|What is the issue?|
All discrimination legislation includes protection against harassment on the basis of an individual’s age, sex, religion, sexual orientation, race or disability. The definition of ‘harassment’ is the same in all discrimination legislation.
Harassment occurs where on discriminatory grounds (e.g. sex./race/disability etc) an individual engages in unwanted conduct which has the purpose or effect of:
- Violating another person’s dignity;
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
An employer is able to avoid liability for harassment committed by an employee in the course of their employment, if it can prove that it took such steps as were “reasonably practicable” to prevent the perpetrator from committing the act of harassment. This is known as the statutory defence.
It has been notoriously difficult for employers to successfully argue the statutory defence at Tribunal hearings. In the recent EAT case of Capersz v Ministry of Defence1 , the MoD were able to successfully argue this defence and the EAT decision provides useful guidance as to what is required from employers.
|What did the EAT decide?|
The EAT held that the tribunal was correct to approach the matter in two stages. First, it considered whether the employer had taken any steps at all to prevent the harassment. It then went on to consider whether the employer could reasonably have taken any further steps.
The EAT stated that the employer needed to show that it took steps and that those steps were calculated to prevent the employee from harassing the victim. A tribunal is entitled to consider the effect that the steps were likely to have and not whether the steps were actually effective in preventing the harassment from taking place. It is not enough to simply have a policy that invites no more than lip service. What is key is that the policy is actually implemented.
|What impact does this have for business?|
Whether an employer is able to show that it has taken such steps as are reasonably practicable will depend on the circumstances of each individual case.
An employer may benefit from the statutory defence if:
- There is a relevant and current equal opportunities policy dealing with the specific discrimination alleged; and
- Employees are provided with equal opportunities training covering the relevant area of discrimination and are also provided with regular refreshers; and
- The employer can show that it takes discrimination very serious, this will include thoroughly investigating any allegations of discrimination promptly and taking appropriate action against the perpetrator.
The EAT warned that their decision should not be taken as a ‘carte blanche’ for employers to simply adopt a policy and do no more. This emphasises the importance of training employees and raising awareness of the Company’s policies on discrimination.
Capersz v Ministry of Defence UKEAT/0599/05 3 February 2006.