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Employers have been stumbling in Tribunals by failing in their attempts to rely on the ‘reasonable steps’ defence in harassment and discrimination claims. The additional duty on employers contained in the Worker Protection (Amendment of Equality Act 2010) Act 2023 may see even fewer businesses reaching the bar for this defence in sexual harassment claims unless they are prepared to make considerable improvements in their anti-harassment training.
What is the ‘reasonable steps’ defence?
This defence is used where employers believe they have taken enough action to reduce their liability for the discriminatory or harassing behaviours of an employee(s). The new duty in the Act above extends this to behaviours of 3rd parties (customers, suppliers, contractors etc) in sexual harassment claims.
An employer’s defence is that they had taken ‘all reasonable steps’ to prevent the discrimination/harassment by providing, amongst other things, equality/dignity at work/anti-harassment training.
What does the case law say?
The case of Allay v Gehlen explored this defence in detail, particularly the realities of the training that had been provided. The EAT found that the employer could not rely on the defence that it had provided training because it was stale or ineffective. The case demonstrated the need for equality training to be regularly refreshed, of good quality and understood by attendees of the training.
This defence was debated in another Tribunal case in 2023; Fahmy v Arts Council England. ACE argued that it wasn’t liable for the harassing actions of their employee because it had taken ‘all reasonable steps’ to prevent the harassment. Specifically, it had taken disciplinary action against staff and had a Dignity at Work Policy which had enabled Ms Fahmy to bring a grievance. The ET rejected their argument. They looked at ACE’s Dignity at Work policy and also its equality training. Both were found wanting.
How can you ensure your Equality Training is good enough?
The above cases give clarity for employers on just what they must do to rely on the ‘employers defence’. The EHRC Technical Guidance also gives some real examples of what employers can do in the workplace to prevent harassment. It is a piece of guidance well worth reading.
Providing training is not just a tick box exercise. If you’re seeking to rely on this defence, there is a high threshold. Employers need to consider;
Prevention – what steps have been taken to prevent harassment? Good Dignity at Work policies and training are essential. You might have policies but consider if they are well communicated, read and understood by your employees. They should be regularly reviewed (at least annually) and updated, with attention being paid to terminology. Make sure:
Training – building on the point above, whatever you call your training (Dignity at Work / Anti-harassment / Equality Diversity & Inclusion etc.) it has to be ‘effective’:
We’d suggest that delegates are tested for their understanding of the contents and themes of the training. We would argue that who designs and delivers this training is paramount. An excellent understanding of the law and its application is vital in any training provider. Of course, there are other benefits to employers (beyond just being able to rely on the employers defence in a Tribunal claim). Trying to stamp out or limit incidences of harassment and discrimination in your workplace is a pretty important outcome of good training.
Practice – what happens ‘in practice’ in your workplace? Do harassment incidents continue after training? If so, is the training good enough or is it just one or two employees who did not ‘get it’? Do your communication channels reflect the standards of behaviour expected from staff (including the need to treat colleagues with dignity and respect)? Does disciplinary action follow where staff fail to meet such standards, up to and including dismissal? Have you got ‘toxic teams’ where you fear discriminatory behaviour gets ignored?
Other reasonable steps to think about – with the minefield that is the religious/philosophical beliefs and gender-critical beliefs debate, consider advising managers to take care when and how they express their personal opinions on the gender critical/trans debate. They should be advised to avoid being seen to take sides.
There are clearly a number of things employers need to do to both protect employers from harassment and protect themselves from claims. Sourcing quality training is an essential pillar for each.
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