Case Study
The Employment Appeal Tribunal (“the EAT”) has handed down a very useful judgment in the case of Campbell v Sheffield Teaching Hospital NHS Trust– where the employer was able to establish that they had taken all reasonable steps to prevent harassment and thus were not liable for an individual employee’s acts.
We are always being asked what amounts to “reasonable steps”, and we encourage all clients to invest in training and focus on awareness. This is therefore an encouraging finding from the EAT, and it is relevant to all employers.
Mr Campbell was a Trade Union secretary also employed by the Sheffield NHS Trust. A colleague of his (and fellow employee of the NHS Trust) made a racially abusive comment to him during a dispute over subscriptions.
In the subsequent Employment Tribunal (“ET”) claim, the NHS Trust argued that the incident had not taken place “in the course of employment” and so they were not liable.
Case Study
The ET and the EAT agreed with this, but also found that they would not have been liable for any employee acts which had been done within the course of employment, because they had taken all reasonable steps to prevent such an incident occurring.
So what had the employer done so well as to successfully establish the reasonable steps defence? Well, they were commended on the fact that:
Whether an employer is found to have taken all reasonable steps to prevent discrimination or harassment – and therefore whether they can effectively make out the defence to the satisfaction of an Employment Tribunal- will always depend on the circumstances of each individual case.
The above findings provide very useful guidance and support what we already know, and it would have been different where the employer had not provided the training (and refresher), or where the expected standards of behaviour were not reinforced via posters and clear expectations. Although not covered in this case, it is also relevant to look at whether managers uphold and promote the values, too. For example, overlooking incidents or failure to deal with issues would likely have scuppered this defence.
Looking to the future, we anticipate that when the Employment Rights Bill comes into force, employers will be under an increased duty to take all reasonable steps to prevent sexual harassment in the workplace (currently the duty is to take reasonable steps- not all reasonable steps). Time will tell, but it is likely that the provision of regular training, clear publication of policies and visible upholding of values will assist employers seeking to meet this requirement.
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