The employer’s ‘reasonable steps’ defence 



An employer will not be liable for unlawful acts of discrimination or harassment 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 is by proactively cultivating and maintaining an organisational climate in which all workers are respected, and discrimination and harassment are simply not tolerated. Where a trade union is recognised at the workplace, unions play an important part in eliminating unlawful discrimination from workplace policies and individual union reps play a vital role in helping promote and maintain a workplace climate free of discrimination day-to-day.


What are reasonable steps will depend on the particular circumstances of the case, but could include as a minimum:


• implementing an equality policy effectively;



• ensuring all workers are kept aware of it;


• providing and refreshing equal opportunities training to all staff, including management and HR;



• publicising acceptable standards, for example using posters;


• reviewing the equality policy as appropriate; and



• dealing effectively with complaints of discrimination or harassment.



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 discrimination or harassment.