What actions will satisfy a tribunal that you have taken all reasonable steps to prevent harassment in the workplace? A recent Employment Appeal Tribunal (EAT) decision sheds some light on this important question.
Legal context
Employers may be liable for acts of discrimination committed by their employees if the act takes place “in the course of employment”. It will often be obvious that an incident occurred during the course of employment, but sometimes the lines will be blurred (for example, where an incident occurs at a work social event). Employers can avoid liability for an employee’s actions if they can demonstrate that they took “all reasonable steps” to prevent the employee from carrying out the discriminatory act or anything of that description.
Background
Mr Hammond was an employee of the Sheffield Teaching North Hospitals NHS Foundation Trust (the Trust). He wanted to terminate his trade union membership and went to the branch secretary of the trade union at the Trust, Mr Campbell, on his break and made a racially discriminatory statement during a heated exchange about this issue.
Employment Tribunal decision
The Employment Tribunal (ET) held that this incident did not occur in the course of employment. The ET considered that even though the remark was made on employer premises and during work hours, the interaction was a personal dispute Mr Hammond had with the trade union, of which his membership was a personal choice.
The ET also found that the Trust had taken all reasonable steps to prevent discrimination taking place:
- New employees attended induction training that emphasised acceptable behaviour in the workplace and Mr Hammond had attended this training.
- Annual performance assessments considered whether Mr Hammond acted in accordance with the Trust’s “PROUD” values (i.e. affording dignity, trust and respect to everyone).
- Posters displayed the PROUD values around the workplace, including areas in which Mr Hammond worked.
- Mr Hammond had to complete mandatory training about equality and diversity every three years, most recently doing so a few weeks before the incident with Mr Campbell. The Trust conducted the training in small groups and it involved a PowerPoint presentation that referred to “a positive attitude towards equality and diversity by showing respect for others, valuing people’s difference and treating people with dignity”.
EAT decision
The EAT dismissed Mr Campbell’s appeal. In particular, the EAT held that the ET had been entitled to find that the Trust’s preventative measures met the necessary standard to utilise the “all reasonable steps” defence, particularly where no further steps that could have been taken were referred to in the evidence or submissions to the ET.
Takeaways
This decision provides helpful insight for employers into what “all reasonable steps” might look like to avoid liability for discriminatory acts committed by employees. Since October 2024, employers have been under an obligation to prevent sexual harassment in the workplace. We have previously highlighted the importance of taking the same measures in relation to all forms of harassment (see our insight here). If you take more steps to prevent sexual harassment than you do other forms of harassment, a tribunal is unlikely to accept that you have taken “all reasonable steps” to prevent those other forms. With the Employment Rights Bill proposing to mandate that employers take “all reasonable steps” to prevent harassment from both employees and third parties, it will become more important than ever to take a rigorous approach to preventing discrimination. You can read our tips on conducting risk assessments here.
Whilst the EAT held that the ET was justified in its conclusion that the incident in question did not take place in the course of employment, that does not necessarily mean that employers will want to, or should, ignore conduct that happens outside work if it has (or may have) an impact in the workplace or on the organisation. It would, however, be sensible to record the fact that you do not believe the incident took place in the course of employment and explain how it impacts on the business.
If you require assistance relating to your policies and training on promoting an inclusive workplace and the steps you should take to prevent discrimination, please get in touch with your usual Dentons contact.
