The ‘all reasonable steps’ defence

When the Employment Rights Bill comes into force, employers will be under a duty to take ‘all reasonable steps’ to prevent sexual harassment in the workplace. This will extend the current duty to take ‘reasonable steps’.

The case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust provides helpful guidance on what ‘all reasonable steps’ means in practice for employers.

Mr Campbell worked for the NHS Trust as Branch Secretary for UNISON, a recognised trade union. Mr Hammond also worked for the Trust and decided to leave the union. He made a racially abusive comment to Mr Campbell during a conversation regarding union membership subscriptions. The Trust relied on the “reasonable steps” defence.

The Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s decision that the Trust was not liable for Mr Hammond’s actions. It concluded that the remark was not made in the course of Mr Hammond’s employment. Although it had been made during working hours on the Trust’s premises, the conversation had been between a union official and a union member about union membership. Even if the EAT had made a different finding on this point, it concluded that the Trust had taken all reasonable steps to prevent Mr Hammond from making the racist remark or from doing anything of that description. It found the Trust had taken the following steps:

• an induction session covering acceptable behaviour at work and the Trust’s core values of “affording dignity, trust and respect to everyone”
• annual performance reviews assessing whether Mr Hammond had acted in accordance with the Trust’s core values
• posters displaying the Trust’s core values in areas where Mr Hammond worked
• mandatory equality and diversity training every three years, which Mr Hammond had attended shortly before the incident.

What does this mean for employers?

At our HR Breakfasts earlier this year, we spoke about how Diversity, Equity, Inclusion and Belonging (DEIB) initiatives have been under recent scrutiny and attack, particularly in the United States of America. However, this ruling highlights the importance of investing in diversity, equity and inclusion. Technical guidance from the Equality and Human Rights Commission makes clear that what amounts to reasonable steps will depend on the facts of each case, but it is significant that the Trust had repeatedly reinforced equality and diversity in the workplace.

How Ashtons Legal can help you

If you are an employer and would like us to deliver training to your managers on the sexual harassment duty, please do get in touch for more information.

Contact our employment law solicitors today

If you would like advice on any of the issues raised in this article, please do not hesitate to contact our specialist Employment Law team by using our online enquiry form or by calling 0330 191 5713.