The Reasonable Steps defence in practice

What is the ‘reasonable steps’ defence, and why is it so important for employers? Well, as you are probably aware, employers can be vicariously liable under the Equality Act 2010 for acts of discrimination or harassment committed by an employee in the course of employment, even if the employer did not know about those acts (see our previous article here).

However, there is a potential defence available to employers if they can show that they took all reasonable steps to prevent the discrimination or harassment from happening. There’s no fixed list of what would amount to reasonable steps, but it would usually include things like:

• having effective policies on equality and harassment and ensuring the policies are kept up to date

• ensuring staff, especially managers, are trained and regularly reminded about the policies, and that you can demonstrate this if necessary (we can help with training if you wish – please contact us for more information).

• ensuring any discrimination or harassment complaints or allegations are investigated fairly and thoroughly, and any issues are addressed

If the reasonable steps defence succeeds, the employer will not be liable for the discriminatory acts, even if they were committed in the course of employment.

This point was considered in the recent case of Leader v Hossack, where the employer successfully used the reasonable steps defence, resulting in the Employment Tribunal dismissing the claim against the employer altogether. The judgment confirming the decision to remove the employer from the proceedings is short and sweet, and can be viewed here.

What was the Leader v Hossack case about?

The facts of the case were that Mr Leader and Mr Hossack worked for Leeds City Council and were travelling together in a works vehicle. During the journey Mr Hossack made a number of racist remarks to Mr Leader, who is black.

Mr Leader subsequently made a complaint to his employer about what had happened. The Council spoke to Mr Leader about his complaint and told him that he would not have to work with Mr Hossack. However, the Council didn’t suspend Mr Hossack from work, and Mr Leader raised a formal grievance.

Mr Hossack resigned before any disciplinary action could be taken against him.

Ultimately Mr Leader brought claims for race discrimination and harassment in the Employment Tribunal. He brought his claims against both Mr Hossack personally and Leeds City Council as the employer.

What was the decision in the case?

The Employment Tribunal considered the reasonable steps defence and concluded that the Council had done everything reasonable to prevent Mr Hossack from making the racist remarks. Therefore the Council were removed from the Tribunal proceedings, but the case continued against Mr Hossack. Mr Leader was awarded £2,500 compensation for injury to feelings, plus interest, to be paid by Mr Hossack.

Lessons for employers

This case illustrates to employers that there are real benefits to having proper procedures in place and ensuring that they are followed. The compensation in this case was not huge, but the same principles apply to all discrimination and harassment claims and could be crucial in an employer’s defence to a much bigger claim. Unfortunately, it is not always quite so easy for an employer to be removed from proceedings, but the stronger the evidence you have for your reasonable steps, the better the defence will be.