What is the ‘all reasonable steps’ defence in discrimination harassment claims and when can an employer rely on it?
Employers will be liable for the discriminatory acts of their employees in the course of employment unless they have taken ‘all reasonable steps’ to prevent the wrongdoing.
In Employment Tribunal claims, a Tribunal will consider the reasonableness of an employer in terms of how they have acted and the steps they have taken to avoid and/or prevent discrimination of their employees.
What would a Tribunal consider?
Whether all reasonable steps have been taken is fact-specific and the hurdle is a high one. The high threshold is designed to encourage employers to take significant and effective action to combat discrimination on an ongoing basis.
Simply having policies in place, a zero tolerance attitude to enforcing those policies and a supportive ‘speak up’ culture has been shown to be insufficient to rely on the defence (Fischer v London United Busways Ltd ET/2300846/2021).
So, how does the Tribunal determine whether the bar is reached?
There are three stages to considering whether the employer’s defence is made out:
1. Identifying any steps taken by the employer to prevent the discrimination from taking place.
2. Considering whether the steps taken were reasonable.
3. Considering whether any other steps should reasonably have been taken.
Each step is analysed to determine how it is likely to prevent harassment and whether there is anything more the employer could have done in the circumstances.
Examples of reasonable steps:
To successfully argue the ‘all reasonable steps’ defence, the steps must be taken before the act of discrimination or harassment occurred. Here are a few proactive steps you could consider taking in your workplace:
Ensure you have an up to date and comprehensive equal opportunities policy and anti-bullying and harassment procedure in place. Comply with it and apply it in practice. The mere existence of a policy is not enough in itself. It must be regularly reviewed and updated.
Staff need to be aware that the policy applies to them both in terms of the protection it affords them and their compliance with it. For example, a policy referring to ‘employees’ only may not make clear to agency workers that it applies to them.
Policies should reflect that inclusion is just as important as equality. The tone of the policy should make clear that the skills, experiences, and perspectives of all employees will be celebrated and tolerated.
4. Communication and Training:
Policies must be regularly communicated to the workforce and accessible in areas that the workforce spend a lot of time. The Tribunal has even gone so far as to suggest that policies could be attached to digital payslips to draw attention! Regular, refreshed training and communications emphasising the importance of equality, diversity and inclusion is important and should include education on the correct language and terms used regarding relevant minority groups.
If your training needs refreshing or you have become aware that it has been ignored by your workforce, then you must take action or risk being unable to rely on the ‘all reasonable steps’ defence.
5. Employee representative groups:
Those comprising minority groups can be encouraged or at least enabled to establish representative groups. This list is in no way exhaustive – and can certainly not guarantee the ‘all reasonable steps’ defence being successful – but provides a helpful starting place.
The burden of proof falls on the employer to show ‘all reasonable steps’ have been carried out, so it is important for employers to give some consideration to these things proactively, before a claim arises.