When the Employment Rights Bill (ERB) comes into force employers will be under a duty to take all reasonable steps to prevent sexual harassment in the workplace and to prevent harassment of employees by third parties on the basis of any of the protected characteristics.
This will extend the current duty on employers to take reasonable steps to prevent sexual harassment. The issue for employers, then, is working out what taking all reasonable steps will mean for them in practice.
This new test under the ERB in relation to preventing sexual harassment mirrors the current employers’ statutory defence to discrimination claims under which an employer will avoid liability for acts of discrimination by an employee to a colleague, if the employer can show it took all reasonable steps to prevent the employee committing that discriminatory act. The recent case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust, Mr Wesley Hammond provides a useful steer on what all reasonable steps can mean in this context.
This was a claim for race discrimination. The Claimant, Mr Campbell, was employed by the Respondent NHS Trust (the Trust) and worked full time as a Branch Secretary of UNISON, a recognised trade union. Another employee of the Trust, Mr Hammond, made a racially abusive comment to Mr Campbell during a dispute regarding union membership subscriptions. In the subsequent litigation, the Trust relied on (among other things) the defence that it had taken all reasonable steps to prevent the incident occurring.
The Employment Appeal Tribunal (EAT) upheld the finding of the tribunal that the Trust was not liable for Mr Hammond’s actions. The primary reason was that the incident was found not to have taken place in the course of Mr Hammond’s employment with the Trust, and so the Trust could not be liable for it. Both the tribunal and the EAT also said, though, that even if they had made a different finding on this point, the Trust had taken all reasonable steps to prevent the incident occurring and so would not have been liable for it in any event.
The steps that the Trust was found to have taken were:
- Mr Hammond had attended an induction session on what the Trust called its “PROUD values” covering acceptable behaviour at work and the Trust’s core values of “affording dignity, trust and respect to everyone”;
- one of the points covered in Mr Hammond’s annual appraisal was whether he was acting in accordance with the PROUD values;
- the PROUD values were displayed on posters in areas where Mr Hammond worked; and
- all employees of the Trust were required to attend equality and diversity training every three years which took place in small groups - Mr Hammond had attended such training shortly before the incident took place.
It also helped the Trust that no further steps that it could have taken were suggested at any point during the proceedings, although based on the list above it is difficult to see what other steps could have been taken to prevent a one-off incident of this kind occurring.
Practical points
The notable aspect of this case from a practical perspective is that the Trust took multiple opportunities to set out and re-enforce equality and diversity principles and what constituted acceptable conduct throughout Mr Hammond’s employment with it, which stood it in good stead when a claim was brought.
Whether an employer is found to have taken all reasonable steps to prevent discrimination or harassment will obviously depend on the facts of the particular case, and the outcome may have been different if, for example, Mr Hammond had a history of making racially abusive comments that were not properly dealt with. Having said this though, this judgement provides helpful guidance and reassuring confirmation that it is possible to show that all reasonable steps have been taken.
Abigail McKean