Mr P McCue v Civil Nuclear Police Authority (Scotland : Religion or Belief Discrimination) -[2022] UKET 4111346/2021- (12 April 2022)

Key Facts

Issues

• The tribunal assessed whether the respondent had taken all reasonable steps to prevent religious harassment, including policies, training, and responses to previous incidents, to establish a defense under Section 109(4) of the Equality Act 2010.
• The tribunal considered whether the three incidents constituted a single continuing act of discrimination, which would allow the claim to be brought within the three-month time limit from the last incident rather than each individual incident.
• The tribunal examined whether the incidents occurred during working hours or in the workplace, determining if the respondent would be vicariously liable for the actions of their employees.
• The tribunal determined whether the incidents were carried out by employees or agents of the Civil Nuclear Police Authority, which would make the employer vicariously liable for their actions.

Holdings

• The Tribunal found the claimant's claims regarding incidents on 1 June 2020 and 17 August 2020 to be ill-founded, as the respondent had demonstrated it took all reasonable steps to prevent religious harassment.
• The Tribunal found the claimant's claim regarding the incident on 30 June 2021 to be well-founded, as the respondent did not satisfy the Tribunal that all reasonable steps had been taken to prevent religious harassment.

Legal Principles

• The employer bears the burden of proving it took all reasonable steps to prevent harassment. The Tribunal considered whether the respondent had discharged this burden under Section 109(4) of the Equality Act 2010.
• The case established that the employer is vicariously liable for the acts of its employees in the course of employment. The Tribunal determined whether the acts of harassment occurred in the course of employment, making the employer liable under Section 109(1) of the Equality Act 2010.
• The Tribunal applied the balance of probabilities standard to determine whether the employer's actions met the 'reasonable steps' defense. This standard is used in civil cases to determine the likelihood of facts.

Precedent Name

• Forbes v LHR Airport Ltd
• Lyfar v Brighton and Sussex University Hospitals Trust
• Canniffe v East Riding of Yorkshire Council
• Hendricks v Commissioner of Police of the Metropolis
• Robinson v Surrey
• South Western Ambulance Service NHS Foundation Trust v King
• Reynolds v CLFIS (UK) Ltd
• Al-Azzawi v Haringey Council
• Mahood v Irish Centre Housing Ltd
• Allay (UK) Ltd v Gehlen

Cited Statute

• Energy Act 2004
• Police (Conduct) Regulations 2012
• Equality Act 2010
• Limitation Act 1980

Judge Name

• D. Hoey
• A. McFarlane
• J. Lindsay

Passage Text

• The Tribunal also takes into account the fact that there was no evidence of any further sectarian incidents following the bespoke training. That suggests the bespoke training was effective. There is a good chance that had the session taken place within around 6 months of the second incident, the third incident could have been avoided.
• The unanimous judgment of the Tribunal is that the claimant's claim that he had been subject to unlawful religious harassment in respect of incidents that occurred on 1 June 2020 and 17 August 2020 (in terms of section 26 of the Equality Act 2010) is ill founded, as while the claims had been made in time and were acts for which the respondent was liable, the respondent had satisfied the Tribunal that all reasonable steps had been taken such as to entitle it to a defence in terms of section 109(4) of the Equality Act 2010.
• The unanimous judgment of the Tribunal is that the claimant's claim that he had been subject to unlawful religious harassment (in terms of section 26 of the Equality Act 2010) for which the respondent is liable, in relation to the incident that occurred on 30 June 2021 is well founded (the respondent nothaving satisfied the Tribunal that all reasonable steps were taken pursuant to section 109(4) of the Equality Act 2010).