'Reasonable Steps' to be Able to Defend Harassment Claims
Alan Kitto
Where a worker considers themselves a victim of harassment at work they are able to bring legal claims against:
Their employer, and
The individual(s) carrying out the harassment
Where the employer can show an Employment Tribunal that it has taken 'all reasonable steps' to prevent harassment in the workplace, the claim against the employer will fail leaving the individual(s) personally liable for their actions and any resulting compensation.
There is no specific guidance on what ‘all reasonable steps’ would entail but generally it would involve, as a minimum:
Having a Harassment and Bullying Policy that explains what is deemed unacceptable behaviour (whether defined as harassment or bullying)
Ensuring that the policy is issued to all employees
That directors, managers, supervisors and team leaders are trained in ensuring conduct within their team remains appropriate and that they know what to do if it becomes inappropriate
That employees are reminded regularly of their responsibility to behave appropriately and what inappropriate behaviour looks like
That refresher training is given to directors, managers, supervisors and team leaders periodically
It’s fair to say that, in our experience, most companies will have a Harassment and Bullying Policy and this is likely to be issued to new starters. It’s rare though that directors, managers, supervisors or team leaders receive any training in this area, rarer still for employers to ensure that employees are reminded periodically of what is and isn’t appropriate and rarer still that any training offered is refreshed.
A recent EAT (Alley v Gehlan) ruling answered the question: Can an employer rely on the 'reasonable steps' defence to harassment where it provided training to the perpetrator of harassment and other employees?
Not where that training had become ‘stale’ and needed refreshing, was the answer.
The Claimant was subjected to racist comments on a regular basis. In a claim for harassment related to race, the employer relied on the 'reasonable steps' defence under s109(4) Equality Act 2010: that it had taken all reasonable steps to prevent the harassment, due to its provision of relevant training to the perpetrator and other employees.
The EAT upheld the tribunal's decision to reject the defence. As to the reasonableness of the steps taken, the training, given over a year before the harassment, had become stale, as demonstrated by the racist comments and managers failing to report them when they were aware.
Additionally, the employer needs to have taken all reasonable steps. In this case, a reasonable step would have been to refresh the training, and there was nothing to suggest that this would not have been effective. In fact, the employer provided the perpetrator with training after the harassment, so must have thought it was likely to be effective.
Our ‘Appropriate Behaviour’ training session is an excellent way to ensure that everyone, employees, directors, managers, supervisors and team leaders understands what they should or shouldn’t, can and can’t do; the session lasts around 90 minutes.
We’d recommend all employees receive this training soon after joining and then have a refresher session at least every 18-24 months.
If you’re interested in us delivering this training for your organisation, please let us know; this training can be provided ‘in the room’ (subject to COVID restrictions) with a group of employees or online, please contact us for more details.