The employer’s liability 





Under the EA 10, an employer is legally liable for all unlawful acts by employees done in the course of employment, unless the employer can show that they took all reasonable steps to prevent the discrimination (section 109(1), EA 10). The law treats these acts of discrimination as if they were done by the employer, whether or not they were done with the employer’s knowledge or approval (section 109(3), EA 10). 





This liability has its origins in the case of Raymondo Jones v The Tower Boot Company Limited [1997] IRLR 158. The case concerned a young worker of mixed race in his first job, subjected to appalling levels of racist abuse by co-workers. The Court of Appeal confirmed that discrimination during the course of employment is always the employer’s responsibility unless reasonable steps have been taken to stop it. It is never an excuse that the employer would not have condoned the behaviour if they had known about it. This ruling formed the basis of the employer’s “reasonable steps” defence, now found in section 109(4), EA 10. This says that in legal proceedings against an employer, it is a defence for the employer to show that they took “all reasonable steps” to prevent the acts occurring. 





To provide a defence, steps must have been taken before the discrimination, harassment or victimisation took place. In other words, the employer must show that they took proactive steps to prevent discrimination happening in the first place. Steps taken afterwards, such as investigating the complaint or dismissing the offender, will generally not help (Haringey LBC v Al-Azzawi [2000] UKEAT158, Fox v Ocean City Recruitment Limited [2011] UKEAT/0035/11/JOJ).





From a trade union perspective, the reasonable steps defence is a very important tool when it comes to persuading employers to embed equality issues in the workplace. This is because in practice, the only safe way for an employer to protect itself from liability for discrimination is by cultivating an organisational climate at all levels in which all workers are respected, and by spelling out that discrimination and harassment are simply not tolerated. 



What are reasonable steps will depend on the particular circumstances of the case, but guidance from the EHRC Code of Practice suggests as a minimum:



• implementing an equality policy effectively;




• ensuring all workers are kept aware of it;




• providing and updating equal opportunities training for all staff, including management and HR;





• publicising acceptable standards, for example, using posters;




• reviewing the equality policy from time to time; and





• dealing effectively with complaints of discrimination or harassment.





The statutory bar is a high one. The 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. … A step does not have to be effective to be reasonable”. In other words, an employer cannot avoid liability by suggesting that taking action would not have prevented the discrimination or harassment (Canniffe v East Riding of Yorkshire Council [2000] IRLR 555).



An individual manager can be held personally liable for their own acts of discrimination at work even if their employer is not liable because they took all reasonable steps to prevent it (section 110(2), EA 10, Barlow v Stone [2012] UKEAT/0049/12/MAA).


In December 2018, the government promised to consult on a new statutory Code of Practice, to explain in more detail what amounts to “reasonable steps” in the context of sexual harassment (see box on page 235).