Under the Equality Act 2010, employers are generally liable for the harassing acts of their employees committed in the course of employment. This places a hefty burden on the employer. It cannot hope to fully control the way its employees behave but might still end up liable for their actions. This is where the ‘all reasonable steps’ defence comes in. An employer can successfully defend a harassment claim if it can show that it took ‘all reasonable steps’ to prevent the harassment from occurring. The defence is notoriously narrow in its application. Examples of it being successfully argued are few and far between.

What is the ‘all reasonable steps’ defence?

The first thing to note is that the phrase used is ‘all reasonable steps’. An employer must show that they have done everything they reasonably could do to prevent harassment occurring.

The steps to prevent harassment must have been taken before the alleged harassment took place.

Small employers aren’t expected to do as much as larger employers. In Allay (UK) Ltd v Gehlen,[1] the Employment Appeal Tribunal (EAT) made it clear that tribunals can look at cost and practicality when considering what steps would be reasonable.

In Canniffe v East Riding of Yorkshire Council,[2] the EAT stated that a tribunal should take a two-stage approach to the ‘all reasonable steps’ defence:

  1. Review the steps the employer took.
  2. Consider whether there were otherreasonable steps that it could have taken. If any other reasonable steps exist and are identified, then the defence will fail.

Case law spotlight: Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust & Hammond

More recently, the EAT looked at the ‘all reasonable steps’ defence in the case of Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust (1) and Mr Hammond (2). The Claimant was an employee of the Trust and a full-time trade union Branch Secretary. Mr Hammond was a union member who wanted to leave. The Claimant had an argument with Mr Hammond about deductions being taken from his salary by the trade union. In anger, Mr Hammond made a comment which was capable of amounting to racist abuse. The Claimant claimed racial harassment. A finding of fact was made by the Tribunal that the comment had been made. However, the EAT held that the Trust was not liable for racial harassment. Although the harassment had occurred, the Trust had taken all reasonable steps to prevent it. A useful starting point for employers considering whether their own anti-harassment measures are sufficiently robust, the reasonable steps comprised:

  • an induction session on dignity at work at which the Trust’s core (‘PROUD’) values were introduced;
  • annual performance assessment including consideration of compliance with PROUD values;
  • display of PROUD posters in the workplace; and
  • mandatory training every three years on EDI issues which had recently been completed by Mr Hammond as part of a small group session.

Since no further steps which had not been taken had been suggested by the evidence or in submissions, it had been reasonable for the tribunal to conclude that these comprised all reasonable steps in this case – the two-stage Canniffetest had been satisfied.

How does the ‘reasonable steps’ defence link to the new duty to prevent sexual harassment?

We’ve already covered how employers can defend harassment claims by showing they took all reasonable steps to prevent it. The law now goes further for sexual harassment specifically.

Under s40A Equality Act 2010, employers have a new proactive duty to take reasonable steps to prevent sexual harassment at work. If they fail, tribunals can increase compensation by up to 25% in successful sexual harassment claims.

There’s still some uncertainty about how this duty interacts with the existing defence. However, if an employer fails to establish the ‘all reasonable steps’ defence, it’s likely a tribunal will also find they’ve breached the positive duty. Currently, there’s a slight difference in language between the two tests – the word ‘all’ is omitted from the pro-active duty to take reasonable steps to prevent sexual harassment. However, this is likely to be ironed out under the Employment Rights Bill, making it clear the two tests are aligned.

Top tips

To rely on the ‘all reasonable steps’ defence, employers must show genuine, proactive efforts to prevent harassment. The Campbell case shows it is possible. Key steps include:

  1. Undertake a risk assessment for harassment and keep it under regular review. Tailor policies and training to identified risk areas in your business.
  2. Have clear, up-to-date EDI and anti-harassment policies in place.
  3. Regularly review and refresh those policies.
  4. Make sure all staff are aware of the rules and what they mean in practice.
  5. Provide meaningful training on equality and harassment – tick-box sessions won’t cut it.
  6. Give managers extra training on spotting and handling issues.
  7. Respond to complaints promptly and take appropriate disciplinary action where needed.

Remember, a policy is only as strong as the action behind it.

Supporting resources

The Equality and Human Rights Commission have the following guidance and resources available:

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HR Inner Circle members have exclusive access to additional resources including a template policy, handy flowcharts, and training tools for managers: https://members.hrinnercircle.co.uk/the-vault/templates

[1] UKEAT/0031/20

[2] [2000] IRLR 555