What is the ‘all reasonable steps’ defence to a discrimination claim?

Employers have a duty to take all reasonable steps to prevent discrimination in the workplace (section 109(4), EqA 2010).

Discrimination occurs when an individual is discrimated against or treated less favourably due to one of the nine ‘protected characteristics’ outlined in the Equality Act 2010.

These characteristics include, age, race, religion or belief, sex, sexual orientation, disability, marriage and civil partnership, pregnancy and maternity, and gender reassignment.

If an act of discrimination occurs at work, an Employment Tribunal will look at a two-stage approach to determine whether the employer can argue that it should not be held responsible for the discriminatory act of its employee.

Question 1 – whether the employer took any steps to prevent the employee from engaging in the discriminatory act.

Question 2 – whether there were additional steps that the employer could have reasonably taken.

If the Tribunal concludes that the employer took all reasonable steps, rather than just ‘some steps’, there may be no need to proceed to the second stage test, especially if no further steps have been identified.

If the Tribunal concludes that all reasonable steps to prevent the discrimination have been taken, the employer will have a defence to the discrimination claim i.e. that it should not be held responsible for the actions of its employee.

In the recent NHS trust case, the Employment Appeal Tribunal ruled that:

1. the racist comment was not made “in the course of employment”.
2. the Trust had taken “all reasonable steps” to prevent discrimination.

But what are ‘all reasonable steps’?

In the above case, these included that the Trust:

• had conducted an induction session on dignity at work which introduced the Trust’s inclusive values.
• conducted annual performance assessments, discussing compliance with its inclusive values.
• displayed its inclusive values on posters in the workplace.
• conducted mandatory training every three years on equality, diversity and inclusion issues, which the employee making the racist comment had recently attended as part of a small group session.

The above examples offer a helpful reference for employers assessing whether they have taken all reasonable steps to be able to rely on the all reasonable steps defence in the event of a discrimination tribunal claim.

Comparatively, in another leading case, the Employment Tribunal took the view that the employer could not rely on the defence because it had not proven that it had taken ‘all reasonable steps’.  in that case there was a finding of inadequate inclusivity and diversity measures, and the related policies were outdated.

In order to try and rely on the all reasonable steps defence, employers should consider what all reasonable steps means in the context of their business.  This might include; –

• evaluate, update and communicate policies regularly on equality, diversity and inclusion (stale policies without regular updated training will not suffice).
• regular mandatory training and education for employees.
• cultivate an inclusive environment by showing support for minority groups both day to day and in team building activities (including social events).
• use diverse hiring practices.
• communicate and embed values around equality, diversity and inclusion.
• obtain regular feedback, including surveys.
• consider having diversity groups for specific minorities.
• allow easy reporting of (apps like safework.place can help)
• monitor reporting for patterns using apps like the above and take action to address issues.

It is essential that employers are proactive in advance of any claim arising to give them the best chance of being able to rely on all reasonable steps defence a discrimination claim.

If you are an employer wanting to discuss how your organisation can work towards taking all  reasonable steps to prevent discrimination claims and building you a defence shield in the event of any such claims, including the design and delivery of training and reporting systems, please do not hesitate to get in touch to see how we can assist you.

David Greenhalgh is a leading employment lawyer based at Bishopsgate, London.  David can be contacted here.

This page/article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.