How to meet the ‘reasonable steps’ defence

15th March 2021

How to meet the ‘reasonable steps’ defence

Harassment is defined as unwanted conduct, related to a protected characteristic, such as sex, race or religious belief, by an employee which violates another employee’s dignity or which causes intimidation, hostility, or humiliation, or which otherwise is offensive or degrading to the other employee. 

Employers are responsible for any harassment by any employee whilst in the course of their employment if they cannot prove ‘all reasonable steps’ were taken to prevent harassment from occurring.

In the case of Allay v Gehlen, Mr G, an Indian employee, worked as a senior data analyst for 11 months and regularly endured racial discrimination and personal comments about the colour of his skin and the make of his vehicle – a Mercedes – which the perpetrator (a Mr P) said “all Indians” drove. Mr P also said he should be working in a corner shop and questioned why he was residing in the country.

Mr P saw his actions as ‘banter’ and, although another colleague and two managers witnessed Mr P’s behaviour, it was largely ignored, except for one manager giving only a weak reprimand to Mr P. Mr G instigated a harassment claim which the employer defended on the grounds there were policies in place dealing with equal opportunities together with anti-bullying/harassment.  Furthermore, it said that employees had been trained on the policies. On this basis, therefore all reasonable steps had been taken to safeguard their employees and prevent harassment.

The employment tribunal upheld Mr G’s harassment claim. Although the employer had measures in place and employees had been trained, the standard was inferior and the training, which had been delivered some 6 years previously, needed updating.

The failure of one colleague and two managers to take any action regarding Mr P’s behaviour demonstrated that further training was needed. The employer had not, therefore, taken all reasonable steps to avoid discrimination. The Employment Appeal Tribunal (EAT) agreed there were further reasonable steps that should have been taken, thus causing the defence to fail.

It did not matter that taking those steps might not have prevented the harassment from occurring. The EAT noted additional training had subsequently been given to Mr P which wouldn’t have been provided had they believed it would be ineffective.

So, a lesson learned here. Employers should not assume that having standard policies, practices and procedures together with training is all that is required to meet the ‘all reasonable steps’ defence. Good quality policies and practices must be in place and adhered to at all times. Training must also be of a high standard and include annual refreshers.

The courts noted here that the purpose of any training had not been accomplished as employees both made and ignored racially discriminatory comments. Priority has to be given to ensuring protection for all employees from harassment and, in order to avoid liability, employers should review their policies and practices regularly to establish if any further reasonable steps can be taken to achieve that.

If you would like any information on policies and procedures, and/or training, that Gotelee can provide, please contact Marie Allen on 01473 298133 or [email protected].

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