Nathan May-O'Brien is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan considers how an employer can establish that it took "all reasonable steps" to prevent discrimination.
Background
Employers can be held liable for the discriminatory actions of their employees. However, employers will have a defence from liability if they can establish that they took “all reasonable steps” to prevent the discriminatory action in question.
Historically, it has been very difficult for employers to succeed in running this defence, however, the recent decision of the Employment Appeal Tribunal in Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Another is an example of an employer being able to evidence that it took “all reasonable steps.” The case concerned an employee of the Trust making a racist comment to another employee (a union official) during an argument over union membership subscriptions. The employee subjected to this comment brought claims against both the Trust and the employee that made the racist comment.
After consideration, it was found that the argument did not take place “in the course of employment” (as it related to a personal dispute with the union). Importantly, in the alternative, it was also found that the Trust had taken “all reasonable steps” to prevent this harassment from taking place. These steps included an induction on the Trust’s “core values” and annual performance reviews assessed against those values. Moreover, the employee who had made the comment had attended mandatory equality and diversity training two weeks prior to the incident.
Comment
Whether or not an employer has taken “all reasonable steps” will depend on the facts and, particularly, whether a claimant can make a persuasive argument that additional steps should have been taken. In particular, this case highlights that an employer will be more likely to successfully argue that it took “all reasonable steps” if it ensures that its staff are trained on equality and discrimination issues, if its policies are robust and if staff are regularly reminded of the ethos of a company in terms of combating discrimination and harassment in the workplace.
Changes expected to come into force by 2026 at the latest will mean that employers could be found liable for harassment of their employees by third parties (such as clients) unless they take “all reasonable steps” to prevent the harassment from taking place. In addition, the existing duty to prevent sexual harassment in the workplace generally will be strengthened so that the duty is to take “all reasonable steps”. One would expect that the question of whether “all reasonable steps” were taken will differ depending on the type of harassment in question and whether the alleged conduct is perpetrated by an employee or a third party, but these changes illustrate that employers will need to consider what steps they currently take to prevent discrimination and harassment in the workplace and whether there are risks of employees being subject to such treatment.
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