Claims for discrimination and harassment in the workplace are on the rise and an adverse finding can have devastating reputational and financial consequences for any employer. Employers should therefore be taking all necessary steps to protect staff and prevent such incidents happening at work.
Employer liability for acts of employees
Employers need to remember that they are potentially liable for acts of discrimination and harassment carried out by their staff. Anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval.
That being said, an employer may not always be liable for an employee’s acts. An employer may have a potential defence to a claim of discrimination or harassment if it can show that all reasonable steps have been taken to prevent the discrimination or harassment occurring in the first place.
“Reasonable steps” defence
In order to succeed with a "reasonable steps" defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.
The courts will take a two-stage approach to assessing what is reasonable, looking first at what steps the employer took to prevent discrimination or harassment occurring, and then considering whether there were other reasonable steps that it could have taken.
Reasonable steps will include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy.
- Regularly reviewing those policies.
- Making all employees aware of the policies and their implications.
- Training managers and supervisors in equal opportunities, discrimination and harassment issues.
- Taking effective steps to deal with complaints, including appropriate disciplinary action.
Unfortunately, even though many employers do provide equality and diversity training and do have equality and diversity policies in place, the “reasonable steps” defence rarely succeeds in practice.
Are your current policies and practices up to date?
Given the increase in the number of discrimination and harassment claims in the Employment Tribunal, it would be extremely wise for employers to review and, if necessary, update workplace policies and practices to ensure that they are up to date and reflect best practice.
Employers should also ensure that appropriate training on matters such as equal opportunities, bullying, harassment and discrimination occur on induction, and that adequate refresher training sessions are scheduled for all staff on at least an annual basis.
The Gateley Employment Team can help businesses to review current policies and practices to ensure that they are up to date and reflect best practice. We can also assist with providing bespoke training on equal opportunities, bullying, harassment and discrimination.
Please do not hesitate to contact a member of the Gateley Employment Team if you would like to discuss matters further.