The statutory defence to a discrimination claim is known as the 'reasonable steps' defence. To successfully claim this defence you (as the employer) must prove and demonstrate that you took all reasonable steps to prevent harassment/discrimination in the workplace from happening. But how far do you need to go to show you have taken reasonable steps? Selena Baker from Greenaway Scott explains.
Following the case of Zulu and Gue v Ministry of Defence it can be difficult to show that you have taken all reasonable steps to avoid discrimination. If the employee can show a reasonable step that could have been taken but you did not take it then you will be unable to avoid liability for the actions of your staff.
The Equality and Human Rights Commission Employment Code suggests that reasonable steps are likely to include:
- Implementing an equality policy;
- Ensuring all workers are aware of that policy;
- Providing consistent training that goes beyond a box ticking exercise;
- Continually reviewing the policy and making amendments; and
- Dealing with any complaints effectively.
Some guidance for employers
1) Have a written policy in place that includes easily understood definitions and examples of unacceptable behaviour, including the behaviour outside of working hours that is covered by the policy, and a statement that discrimination and harassment are unlawful. You should also ensure compliance with the policy by highlighting that legal action could be taken against both individuals and the organisation for discrimination. There should also be encouragement for employees to 'speak up' when they witness discrimination and they should be able to raise these concerns easily and have those concerns dealt with effectively. A code of conduct could also be useful for highlighting the generally expected behaviour.
2) You must also ensure that your policy is implemented and is in use. Your staff must be made aware of it. The ways in which you could effectively implement the policy include:
- ensuring it is easily accessible;
- requiring employees to sign the code of conduct and return a copy of their signatory document to human resources;
- conducting all-inclusive and wide-ranging training to ensure staff understand the policy and are aware of conduct that may amount to discrimination. Training should be conducted during induction and repeated at appropriate intervals to ensure all staff appreciate the policy and its consequences;
- referring to the policy and company standpoint regularly within the workplace and openly discuss with staff. Posters could be displayed around the workplace, or the policy can be referred to in whole of staff newsletters/emails/communications; and
- ensuring that managers are trained on how to receive and deal with complaints.
- Keeping records of training attendance and where relevant, have participants sign in.
The reasonable steps defence is limited to the preventative steps taken before the act. So by taking steps before discrimination is complained of you will be able to effectively protect your interests and be protected against any legal action.