The employer’s ‘reasonable steps’ defence 


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


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


In practice this means that the only safe way for an employer to protect itself from liability for discrimination or harassment by its employees is by acting proactively to cultivate and maintain an on-going organisational climate in which all workers are respected, and discrimination and harassment are not tolerated.


What is reasonable depends on individual circumstances, but reasonable steps could include as a minimum:


• 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 statutory bar is a high one. The EA Code of Practice says: “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, an employer cannot avoid liability by suggesting that taking the steps would not have prevented the harassment.