What does “all reasonable steps” against harassment look like in the workplace?
Author: Victoria Watts
Key contact: Chris Aldridge
Under section 109 of the Equality Act 2010, anything done by an employee in the course of their employment is treated as also done by the employer. This means that employers could be liable for acts of discrimination, victimisation or harassment committed by their employees. However, the Equality Act also provides a defence: the employer may not be liable if it can show that “all reasonable steps” against harassment were taken to prevent the employee from committing the act or from doing anything of that description.
So, what does “all reasonable steps” look like in the workplace? This was considered by the Employment Tribunal in the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust and Hammond.
The claim
Mr Campbell was employed by Sheffield Teaching North Hospitals NHS Foundation Trust (the Trust) and worked full-time as a branch secretary of a recognised union. Mr Hammond was also an employee of the Trust and a member of the union.
Mr Hammond decided that he wanted to leave the union and spoke to Mr Campbell about union subscriptions being deducted from his wages. During this conversation, Mr Hammond became angry and made a racially discriminatory comment to Mr Campbell.
Mr Campbell brought a claim for racial harassment against both the Trust and Mr Hammond.
The Employment Tribunal had to determine the following:
- Was the discriminatory comment made by Mr Hammond in the course of his employment?
- Did the Trust take all reasonable steps to prevent Mr Hammond’s conduct?
The decision
The Tribunal found that the incident was not in the course of Mr Hammond’s employment; even though the conversation had taken place on the Trust’s premises during working hours, it related to a personal dispute Mr Hammond had with the union.
The Tribunal also found that the Trust had taken all reasonable steps to prevent Mr Hammond’s conduct, and the Trust therefore could not be held liable for the discriminatory comment.
Importantly, the Tribunal noted that the Trust had taken the following steps:
- Held an induction session attended by Mr Hammond at which the issue of “acceptable behaviour at work” and the Trust’s core values of “affording dignity, trust and respect to everyone” were emphasised;
- Given Mr Hammond annual performance assessments, which covered the issue of whether he was acting in accordance with the Trust’s core values;
- Displayed posters showing the Trust’s core values in areas where Mr Hammond worked; and
- Conducted mandatory training on Equality and Diversity issues every three years.
Mr Campbell appealed the decision. The Employment Appeal Tribunal upheld the original decision, finding that the Tribunal had been entitled to conclude that the Trust had taken all reasonable steps to prevent the conduct.
What does this mean for employers?
Employers need to be aware that they can be responsible for discriminatory conduct committed by employees under certain circumstances. It is therefore essential that employers are not only reactive but proactive in taking preventative steps. The implications of this claim also extend to other forms of harassment, including sexual harassment.
Of course, what is considered to be “all reasonable steps” will vary from employer to employer, and will depend on the size, nature, and resources available. However, the case of Campbell provides a valuable insight into what a Tribunal will be looking for.
As a starting point, we recommend employers consider:
- Reviewing and updating policies and procedures, including an Anti-Harassment Policy;
- Implementing effective reporting mechanisms that provide a clear process for making a complaint;
- Conducting mandatory training for all staff, covering what standards of behaviour are expected and the core values of the organisation;
- Engaging with staff to understand what changes should be made to foster a positive work environment.
Our specialist Employment team at Acuity Law can assist with any concerns or queries you may have in respect of your staff. Please drop us a line to discuss any employment or HR issues.
