What does all reasonable steps mean for employers protecting staff from harassment?

This question has come to the fore in the light of the Employment Rights Bill which is going through Parliament at the current time. Measures to protect employees from harassment must comprise all reasonable steps but there is considerable uncertainty about what this actually means. In relation to the Bill guidance is awaited.

In Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust & Hammond the Employment Appeal Tribunal has given something of an indication. 

This case was about taking all reasonable steps to prevent a black employee from being racially abused. Mr Hammond was a full-time union Branch secretary and employee of the Teaching Trust. Mr Campbell got into an argument with Mr Hammond about deductions from his salary by the union. In anger Mr Hammond made a comment which amounted to racist abuse. Mr Campbell brought a claim for racial harassment against the Trust and Mr Hammond.

Remember that with discrimination claims employees can be personally liable as well as their employer having liability for what happens in the workplace. 

The Employment Appeal Tribunal (EAT) found as follows:

• The initial Employment Tribunal had concluded (reasonably) that the comment was not made in the course of employment. It was made on the premises during working hours but it was a conversation between a union official and a union member. The Trust therefore could not be liable for racial harassment. This is also a difficult concept to determine–what does and what does not equate to in the course of employment.

• The EAT held that the Trust had taken all reasonable steps to prevent harassment from occurring. No further steps which had not been taken were identified by the evidence or in submissions made to the tribunal during the case and therefore it was reasonable to conclude that these steps comprised all reasonable steps.

• Perhaps something of a checklist for employers the all reasonable steps requirement was met in this case by having sufficiently robust anti-harassment measures in place which comprised:

• An induction session on dignity at work during which the Trust’s core values were introduced

• Annual performance assessment which considered employees’ compliance with the Trust’s values

• Display of values posters in the workplace

• Mandatory training every three years on EDI issues. In this case Mr Hammond had recently completed this training as part of a small group session. 

Is this case helpful in relation to the meaning of what all reasonable steps to prevent harassment means?

Yes and no. 

Yes, because it underlines that the application of anti-harassment policies, training and education will be vital if employers are to defend a claim.

No, because each case will turn on its own specific facts and no general rule can be taken from this decision. 

No, because the failure of the claim against the Trust has nothing to do with the Trust’s anti-harassment policies because the act of harassment complained of was held to be unrelated to the workplace.

If there is one useful thing to take from this case it is this: if you seek to defeat an employer’s all reasonable steps defence you need to make submissions to the tribunal about the other appropriate steps that should have been taken. If you can show their steps to be lacking you may have a chance to succeed.