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The employer’s liability for harassment
[ch 2: pages 29-31]Under the EA 10, the employer is liable for all unlawful acts committed by their employees in the course of employment, whether or not the employer knows about these acts. It does not matter that the employer did not condone or authorise the acts complained of. Here is the leading case:
Raymondo Jones was a 16-year-old worker in his first job. Of mixed race, he joined a workforce that had never before employed anyone from an ethnic minority. His co-workers subjected him to appalling levels of racist abuse and degradation. He was called racially offensive names such as “chimp” and “monkey”, two employees whipped him on the legs with a piece of welt and threw metal bolts at his head, one burnt his arm with a hot screwdriver and later they grabbed his arm and tried to put it on a lasting machine. After four weeks he left the job. His employers tried to argue that they were not responsible, because they would never have condoned or authorised such behaviour by their staff. The Court of Appeal held that this was irrelevant. In an important ruling, the Court confirmed that discrimination that takes place during the course of employment is always the employer’s responsibility, unless reasonable steps have been taken to stop it.
Raymondo Jones v The Tower Boot Company Limited [1997] IRLR 158
The Tower Boot case led to the employer’s “reasonable steps” defence, now found in section 109(4) of the EA 10. This says that an employer can only escape liability for unlawful acts of discrimination, harassment or victimisation by an employee if the employer can show it took “all reasonable steps” to prevent those acts.
Only steps that pre-date the employee’s unlawful acts are relevant. Steps taken afterwards — for example investigating the complaint and dismissing the offender — will not help an employer avoid liability (Haringey LBC v Al-Azzawi [2000] UKEAT158).
An employer who has a record of previous acts of discrimination or harassment, showing that they have not learned from past mistakes, will find it even harder to avoid a claim.
The Equality Act Code of Practice on Employment (see above) contains guidance (para 10:51) on this. It suggests that reasonable steps could include:
• implementing an equality policy;
• ensuring all workers are aware of it;
• providing equal opportunities training;
• reviewing equalities policies and keeping them up to date; and
• dealing effectively with employee complaints.
The Code says an employer will have taken all reasonable steps if there are “no further steps” they could have been expected to take. In deciding whether a step is reasonable, says the Code, “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.
In practice, to be safe from a claim, employers must build an organisational climate in which all workers are respected, with zero tolerance of bullying, harassment and bad behaviour in all its forms.
There must be clear and well-understood pathways for targets of unacceptable behaviour to get redress, and effective training and monitoring to make sure policies are implemented.
Remember that an individual harasser will still be liable even if the employer took reasonable steps to try to prevent the harassment. It is nearly always sensible to bring any tribunal claim for harassment under the EA 10 against the individual as well as the employer.
For an employer to be liable, the harassment must take place “in the course of employment”. This phrase has a wide meaning, and can cover out of work events such as work-related social functions, office parties organised by the employer, or business trips.