The employer’s ‘reasonable steps’ defence

An employer is not liable for unlawful acts committed by an employee if the employer can show it took “all reasonable steps” to prevent the employee acting unlawfully (Section 109(4) EA10).

To rely successfully on this defence, the employer must point to steps taken before the harassment or discrimination took place. Steps taken afterwards, such as investigating the complaint and dismissing the offender, will not help (Haringey LBC v Al-Azzawi [2000] UKEAT158, Fox v Ocean City Recruitment Limited [2011] UKEAT/0035/11/JOJ).

This means that the only practical way for an employer to protect itself from a claim is by acting proactively to cultivate and maintain an organisational climate in which all workers are respected and discrimination and harassment are simply not tolerated in the first place.

What is reasonable obviously depends on individual circumstances, but reasonable steps could include:

• implementing an equality policy;

• ensuring all workers are aware of it;

• providing equal opportunities training;

• reviewing the equality policy as appropriate; and

• dealing effectively with employee complaints.

The bar is a high one. The Code says that: “An employer would be considered to have taken all reasonable steps if there are no further steps that they could have been expected to take. In deciding whether a step is reasonable, an employer should consider its likely effect and whether an alternative step could be more effective. However, a step does not have to be effective to be reasonable”. In other words, the employer cannot avoid liability by suggesting that taking the steps would not have prevented the harassment.

Equality Act Code of Practice (www.equalityhumanrights.com/sites/default/files/documents/EqualityAct/employercode.pdf)