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Employer could not rely on defence of taking all reasonable steps to prevent harassment

The Employment Appeal Tribunal has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another due to the fact that the equality and diversity training delivered to employees 20 months prior to the harassment was “stale”.  In particular, there was evidence that the training was insubstantial and that employees had forgotten it.  It was also appropriate to find that a further reasonable step could have been to offer refresher training.  Therefore, the employer could not show that all reasonable steps had been taken.

There are few reported cases that consider the reasonable steps defence. However, in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately, it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps to prevent discrimination.