Two recent cases have highlighted the issue employers can face in relying on the statutory defence to workplace discrimination. Employers seeking to make use of this defence will often rely on various forms of policies and training to look to mitigate their liability for discrimination faced by an employee.
Employment Solicitor, Chris Dobbs looks at diversity training and the ‘reasonable steps’ defence.
What is workplace discrimination?
Discrimination is any form of unlawful conduct as defined by the Equality Act in connection with one of the protected characteristics under the same Act. Discrimination may be direct or indirect with harassment and victimisation also being unlawful under the Act.
People who are classed as disabled for Equality Act purposes have two further forms of protection: against discrimination arising in connection with their disability and the duty on an employer to consider and implement reasonable workplace adjustments.
In very broad terms, unlawful conduct directed to an employee either by the employer (such as through a manager) or by a colleague can give rise to claims.
Is an employer liable for discrimination and harassment in the workplace?
Where the conduct complained of is performed by an employee of the business in the course of their employment, the employer is treated as liable under s109(1) of the Equality Act.
Employers are much less likely to be deemed responsible for harassment conducted by a third party.
What is the ‘reasonable steps’ defence?
Where an employee brings a discrimination claim, the correct Respondent will almost always be their employer due to s109(1) above. However, in drafting the legislation, the Government recognised that some employers may have genuinely done what they could to try and prevent discriminatory acts.
S109(4) recognises this and introduced the so-called ‘statutory defence’. If an employer ‘took all reasonable steps to prevent’ the discriminatory conduct they will not be liable for the offending behaviour.
It’s important to note that the requirement is absolute: an employer must take all steps but that these steps need only be reasonable. The test is what a reasonable employer would have done in the circumstances. Reasonable steps are likely to include:
- Appropriate and up-to-date polices in relation to harassment and bullying, communications and diversity and equal opportunities;
- Ensuring staff are aware of those policies and receive relevant training;
- Effective management of grievance and disciplinary processes where unlawful conduct occurs
Problems will arise where businesses may have such policies and training in place but there it is outdated, ineffectual or, as in the case of Allay Limited v Gehlen, ‘stale’.
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