The employer’s ‘reasonable steps’ defence

The defence of reasonable steps can now be found in section 109(4) of the Equality Act 2010. This says that an employer will not be liable for unlawful acts committed by an employee if the employer can show it took “all reasonable steps” to prevent the employee acting unlawfully. Such steps could include having an equality policy in place and making sure it is implemented, and providing training on equality to all staff.

To rely successfully on the “reasonable steps” defence, the employer must be able to point to steps taken before the harassment took place. Steps taken afterwards — for example investigating the complaint and dismissing the offender — will not help the employer build this defence. Tribunals must focus on what the employer has done prior to the discrimination and not how he reacts to it once it has happened (Haringey LBC v Al-Azzawi [2000] UKEAT158).

This means that to be safe from a claim, employers must be proactive in cultivating and maintaining an organisational climate in which all workers are respected and bullying and harassment is simply not tolerated.

What is “reasonable” obviously depends on individual circumstances, but the Equality Act Code of Practice contains guidance (para 10:51). It suggests that reasonable steps might 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.

Remember that the individual harasser will also be liable, even though 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 Equality Act 2010 against the individual harasser as well as the employer.