undergo annual performance assessments which considered whether he acted in accordance with those values;
• the Trust’s values being displayed on posters in areas where Mr Hammond worked; and
• Mr Hammond being required to undertake mandatory equality and diversity training every three years (whereby such training was conducted in small groups).

Mr Campbell appealed, arguing that as the conversation had taken place at work, there was a genuine link between union membership and the workplace and that the Trust should have done more to prevent the situation from happening.

The Employment Appeal Tribunal held the tribunal had reasonably concluded that although the comment had been made on the Trust’s premises during working hours, the conversation had been between a union official and a union member about union membership. The Trust had taken all reasonable steps to prevent the harassment from occurring.

Whilst what amounts to ‘all reasonable steps’ will depend on the particular circumstances, this is a useful case in establishing what a tribunal considers may amount to ‘all reasonable steps’ for the purposes of the statutory defence to discrimination claims. Employers should therefore consider their own anti-harassment & discrimination measures in light of this decision, ensuring that their values and approach to harassment and discrimination are widely known and understood and are supported by regular mandatory training sessions. Further, with the Employment Rights Bill proposing to extend the requirement for employers to take ‘all reasonable steps’ to prevent harassment from third parties as well as employees, it will become increasingly important for employers to implement appropriate training and support measures.

Furthermore, whilst Mr Hammond’s conduct in this case was deemed to fall outside the course of his employment, this should not be interpreted as a blanket rule for any activities that may take place outside of working hours and/or off work premises and each case should be assessed on the basis of the particular circumstances.

Miss P Sullivan applied unsuccessfully for two financial positions with the Council. Following her second rejection, she filed an online crime report to the Police alleging that she had been subjected to a verbal assault during the interview process and also reported issues to the Council’s Chief Executive, its safeguarding helpline, the Care Quality Commission and also her MP regarding, among other things, financial irregularities of a charitable trust (one of whose trustees was a member of the interview panel for both roles she had applied for).

The Council carried out an investigation into Miss Sullivan’s allegations under its internal procedure. The investigation found no evidence of any wrongdoing on the part of council staff and Miss Sullivan’s complaint was not upheld; contrary to its usual practice however, the Council did not offer Miss Sullivan a right of appeal against this decision.

Miss Sullivan complained to an employment tribunal that she had been subjected to a detriment (being the refusal to allow her to appeal the decision in respect of her complaint) because she had made a protected disclosure. Miss Sullivan accepted that her applications had not been rejected because of any protected disclosure, as she did not make the protected disclosures until after she had been told that she had been unsuccessful in her applications.

In bringing her claim, Miss Sullivan argued that the Employment Rights Act 1996 was incompatible with Article 14 (when read with Article 10) of the European Convention on Human Rights, because it protected workers and applicants for NHS posts but not job applicants more generally. The Employment Tribunal dismissed the claim, finding that Miss Sullivan’s status as a job applicant was not equivalent to that of an internal applicant nor an NHS job applicant and further that job applicants were not covered by Article 14. The Employment Appeal Tribunal upheld the tribunal’s decision.

The Court of Appeal considered that whilst being a job applicant was capable of constituting some ‘other status’ pursuant to Article 14 ECHR,  an external job applicant was not in a materially analogous position to internal applicants (the position of someone seeking work being materially different from someone in work) and NHS applicants (for whom whistleblowing protection was specifically extended to ensure applicants were not deterred from raising protected disclosure relating to patient safety and treatment, a concern which does not necessarily apply in other sectors). The Court of Appeal further considered that any difference in treatment was objectively justified.

This case underscores the limited scope of whistleblowing protections for external job applicants in the UK. However, when it comes to protected disclosures, these cases are very fact sensitive and, should you therefore receive any form of protected disclosure from an external job applicant we recommend such disclosures are considered carefully and legal advice is sought as to the next steps.

The case originated from a challenge by For Women Scotland (“FWS“) against the Scottish Government’s statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018. This guidance included transgender women with Gender Recognition Certificates (GRCs) within the definition of “woman” for the purpose of achieving gender balance on public boards. FWS contended that this interpretation was unlawful, arguing that “woman” should be defined strictly based on biological sex – a position with which the Supreme Court has agreed. For a detailed review and commentary on this case, please see our article here.