The 'reasonable steps' defence to harassment
No employer wants to be brought before an employment tribunal, accused of discrimination or harassment and many take steps to prevent such occurrences happening in the first place, including awareness training. However, it’s important to ensure that such measures are reviewed and maintained. A recent tribunal case has shown that even if an employer has put such steps in place intended to prevent discrimination or harassment, this may not be enough to avoid being found liable for such behaviour if it turns out that those steps are not kept up to date and fit for purpose.
What is the reasonable steps defence?
Employers can be held vicariously liable under the Equality Act 2010 for acts of discrimination or harassment which are committed by an employee of the company during the course of their employment. This also applies even where the employer did not know about those acts.
Where the employer is able to show that they took all “reasonable steps” to prevent the discrimination or harassment from occurring, that can - on occasion - be a potential defence.
In looking at the “reasonable steps” which had been taken by the employer, the tribunal would also consider:
whether further reasonable steps were required,
how effective the steps taken were likely to be when they were implemented, and
how effective those steps have proved to be in practice.
If the reasonable steps defence succeeds, the employer may then not be found liable for the acts of harassment, even if those acts were committed in the course of the perpetrator’s employment.
Could equality and diversity training be seen as a qualifying “reasonable step”?
This point was considered in the recent employment appeal tribunal (EAT) case of Allay v Gehlen.
In this case, the Claimant - a Mr Gehlen - was dismissed from his employer Allay UK Limited for poor performance. Following his dismissal, Mr Gehlen brought a claim through the employment tribunal that he had been regularly subjected to racist comments during the course of his employment by a colleague.
As a result of this, Mr Gehlen sought to bring a claim of racial discrimination against Allay UK Limited on the grounds of racial discrimination and harassment.
The employer responded to this claim by attempting to rely on the “reasonable steps” defence as set out under section 109(4) of the Equality Act 2010, saying that they had, in their belief, taken all reasonable steps to prevent harassment occurring in their workplace, predominantly through the delivery of equality and diversity training to all its employees, including the alleged perpetrator.
In this case however, the EAT found that as the training given to the perpetrator was over a year before the harassment took place, it had become “stale”, as demonstrated by the racist comments and managers failing to report these comments once they became aware.
The tribunal concluded that section 109(4) of the Equality Act 2010 clearly states that all reasonable steps had to be taken for the employer to be able to rely on this defence, and as such the tribunal were not convinced that Allay UK Ltd had taken all reasonable steps to prevent this from occurring.
It was concluded that in this case, “all reasonable steps” should have included employees being given regular refresher training. The tribunal found evidence to suggest that this step would likely have been effective, given the respondent had instructed the perpetrator to undertake a refresher of this training after the claimant had reported the allegations of harassment to them.
As a result of this case, Allay UK Ltd was ordered to pay compensation of £5,030.63 to Mr Gehlen, including interest.
This case is a stark reminder for employers of the importance of ensuring that a proactive approach to prevent harassment and discrimination is taken through implementing all reasonable steps possible and ensuring they are adhered to.
Failure to do so could result in very serious and costly consequences for the employer, even where they were not aware of those acts occurring.
Nkolika Oraka, Solicitor at rradar