The "all reasonable steps" defence to harassment claims

The "all reasonable steps" defence to harassment claims

The Employment Appeal Tribunal has ruled that an employer had taken "all reasonable steps" to prevent an employee's racial harassment and so was not vicariously liable for the perpetrator's act. What steps had the employer taken?

Racist abuse leads to harassment claim

The Equality Act 2010 provides that you can be liable for an employee's act of unlawful harassment (or discrimination) if the act is committed "in the course of [their] employment". However, you have a statutory defence if you can show you took "all reasonable steps" to prevent them from committing the act or anything of that description.

In Campbell v Sheffield Teaching Hospitals NHS Foundation Trust, also Hamid v Trust, Mr Campbell (C), who is Black, was employed by the Trust and was also branch secretary of trade union UNISON. Mr Hamid (H), a white employee of the Trust, went to see C in his office about an issue relating to the deduction of subscriptions from his wages after he had terminated his UNISON membership. C refused to give H a refund. H then made a racial comment calling C a "f***ing monkey". C brought a racial harassment claim but the employment tribunal ruled that the Trust was not liable for the racist comment because it was not acting "in the course of employment" when he made it and, in any event, the Trust had taken "all reasonable steps" to prevent the comment. C appealed to the Employment Appeal Tribunal (EAT).

Not in the course of employment

The EAT upheld the tribunal's ruling that the Trust was not liable for the racist comment because H was not acting in the course of his employment. Although the comment had been made during H's working day on the Trust's premises, H's membership of UNISON was a matter of personal choice, and the conversation related to a personal dispute H had with UNISON concerning deduction of subscriptions.

All reasonable steps taken

The EAT also went on to uphold the tribunal's ruling that, the alternative, the Trust had taken all reasonable steps to prevent the harassment and so could rely on the statutory defence. In particular, H had: (1) attended an induction session on acceptable behaviour at work which emphasised the Trust's core ("PROUD") values, (2) undergoing annual performance assessment which included consideration of whether the individual acted in accordance with PROUD values; and (3) undertaking mandatory equality and diversity training every three years (the most recent of which took place only days before the incident). These were conducted in a small group with a PowerPoint presentation. PROUD values were also displayed on workplace posters.

Since no other reasonable steps which could have been taken had been suggested in the evidence referred to in submissions, it had been reasonable for the tribunal to conclude that the Trust had taken all reasonable steps.

Tip. When considering whether your own anti-harassment measures are sufficient to enable you to rely on the statutory defence, this case serves as a useful starting point. Having a dignity at work policy will never be enough on its own.

Tip. Ensure training is conducted regularly. In this case, although training was only every three years, the latest session had taken place days before the incident. Had it taken place nearly three years earlier, the result could well have been different.

The employer had held an induction with the employee which emphasised its core values, conducted annual performance assessments which considered compliance with those values and held mandatory equality and diversity training. The core values were also displayed on posters. Consider these against your own anti-harassment steps.