REASONABLE STEPS TO PREVENT HARASSMENT
Reasonable steps to prevent harassment: a lower bar than expected?
While there is a lot of chatter in the employment space on the introduction of the obligation for employers to take “reasonable steps” to prevent sexual harassment last year (or even “all reasonable steps” in the case of the incoming Employment Rights Bill), it is worth recognising that this was already a test set down in law. The Equality Act 2010 includes an employer’s defence to discrimination; under this defence, where an employer can show a Tribunal that it has taken “all reasonable steps” to prevent discrimination, the employer is not liable for the acts done. This test is now being carried through the Employment Rights Bill, adding further financial liability for employers who are found not to have taken “all reasonable steps” to prevent harassment, including for acts taken by third parties.
So, what does “all reasonable steps” to prevent harassment mean?
In the recent Employment Appeal Tribunal case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & Hammond, the Appeal Tribunal recognised that there were two strands to the test:
Firstly, considering what steps that the employer had taken to prevent harassment; and
Considering whether there were any further preventative steps that the employer could have taken that were reasonably practicable.
This case involved a racially abusive remark made by an employee of the Respondent (a union official) to the Claimant (a union member) during a discussion about union subscription fees.
“…the Tribunal recognised that the parties had not presented any evidence or made any arguments in submissions regarding the further steps the employer could have taken to prevent harassment.”
In relation to the first part of the test, the Tribunal accepted that the employer had taken the following (and incredibly common) steps to prevent harassment:
Conducting induction sessions that emphasised acceptable behaviour and core values.
Incorporating annual performance assessments that covered adherence to these core values.
Displaying posters in the workplace that highlighted the core values.
Providing mandatory equality and diversity training every three years, with a recent session held before the incident.
When it came to the second part of the test, the Tribunal recognised that the parties had not presented any evidence or made any arguments in submissions regarding the further steps the employer could have taken to prevent harassment.
On this basis, the Tribunal concluded that the measures the Respondent had taken must be considered adequate to meet the statutory defence, because no other steps had been identified.
What are the key takeaways?
The bar seems to be lower than we previously thought. Even standard efforts to prevent harassment can be sufficient (such as policies and training) if documented and implemented.
In order for a Tribunal to find that not all reasonable steps have been taken, the Tribunal will need to hear specific evidence on what else could have been done, and it will be open to employers to give evidence regarding why those other steps aren’t reasonably practicable.
In the absence of that evidence, the Tribunal seems to have an employer-friendly default position.
With this in mind, our practical tips for employers are:
Ensure that practical training and policies are in place to document the conduct expected of your workforce.
In this case, a 3 year gap between mandatory training would likely have been an issue if it hadn’t been rolled out just before the incident took place. Consider how regularly to conduct training to minimise the risk in those interim periods, based on your workforce turnover.
Zero-tolerance policies for sexual harassment will still be key, especially ensuring that these are properly enforced. Employers who can’t stand behind their policies in practice will likely struggle.
If there are steps you can easily take (such as implementing anti-harassment signage) then this will be an easy way to demonstrate meeting this obligation. It will be difficult to justify why an employer hasn’t taken such easily available measures when scrutinised.
If you would like to talk to anyone about appropriate measures, please do contact one of the team.
