Mitigating liability in discrimination claims – have you taken all “reasonable steps”?
Employers do not always appreciate that they will be legally responsible for acts of discrimination, harassment and victimisation by their workers in the course of their employment regardless of whether they knew about or approved of what the worker did.
This issue is of particular relevance in the aftermath of the #MeToo movement as we have seen a sharp increase in the number of sexual harassment allegations that are being raised.
Employers often overlook the fact that acts done “in the course of employment” can include acts that take place in locations classified as an extension of the workplace such as at leaving drinks at a pub, Christmas parties or office away days.
So how can an employer put itself in the best position to protect against claims if incidents of this nature do occur?
An employer will not be held vicariously liable for acts of discrimination or harassment if it can show that it has taken all reasonable steps to prevent the worker from acting unlawfully.
What does this actually mean in practice?
- Employers should have an Equal Opportunities and Anti-Harassment and Bullying policy in place which set out what is expected of its employees;
- It is important that somebody is given responsibility for implementing the policies and that they are reviewed regularly;
- The policies should make it clear that any unlawful discrimination will be treated with the utmost seriousness and is likely to be deemed gross misconduct;
- Employees should be made aware of the policies and their implications and the employer should keep adequate records to demonstrate that employees have been made aware;
- Employees should be provided with training on equal opportunities and harassment issues and such training should be regularly refreshed and records kept;
- Employers should handle complaints in a prompt fashion and treat them with the priority and seriousness that they warrant, taking disciplinary action where appropriate;
Are you confident that your organisation has taken all of the steps set out above? If not, it is vital that you act now. Don’t wait until you receive a claim before acting because, at that stage, it will be too late to run the “reasonable steps” defence.
Don’t forget that we are here to make your life easier. We can draft and review policies, provide training for your employees on equal opportunities and harassment issues and provide guidance in the event that a complaint is made. For further information please contact Camilla Beamish.
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