Equality law – what is the “reasonable steps” defence?

Last week we hosted another enjoyable training session, this time on “employment contracts”. Our next session is on 23rd May is aimed at educating employers regarding how to prevent acts of discrimination and harassment in the workplace and how, if an employee is discriminated against or harassed by a colleague, the employer can escape liability.

So, without giving everything away (you’ll have to come to the training session on 23rd May to get the full picture – sign up at https://www.eventbrite.co.uk/e/training-equality-law-the-reasonable-steps-defence-tickets-30477957391 ), this article gives some general pointers.

Generally, an employer is legally responsible for acts of discrimination, harassment and victimisation carried out by its workers in the course of their employment. It does not matter whether or not the employer knew about or approved of what the worker did.

Often the intentions or wishes of the person discriminating / harassing do not matter and it is how the behaviour is received that is more important.

How can an employer prevent incidents of discrimination / harassment occurring or protect itself from claims if these incidents do occur?

An employer will not be held legally responsible for acts of discrimination or harassment by one of its workers if it can show that it took all reasonable steps to prevent the worker from acting unlawfully.

Employers can do this by:

  • Having an Equality Policy in place which sets out what is expected of employees;
  • Marking sure that the Equality Policy is reviewed, that it names the person within the organisation who is responsible for implementing the policy, and that that person does in fact lead the implementation of the policy;
  • Clearly warning employees that any unlawful discrimination is treated with the utmost seriousness and is likely to be deemed to be gross misconduct, e.g. having appropriate references in the Disciplinary and Grievance Procedures
  • Making sure that all employees are familiar with the Equality policy and any other relevant policies which are intended to prevent unlawful discrimination and harassment.
  • Keeping adequate and up to date records which can be used to demonstrate that employees are aware of policies and procedures.
  • Providing training to employees on equal opportunities and the Policy and refreshing that training at regular intervals.  Records should be maintained.
  • Handling complaints in a prompt fashion and treating them with the priority and seriousness that they deserve.
  • Keeping an open mind when conducting investigations and treating the complainant with empathy, whilst always ensuring that the investigation progresses and difficult lines of enquiry are properly addressed rather than swept under the carpet.

Beware that to avail of the statutory “reasonable steps” defence, these steps must be taken before any alleged acts of discrimination occur. Also note that an Equality Policy which sets out the standards of conduct for employees but which has not been adequately communicated to staff is likely to attract criticism from an Employment Tribunal, similar to having no policy at all.

If you implement good equality practices in your organisation, you should greatly reduce the likelihood that you will unlawfully discriminate. This should make you significantly less likely to face legal claims against your organisation for unlawful discrimination. Further, your staff will be educated in the behaviour expected of them and this will reduce the risk that they will unlawfully discriminate against, or harass, a colleague.

For more information or advice on this topic, please get in touch or sign up for our seminar – here’s the link again – https://www.eventbrite.co.uk/e/training-equality-law-the-reasonable-steps-defence-tickets-30477957391



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