Employers will be liable for the discriminatory acts of their employees in the course of employment unless they have taken ‘all reasonable steps’ to prevent the wrongdoing.
Whether all reasonable steps have been taken will be fact-specific and the hurdle is a high one; the Equality and Human Rights Commission (EHRC) stated in its Statutory Code of Practice that “an employer would be considered to have taken all reasonable steps if there were no further steps that they could have been expected to take…”
The scope of the defence was recently considered by the employment tribunal (ET) in Fischer v London United Busways Ltd, a gender reassignment discrimination case. Although the claimant failed to establish that the alleged discrimination occurred, the ET nevertheless considered the employer’s assertion that they could have relied on the ‘all reasonable steps defence’ because they had appropriate policies in place which were communicated to staff, a zero tolerance attitude to enforcement of those policies, a supportive ‘speak-up’ culture for reporting concerns, and concerns raised by the claimant had been investigated. This type of approach is common amongst employers, so the ET’s finding that the respondent in this case had not taken ‘all reasonable steps’ acts as an important reminder to employers that making use of the reasonable steps defence is often not as simple as that and employers may not be being as ‘reasonable’ as they think they are.
The ET provided valuable guidance for employers as to the steps that ought to be taken to have good prospects of being able to make use of the defence. The guidance is summarised below:
- Policies: employers should have appropriate policies in place showing their commitment to equal opportunities and anti-bullying and harassment (no surprise there). However, the mere existence of a policy is not enough in itself – policies must be regularly reviewed and updated, refer to current legislation and be consistent with current guidance and best practice. In this case, the policy failed to reference the Equality Act 2010, and had seemingly not been updated since 2007.
- Awareness: individuals need to know that the policy applies to them – both in terms of whether they are protected by the content, and whether they are expected to comply with it. In this case, the respondent engaged a high volume of agency workers (including the claimant), but the policy did not make it clear that it applied to them. While many policies will clearly be stated to apply to employees, consideration should be given to whether it is clear when they apply to other groups, including agency staff, and job applicants.
- Inclusion: inclusion is just as important as equality, and policies should reflect that. The claimant in this case, a transgender woman, stated that she did not feel a sense of belonging at work, and the ET considered that her employer’s policy could have done more to set expectations around inclusion of people with diverse characteristics. The ET opined that the tone of a policy was important, and that it should make clear that the skills, experiences, characteristics and perspectives of all employees will be celebrated.
- Communication and Training: it is not enough that an employer’s policies are on display and theoretically accessible, they also have to be prominent or regularly communicated to the workforce. In this case, it was found that while the respondent’s Equal Opportunities and Harassment policies were on display on noticeboards in the depot, this was in an area where the workforce spent only small portions of their working day. In that context, the ET held that where the policy is not prominent, it is necessary for the employer to provide regular and refreshed training and communications, emphasising the importance of equality, diversity and inclusion. The ET gave the following examples of effective initiatives: attachments accompanying digital payslips, or printed leaflets or other forms of communication being left in areas that the workforce spent a notable amount of their time. Training is a vitally important means of raising awareness and inclusivity. Training should include education on the correct language and terms used in regard to relevant minority groups. For instance, in this case training was found to be required in respect of terms such as “cis” and “trans”.
- Employee representative groups: it is important employees comprising minority groups are encouraged (or at least enabled) to establish representative groups, such as an LGBTQ+ representative group, or a minority ethnic representative group. As well as providing a safe space for minority groups, support from an employer for such initiatives would be a meaningful step towards making all employees feel welcome and would help facilitate the development of ideas for how employers can improve enrich the experience and integration of minority groups.
While the above guidance is from an ET decision, and is therefore not binding, it is nonetheless a helpful guide for employers navigating not only transgender issues in the workplace, but issues relating to any minority group. It is also an invaluable reminder that employers should not be complacent about their important role in preventing discrimination (of any kind) in the workplace, with there being a clear expectation that they should be proactive around policies, training and awareness initiatives.