Article / 10 Mar 2021

Discrimination and harassment: 5 reasons an employer’s “reasonable steps” defence might fail

Insight shared by:

Gateley Legal

Claims for discrimination and harassment in the workplace are on the rise and an adverse finding can have devastating reputational and financial consequences for any employer. Employers should therefore be taking all necessary steps to protect staff and prevent such incidents happening at work. 

Employer liability for acts of employees

Employers need to remember that they are potentially liable for acts of discrimination and harassment carried out by their staff.  Anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval.  

That being said, an employer may not always be liable for an employee’s acts. An employer may have a potential defence to a claim of discrimination or harassment if it can show that all reasonable steps have been taken to prevent the discrimination or harassment occurring in the first place. 

“Reasonable steps” defence

In order to succeed with a "reasonable steps" defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.  

The courts will take a two-stage approach to assessing what is reasonable, looking first at what steps the employer took to prevent discrimination or harassment occurring, and then considering whether there were other reasonable steps that it could have taken.

Reasonable steps will include:

  • Having and implementing an equal opportunities policy and an anti-harassment and bullying policy.
  • Regularly reviewing those policies.
  • Making all employees aware of the policies and their implications.
  • Training managers and supervisors in equal opportunities, discrimination and harassment issues.
  • Taking effective steps to deal with complaints, including appropriate disciplinary action.

Unfortunately, even though many employers do provide equality and diversity training and do have equality and diversity policies in place, the “reasonable steps” defence rarely succeeds in practice. 

Why might a reasonable steps defence fail?

We set out below what we think are the five most common reasons why employers unsuccessfully run this defence:  

  1. The quality and depth of the training provided to staff is insufficient.

    If training involves no more than a very basic overview of the issues with an instruction not to discriminate, or is simply a tick box exercise to say that all employees have read an Equal Opportunities Policy; it will not be enough to persuade an Employment Tribunal that all reasonable steps have been taken. Employers need to demonstrate that detailed training has been given to all staff, providing a thorough explanation of what could amount to discriminatory conduct or harassment, the standards of conduct expected, and the consequences of failing to adhere to those standards. 
  2. The training happened far too long ago. 

    Even if detailed training is provided, it will not be enough to successfully run the defence if it was given so long ago that it has become ineffective, or that employees have forgotten it. Training needs to be repeated on a regular basis so that it does not become “stale”, as was the finding in the recent case of  Allay (UK) Limited v Gehlen. Running regular refresher sessions will also help to demonstrate the importance that the employer places on such issues. 
  3. The policies are inadequate. 

    Employers often have policies in place confirming that the employer promotes equal opportunities and diversity, but those policies make little reference to discrimination or harassment issues.  Appropriate policies must be in place and clearly communicated to staff, with sufficiently detailed guidance on an employer’s approach to discrimination and harassment issues.  
  4. The policies are not enforced in practice. 

    Even if detailed training has been given and the right policies are put in place, they must be followed in practice. Employers must take appropriate action whenever faced with any allegations of harassment or discriminatory behaviour.  Staff need to be confident that the employer will take appropriate action if anything happens to them at work and perpetrators need to know that such behaviour will not be tolerated.
  5. Further steps could have been taken. 

    Even if an employer runs regular training sessions and has communicated the importance of its equality policies, it still needs to think about whether there are further steps that could be taken. The defence will fail if a Tribunal concludes that further steps could reasonably have been taken to prevent discrimination or harassment taking place. 

Are your current policies and practices up to date?

Given the increase in the number of discrimination and harassment claims in the Employment Tribunal, it would be extremely wise for employers to review and, if necessary, update workplace policies and practices to ensure that they are up to date and reflect best practice. 

Employers should also ensure that appropriate training on matters such as equal opportunities, bullying, harassment and discrimination occur on induction, and that adequate refresher training sessions are scheduled for all staff on at least an annual basis. 

The Gateley Employment Team can help businesses to review current policies and practices to ensure that they are up to date and reflect best practice. We can also assist with providing bespoke training on equal opportunities, bullying, harassment and discrimination.

Please do not hesitate to contact a member of the Gateley Employment Team if you would like to discuss matters further.