The Claimant was employed by the First Respondent and worked on a full-time basis as Branch Secretary of a recognised union. The Second Respondent, who was also an employee of the First Respondent, had been a member of the union but had decided that he wanted to leave. During a discussion between the Claimant and the Second Respondent about ongoing deduction of union subscriptions from his wages, the Second Respondent became angry and made a remark to the Claimant which was capable of amounting to racist abuse. The ET found that the remark had been made, but concluded on the evidence that it had not been made “in the course of” the Second Respondent’s employment in terms of section 109(1) of the Equality Act, 2010. It also found that, in terms of section 109(4), the First Respondent had taken all reasonable steps to prevent the Second Respondent from making the remark or from doing anything of that description. The Claimant appealed.

The EAT dismissed the appeal. The ET had not reached its decision under section 109(1) solely on the basis of what was said. Rather, it had considered the whole context and balanced the factors for and against the argument that the comment was made “in the course of” the second respondent’s employment. The weight it attributed to those factors was pre-eminently a matter for the ET. The ET had also correctly considered and applied the terms of the section 109(4) defence.