Discrimination and harassment: 5 reasons an employer’s “reasonable steps” defence might fail

Why might a reasonable steps defence fail?

We set out below what we think are the five most common reasons why employers unsuccessfully run this defence:  

1. The quality and depth of the training provided to staff is insufficient.
   
   If training involves no more than a very basic overview of the issues with an instruction not to discriminate, or is simply a tick box exercise to say that all employees have read an Equal Opportunities Policy; it will not be enough to persuade an Employment Tribunal that all reasonable steps have been taken. Employers need to demonstrate that detailed training has been given to all staff, providing a thorough explanation of what could amount to discriminatory conduct or harassment, the standards of conduct expected, and the consequences of failing to adhere to those standards. 
2. The training happened far too long ago. 
   
   Even if detailed training is provided, it will not be enough to successfully run the defence if it was given so long ago that it has become ineffective, or that employees have forgotten it. Training needs to be repeated on a regular basis so that it does not become “stale”, as was the finding in the recent case of  Allay (UK) Limited v Gehlen. Running regular refresher sessions will also help to demonstrate the importance that the employer places on such issues. 
3. The policies are inadequate. 
   
   Employers often have policies in place confirming that the employer promotes equal opportunities and diversity, but those policies make little reference to discrimination or harassment issues.  Appropriate policies must be in place and clearly communicated to staff, with sufficiently detailed guidance on an employer’s approach to discrimination and harassment issues.  
4. The policies are not enforced in practice. 
   
   Even if detailed training has been given and the right policies are put in place, they must be followed in practice. Employers must take appropriate action whenever faced with any allegations of harassment or discriminatory behaviour.  Staff need to be confident that the employer will take appropriate action if anything happens to them at work and perpetrators need to know that such behaviour will not be tolerated.
5. Further steps could have been taken. 
   
   Even if an employer runs regular training sessions and has communicated the importance of its equality policies, it still needs to think about whether there are further steps that could be taken. The defence will fail if a Tribunal concludes that further steps could reasonably have been taken to prevent discrimination or harassment taking place. 

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.