Discrimination Law Update – Statutory Defence

In a recent case (Mr John Campbell v Sheffield Teaching Hospitals NHS Foundation Trust and Mr Wesley Hammond), the Employment Appeal Tribunal (EAT) examined the effectiveness of an employer’s “all reasonable steps” defence – section 109 (4) of the Equality Act 2010.

Mr Campbell, formerly an employee of Sheffield Teaching Hospitals NHS Foundation Trust, alleged that he had been subjected to racial discrimination and harassment by a workplace colleague. The allegation centred on a verbal exchange between Mr Campbell and Mr Harding relating to cancellation of trade union membership and recovering subscription fees.

The claim made by Mr Campbell to the Employment Tribunal (ET) against the employer was based on section 109 (1) of the Equality Act 2010, which provides that employers will be liable for actions of employees acting in the course of their employment.

The employer defended the case on the basis of section 109 (4) and argued that it should not be held liable for discriminatory acts committed by the employee on the basis that it had taken all reasonable steps to prevent such behaviour.​

The employer argued that it had implemented comprehensive equality and diversity policies and provided regular training to staff.​ The ET accepted the employer’s argument and the EAT upheld the ET’s decision.

The EAT stated that the ET had reasonably concluded that the comment of the employee was not made ‘in the course of employment’ although it had been made on the Trust’s premises during working hours, the conversation had been between a union official and a union member about union membership.

The EAT agreed with the ET that the employer had taken all reasonable steps to prevent the harassment from occurring.

In this case, the steps taken by the employer included the following:

• An induction session on dignity at work at which the employer’s core (‘PROUD’) values were introduced
• Annual performance assessment including consideration of compliance with PROUD values
• Display of PROUD posters in the workplace
• Mandatory training every three years on EDI issues which had recently been completed by Mr Hammond as part of a small group session

The EAT also pointed out that, as no further steps had been suggested by the claimant in evidence or by way of submissions, it had been reasonable for the ET to conclude that these comprised all reasonable steps in this case.

Key Elements for Employers

To successfully rely on this statutory defence, the onus will be on the employer to show that it took all reasonable steps to prevent discrimination or harassment. Over the years, many employers have sought legal advice as to what is required to satisfy this test.

We recommend that employers take the following actions:

Anti-Discrimination Policies

Implement and communicate clear policies that prohibit discrimination, harassment, and victimisation. Ensure that policies align with legal requirements.

Staff Training

Conduct regular equality, diversity, and anti-harassment training for employees –whether internally or by engaging an external provider to provide training. This training should ensure that managers understand how to prevent and address discrimination.

Effective Reporting and Complaint Procedures

Put in place easily accessible and confidential reporting mechanisms and encourage employees to report issues.

Action

Take effective action by investigating complaints promptly and thoroughly. Where appropriate applying disciplinary measures where necessary to deter future misconduct.

Review and Updating of Policies

Assess the effectiveness of existing policies and make improvements based on any employer complaints and changes to statute.

The most common reasons for employers failing to satisfy the test include the following:

• The company had policies in place but did not actively enforce them.
• Staff training was inadequate or infrequent.
• Staff complaints were ignored or mishandled.
• The company had a workplace culture that tolerated discrimination.

Advice

We encourage our clients to actively monitor the manner in which they provide training on equality/discrimination matters and apply policies and procedures. Should you wish advice on this matter please contact Stuart Robertson or Graham Millar.

Find out more about our Employment services here.

The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.