Defending discrimination claims - have you taken all reasonable steps?

When businesses are faced with an Employment Tribunal claim for discrimination, their lawyers ask early on whether they have an up-to-date diversity policy and provide staff equality training. This is because an employer may avoid liability for the discriminatory acts of an employee if it has taken all reasonable steps to prevent the employee committing such acts. However, a recent case illustrates how far employers have to go in order to establish this defence.  It makes for sobering reading. 

The claim was for discrimination because of gender reassignment.  It failed because the Tribunal ruled that the claimant had not proved that the alleged acts actually took place.  However, the Tribunal went on to consider whether the employer would have been able to establish the "all reasonable steps" defence and decided that it would not.  

In particular, the employer had failed to do the following: 

• update its policies - they had not been updated since 2007 and referred to pre-Equality Act legislation;

• state that its equal opportunities policy applied to agency workers; 

• focus on inclusion as well as equality - i.e. make it clear that staff with diverse characteristics were welcomed and supported; 

• make the policies easily accessible to staff (many of whom were not office-based).  The Tribunal suggested attaching the policies to online payslips;

• create employee representative groups, for example an LGBTQ+ group;

• raise awareness of transgender issues and inclusion. The Tribunal highlighted the fact that one of the employer's witnesses did not know the meaning of the words "cis" or "trans". We suspect that many employers have staff who would struggle to define these words clearly, highlighting the importance of training; and

• create an equal opportunities policy which complied with the EHRC Code of Practice (e.g. providing examples of unacceptable behaviour).  

In our experience, even well-meaning businesses with in-house HR or legal teams may fall short of some of these standards.  Although the employer in this case was a large organisation (and so expected to do more than a smaller business), there are lessons in this case for businesses of all sizes.  For example, it's worth updating equal opportunities policies so that they deal with diversity and inclusion as well as equality.  Regular training is also essential, to ensure that staff are aware of changing norms around language and behaviour.  Employers should see equality and diversity as an ongoing project of cultural change, rather than a one-off compliance task.