What is the 'all reasonable steps' defence?
The 'all reasonable steps' defence may apply where one employee has committed an act of discrimination, harassment or victimisation against another. Under the Equality Act 2010 (the Act), anything done by an employee in the course of their employment is to be treated as done by the employer. This makes the employer vicariously liable for the misdeeds of their employees, regardless of whether they were done with the employer’s knowledge or approval.
However, the Act also provides a statutory defence for employers if they have taken all reasonable steps to prevent the employee from doing the discriminatory act. Anecdotal evidence from a report by the Women and Equalities Select Committee suggests this defence is rarely used, partly due to a lack of certainty around what amounts to all reasonable steps.
Given the introduction of last year's statutory duty to take 'reasonable steps' to prevent sexual harassment and the current Government's intent, via the Employment Rights Bill (the Bill), to extend that duty to be one to take all reasonable steps, some case law on the point is welcome. In Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Anor, the employer was able to successfully demonstrate that all reasonable steps to prevent racial harassment had been taken. (Note: this case relates to the statutory defence rather than the duty introduced last year to take reasonable steps to prevent sexual harassment).
Background
The claimant was a black employee who worked on a full-time basis as Branch Secretary of a union recognised by the employer. Another employee, Mr Hammond, had changed his mind about being a union member and went to request a refund of union subscriptions from the claimant. When the claimant refused the request, Mr Hammond made a remark capable of amounting to racist abuse. When a claim of harassment was made to an Employment Tribunal it was held, firstly, that although the remark had been made it was not, on the evidence, made 'in the course of' the claimant's employment. Secondly, the tribunal held that the employer had taken all reasonable steps to prevent the employee from making the racist remark, or from doing anything of that description.
The Employment Appeal Tribunal dismissed an appeal against these findings. They acknowledged that, whilst a different tribunal may have reached a different conclusion on whether the conversation between the claimant and the union representative had taken place in the course of the claimant's employment, there had been no error in the tribunal's approach to the issue. The tribunal had also been entitled to conclude that the employer had taken all reasonable steps to prevent what had happened.
In this case, the steps taken by the employer included:
- An induction session covering acceptable behaviour at work and the employer’s core values of dignity, trust and respect;
- Annual performance reviews assessing whether employees acted in accordance with the core values;
- Posters displaying the core values in work areas; and
- Mandatory equality and diversity training every three years.
Comment
The recently updated Equality and Human Rights Commission's technical guidance makes clear that what will amount to all reasonable steps will vary from case to case. However, basic steps would include having appropriate policies that are regularly reviewed, ensuring employees are aware of those policies, assessing the risk of harassment and discrimination and taking steps to minimise identified risks, providing relevant training and refresher courses, maintaining an open-door approach to any ideas proposed by employees and ensuring complaints are dealt with effectively. Retaining evidence of the steps taken is also essential.
The future
We are yet to see any reported cases arising from the new duty to take reasonable steps to prevent harassment in the workplace. Not only does the Employment Rights Bill extend this duty to take all reasonable steps, it also makes employers directly liable for third-party harassment where the harassment takes place in the course of employment and the employer did not take all reasonable steps to prevent it.
While this case provides one example of when all reasonable steps have been taken, it is anticipated that the regulations required to implement the changes set out in the Bill will further clarify what is required from employers.
On 8 May we are running a free webinar on the equality and harassment provisions of the Employment Rights Bill, including looking at the proposed Equality (Race and Disability) Bill. More information and booking details can be found here.
