This article is lifted from Karens presentation at our first annual insolvency conference.
Two recent cases have highlighted the issue employers can face in relying on the statutory defence to workplace discrimination. Employers seeking to make use of this defence will often rely on various forms of policies and training to look to mitigate their liability for discrimination faced by an employee.
What is workplace discrimination?
Discrimination is any form of unlawful conduct as defined by the Equality Act in connection with one of the protected characteristics under the same Act. Discrimination may be direct or indirect with harassment and victimisation also being unlawful under the Act.
People who are classed as disabled for Equality Act purposes have two further forms of protection: against discrimination arising in connection with their disability and the duty on an employer to consider and implement reasonable workplace adjustments.
In very broad terms, unlawful conduct directed to an employee either by the employer (such as through a manager) or by a colleague can give rise to claims.
Is an employer liable for discrimination and harassment in the workplace?
Where the conduct complained of is performed by an employee of the business in the course of their employment, the employer is treated as liable under s109(1) of the Equality Act.
Employers are much less likely to be deemed responsible for harassment conducted by a third party.
What is the ‘reasonable steps’ defence?
Where an employee brings a discrimination claim, the correct Respondent will almost always be their employer due to s109(1) above. However, in drafting the legislation, the Government recognised that some employers may have genuinely done what they could to try and prevent discriminatory acts.
S109(4) recognises this and introduced the so-called ‘statutory defence’. If an employer ‘took all reasonable steps to prevent’ the discriminatory conduct they will not be liable for the offending behaviour.
It’s important to note that the requirement is absolute: an employer must take all steps but that these steps need only be reasonable. The test is what a reasonable employer would have done in the circumstances. Reasonable steps are likely to include:
- Appropriate and up-to-date polices in relation to harassment and bullying, communications and diversity and equal opportunities;
- Ensuring staff are aware of those policies and receive relevant training;
- Effective management of grievance and disciplinary processes where unlawful conduct occurs
Problems will arise where businesses may have such policies and training in place but there it is outdated, ineffectual or, as in the case of Allay Limited v Gehlen, ‘stale’.
Allay Limited vs Mr S Gehlen
Mr Gehlen was subjected to racial harassment which took the form of regular racially stereotypical comments made about him verbally by colleagues. His employer ran the statutory defence and cited equality and diversity training given to staff two years earlier.
Managers were told about the harassment by Mr Gehlen and their advice was that he report it to HR; they did not do so themselves.
The original tribunal finding was that the s109(4) defence failed because the employer could not show that a two-year-old training session and a poorly implemented procedure amounted to ‘all reasonable steps’.
The employer appealed and the EAT agreed with the original tribunal, describing the training as ‘stale’ in its judgment. The EAT went on to say that continuing and ongoing training may have assisted the employer but recognised that individuals may have failed to understand the training or just ignored it.
Taylor v Jaguar Land Rover
Taylor v Jaguar Land Rover has become more popularly known for being the first Tribunal decision to indicate that self-identification of gender falls under the ‘gender reassignment’ protected characteristic.
Ms Taylor identified as gender-fluid, not considering herself at either absolute on the male-female spectrum. As a result, she was bullied and harassed in the workplace by colleagues.
The Respondent in this case relied on the statutory defence throughout the claim. At paragraph 215 of its judgement, the ET addressed this as follows:
‘We found it surprising, to say the least, that the Respondent continued to rely on the statutory defence […] Given that the Respondent had some policies but did little or nothing to publicise or implement them, we found it hard to believe that the statutory defence continued to be pursued. As will be apparent from our findings of fact, the argument was totally without merit.’
The importance of up to date diversity training
Effective and up to date training is clearly vital to the success of the statutory defence in discrimination claims.
It is by no means guaranteed that simply having a policy or providing training will protect an employer but seeking to run the defence without any evidence that such training is provided or polices in place will not be popular with the tribunal.
In the Taylor case, the fact the Respondent continued to pursue the defence was relevant both to the issue of costs and the damages awarded.
It is also the case that a workforce who know how to engage with each other without causing offence will help promote a better working environment.
There is a good business case for diversity and businesses who can show they are committed to providing training, supporting staff and promoting inclusion are only going to benefit in the long run.
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