Workplace discrimination and harassment instances are distressing to all concerned. They can have serious implications on employment relations and employees’ wellbeing and can result in Employment Tribunal claims. More often than not, while a claim is brought against an employer (e.g. the employing company), the employer is not the perpetrator of the conduct in question. Rather, the act complained of is likely to have been committed by a colleague or a manager of the complainant. The employer is treated as vicariously responsible for the wrongdoing because it employs the perpetrator and (broadly speaking) the act took place at work. In recognition of the potential unfairness to employers, the legislation provides for a “reasonable steps” defence which enables employers to avoid liability if they can show that they have taken all reasonable steps to prevent the perpetrator from doing the objectionable act or acts of that kind.

But what must employers do to benefit from the defence? As a first step, employers ought to have equality policies and procedures in place, supported by suitable training for all staff.

However, this is only the start and a recent Employment Appeals Tribunal decision confirms that, when assessing whether an employer has done enough to escape liability, focus will be firmly placed not on what the employer has done but, crucially, what more it could have doneWhere more could be done, the defence will not be made out, even if the additional steps would not have prevented the harassment or discrimination from occurring.

In assessing the additional steps employers may have to take, a tribunal will take into account the size and resources of the employer, the cost of the additional steps, their potential effectiveness and the practicability of providing them. If, having looked at these issues, the tribunal concludes that there were further steps that the employer should have reasonably taken, the defence will fail.

The case sends an important message to employers about the nature and extent of the commitment they must have (and display) to preventing workplace discrimination and harassment. Employers are advised to adopt and regularly review high quality policies and training. In addition to regular and periodic assessment of the steps taken to prevent discrimination, where discrimination or harassment is observed or becomes known, the policies and training must be reviewed, adapted and refreshed.