Under the Equality Act 2010, an employer is liable for the discriminatory acts of its employees if those acts are done during the course of employment. However, the employer has a defence if it can show that it took all reasonable steps to prevent the employee from carrying out the discriminatory act.
To date, legal cases on the ‘all reasonable steps' defence have been few and far between. However, once the Employment Rights Bill comes into force, the concept of taking ‘all reasonable steps' is set to take an increasing role. Under the Bill, the existing duty to prevent sexual harassment in the workplace will be upgraded to a requirement to take ‘all reasonable steps' to prevent it, and employers will also be liable unless they have taken ‘all reasonable steps' to prevent third parties from harassing their employees.
In the recent case of Mr Campbell v 1) Sheffield Teaching Hospitals NHS Foundation Trust & 2) Mr Wesley Hammond, the Employment Appeal Tribunal has provided some very useful guidance for employers on how to demonstrate that they have taken ‘all reasonable steps'.
Background
Mr Campbell, a black man, was employed by the NHS Trust and served as Branch Secretary for UNISON. Mr Hammond, a white man, also worked for the Trust and wanted to resign as a trade union member. During a heated discussion between the two of them about a refund of trade union subscriptions, Mr Hammond used a racist term to describe Mr Campbell.
Mr Campbell brought a claim for racial harassment. The Trust acknowledged that Mr Hammond said the racist comment, but they defended the claim on the basis that: 1) the comment was not said ‘during the course of employment,' and 2) the Trust had taken all reasonable steps to prevent Mr Hammond from discriminating.
The Employment Tribunal
The Employment Tribunal agreed with the Trust on both grounds.
Applying the ordinary, everyday meaning of ‘during the course of employment,' the Tribunal found that it did not extend to a discussion between a union official and union member about trade union matters (even if it did happen on the employer's premises during working hours).
Secondly, the Tribunal held that the Trust had taken ‘all reasonable steps' to prevent the discrimination. Namely:
- Mr Hammond was given an induction session at which the issue of “acceptable behaviour at work” and the employer's core values of “affording dignity, trust and respect to everyone” were emphasised.
- Mr Hammond was given an annual performance assessment which covered the issue of whether he was acting in accordance with their values.
- The employer displayed its values on posters in areas where Mr Hammond worked.
- Mr Hammond was required to undergo mandatory training on equality and diversity issues every three years, most recently where training was conducted in small groups and involved him going through a PowerPoint presentation. The presentation referred to the promotion of “a positive attitude towards equality and diversity by showing respect for others, valuing people's differences and treating people with dignity”.
Mr Campbell appealed the decision on both counts. Firstly, arguing that the incident occurred in the workplace and involved matters directly related to employment (specifically union membership); and secondly that the Trust could (and should) have done more to prevent the incident.
The Employment Appeal Tribunal (EAT)
The EAT upheld the Tribunal's decision, agreeing that the comment was not made in the course of employment and that the Trust had taken all reasonable steps to prevent harassment.
The EAT held that the Tribunal's decision that ‘all reasonable steps' had been taken was an entirely understandable conclusion, particularly given Mr Campbell did not put forward any other steps that he considered could have been taken.
Comment
It is very rare for an employer to openly acknowledge that one employee said something racist to another, but still go on to successfully defend the harassment claim.
The threshold for establishing that all reasonable steps have been taken is a high one that is difficult for employers to meet. It will always come down to the facts of each case. It's unlikely, for example, to meet the threshold to simply have a discrimination and harassment policy in place and ask employees to do an e-learning course at the start of their employment. In this instance, the key was the Trust's consistent reinforcement of equality and diversity standards throughout Mr Hammond's employment – and it is to that standard that employers will have to adhere to if they are to have any hope of successfully relying on the ‘all reasonable steps' defence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
