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The problem with the statutory defence to discrimination claims

View profile for Chris Dobbs
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The problem with the statutory defence to discrimination claims

In his latest article, Employment Solicitor Chris Dobbs looks at the problem with the statutory ‘reasonable steps’ defence to discrimination claims.

He looks at where the defence fails and discusses the importance of up to date employment training.

The statutory defence to discrimination claims

Employers facing discrimination claims will sometimes find themselves in the unenviable situation of having never been aware of the discriminatory acts until the day a claim form arrives on their desk.

This may be because the size or structure of the organisation is such that the allegations are against a manager or colleague who is significantly removed from the person dealing with the claim.

In those situations, an employer may be able to rely on the so called ‘statutory defence’ to a discrimination claim. It is a notoriously hard defence to run successfully because it has the effect of negating any responsibility the employer may have for the actions of its staff.

What are the main defences to a discrimination claim?

When defending discrimination claims, an employer will often take one or more of several approaches depending on how the claim is pleaded and the particular circumstances. They may wish to:

  • Argue that the claimant did not have the protected characteristic claimed – this is a common approach to disability claims
  • Contend that the conduct complained about did not happen – for example that an employee who claims they were overlooked for promotion never actually applied
  • Assert that even if the conduct did happen, it was not discriminatory – this may be because there were other factors in a recruitment or promotion case, for example, or that the conduct was not related to the characteristic at all

The defence taken will depend on the time of claim and the way in which it has been pleaded to the Tribunal so there is no ‘one size fits all’ approach to defending discrimination claims.

What does the claimant have to prove in a discrimination case?

However, one useful tip to remember is that the initial burden in a discrimination case is on the Claimant to show that there is a link between the conduct and their claimed protected characteristic.

It is not enough for a Claimant to simply say “I didn’t get the job, a man did, and I am a woman” to establish a sex discrimination case.

They would have to show that they are also equally or better suited to the role before the burden of proof shifts to the employer to show that they did not discriminate.

Structuring the best defence

The best defence to a discrimination claim is one which is takes into account the nature of the claim and the particular circumstances.

Defences are best when they are prepared from scratch each time and drafted to deal with the specific allegations a Claimant may have raised.

What is the reasonable steps defence?

The statutory or reasonable step defence is set out in the Equality Act at section 109(4). Section 109 generally creates a statutory regime of ‘vicarious liability’.

In short, this means that an employer is considered responsible for the discriminatory actions of its employees or agents.

It is not necessary for a Claimant to specifically plead section 109 as part of their claim. If it is established that a Claimant’s manager did directly discriminate against them, liability for this is automatically deemed to rest with the employer.

This is why almost all Tribunal claims name the employer, rather than individuals, as the Respondent.

Taking ‘all reasonable steps’

However, section 109(4) says that the above does not apply if the employer can show that it took ‘all reasonable steps’ to prevent the discriminatory act from happening in the first place.

In effect, the employer can shrug off the cloak of vicarious liability and say that, despite everything they had in place to prevent it, the manager or colleague still took it upon themselves to act in a discriminatory way.

If successful, the reasonable steps defence can be a complete defence for an employer and if the Claimant has not named individuals in their claim it may also defeat the claim completely.

Does the reasonable steps defence work?

It is incredibly difficult to successfully plead the reasonable steps defence and case law very much proves this.

The requirement under the legislation is to take “all reasonable steps”. In practice, the Tribunal has interpreted this quite strictly and various cases have shown the extent to which a business has to go in order to rely on the defence.

Allay (UK) Limited v Gehlen

The Employment Appeal Tribunal ruled in the case of Allay (UK) Limited v Gehlen that an employer seeking to rely on training provided to staff had to be able to show that it was still relevant and engaged with by staff.

They described the training given by the employer as “stale” and that in order to be successful, the company would have had to show that it had also provided refresher training to staff on equality and diversity.

Taylor v Jaguar Land Rover Ltd

In the case of Taylor v Jaguar Land Rover Ltd, the Tribunal reached a similar conclusion and went so far as to express its surprise at the decision to rely on the defence when the Respondent had shown only that it had policies in place.

These were criticised as being badly publicised and unimplemented. The fact they had run this defence even went against Jaguar Land Rover when it came to costs in this case.

The reason most employers don’t use the statutory defence therefore is that most of them know that they have not done enough to meet the fairly high threshold.

Why is anti-discrimination training important?

The most obvious reason is that it raises awareness of the potential risks of discriminatory behaviour, its effect and, hopefully, helps to reduce incidents of such conduct.

We all agree that nobody should face workplace discrimination and by making sure staff are aware of what may count as discriminatory conduct, you protect their colleagues from facing discrimination and yourself from facing claims.

Nobody can guarantee that any given piece of training will be sufficient to meet the threshold of the statutory defence but a major part of delivering appropriate training is to try and prevent the situation which leads to a claim in the first place.

The benefit for both engaged and less engaged staff

Staff who are already engaged with the importance and value of diversity benefit from where their views sit in a legal framework.

Those who are perhaps less engaged can develop an understanding of the extent to which certain characteristics are protected and when unintentional actions may still give rise to claims.

Specialist Employment, HR and discrimination training

At Frettens, our specialist Employment Team offer a variety of different training courses for new and experienced managers alike.

One of our full-day courses in on workplace discrimination and gives participants the opportunity to explore the nature of the protected characteristics and the kind of actions and workplace situations which might lead to a claim in the workplace.

What the course includes

We pay particular attention to harassment claims which can be some of the hardest to defend because there is no need for the Claimant to show any intent to discriminate in order to be successful.

The course also looks at particular issues around maternity and disability claims through case studies and contemporary recent judgements.

What is clear is that the Tribunal expects training to be active, relevant, refreshed and implemented if you want to rely on the statutory defence. Even if you offer in-house equal opportunities and diversity training, it can never hurt for staff to have more knowledge.

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