Lawyers love this word ‘reasonable’ – I would go as far as to say that we spend an unreasonable amount of time debating what reasonable means! 

Clearly, more outside interests are needed. But it’s a key phrase, even more so given the recent requirement that employers take reasonable steps to prevent sexual harassment in the course of employment.  With that in mind, any tribunal decisions, interpretations or guidance are welcome.

EAT concluded the employer had taken all reasonable steps to prevent racial harassment and so was not liable for the actions of an employee.

Summary of case details

Mr Hammond was employed by an NHS Foundation Trust in Sheffield. Mr Campbell was the branch secretary of UNISON and had an office within the hospital near where Mr Hammond worked. Mr Hammond had been a member of that union but had for some time wished to halt his membership and cancel his subscription. The union had, however, continued to take his subscription from his pay, and Mr Hammond had spoken to Mr Campbell about this on several occasions.

The matter came to a head when, in October 2020, Mr Hammond went to see Mr Campbell in his office during a work break.  When he was told that he would not be reimbursed for subscriptions taken after he had indicated he wanted to leave, Mr Hammond became angry and referred to Mr Campbell using an overtly racist term.  Mr Hammond is white, and Mr Campbell is black. 

Mr Campbell subsequently brought a claim for racial harassment. At tribunal, the Employment Judge found that i) the comment had not been said in the course of employment and hence the trust was not liable for Mr Hammond’s actions, and in any event ii) the trust had taken all reasonable steps to prevent racial harassment within the workplace. The Employment Appeal Tribunal upheld the tribunal’s decision.  It’s this latter point that is of interest in this blog. 

Learning points

Whilst the details of the case are useful for context, what is more useful for employers is to understand what steps the Trust had taken to prevent harassment in the workplace, which meant that they were deemed to have taken all ‘reasonable steps’. Whilst this case does concern specifically racial harassment, the ‘all reasonable steps’ defence does apply to all claims of harassment under the Equality Act 2010, whatever the protected characteristic. 

The tribunal and EAT deemed the following, all reasonable steps.

• Induction sessions for all employees where acceptable behaviour at work was addressed and core values of affording dignity, trust, and respect to everyone emphasised
• Annual performance assessment of employees addressed whether employees were acting in accordance with core values
• Posters in work areas which reiterated the values of the Trust
• Mandatory training every three years – small groups and promoting a positive attitude towards equality and diversity by showing respect for others, valuing people’s differences and treating people with dignity 

With that in mind, and remembering a previous case where the tribunal gave further guidance on this point, we would advise employers to consider the following;

• Does your organisation have a strong set of values that are easily accessible and can be readily promoted through posters/updates, etc? More complex policies and procedures are clearly key, but having some concise take-away values helps communicate the message to employees more succinctly.     
• Are these values considered in line management reviews? With more accessible values, this makes it easier to help employees measure and assess their behaviours. Could adherence to the organisation’s values be part of ongoing line management? Are there other ways they could be embedded into your organisation? 
• Is your training offering practical and applicable? Mindful of the financial pressures on employers currently, it is unlikely that there is a sizeable budget for complex and expensive training products. However, training is a key part of this picture, and so employers may want to consider different ways of running training sessions. As with this case, sessions could look like discussion groups led by the HR team to chat over the organisation’s values and give employees the opportunity to ask questions and engage in a more meaningful way. In terms of regularity, the tribunal seemed happy to accept these sessions occurring every three years.  It was perhaps a happy coincidence for the Trust that Mr Hammond’s session had occurred only days before the incident. 
• These steps can be linked in with the duty to take reasonable steps to prevent sexual harassment, as we have noted in our previous blogs, training and clear messaging, and policies are a key part of meeting this preventive duty.  Whilst the EHRC do state that sexual harassment must be explained clearly within any relevant policies and a zero-tolerance approach to sexual harassment emphasised, fulfilling this duty can form part of the bigger picture of changing the culture of an organisation to one that is aware of its values and seeks to practise them and change behaviours. Whilst those keen-eyed amongst you will note that the duty is only to take reasonable steps, it’s worth noting that the Government intend, by virtue of the Employment Rights Bill 2024, to extend that out to “all reasonable steps” so mirroring the existing defence and bringing some consistency. 

How can we help?

• We can offer training packages: bespoke training packages which can be written and presented according to your training needs and budgets.
• We can help draft policies and values-based documents, helping ensure you meet the requirements of the Equality Act 2010 and the guidance from recent case law.
•  We have a Risk Assessment Package to help organisations meet the requirements under the new duty to prevent sexual harassment. This is a key tool to help assess your organisation for risks and put in place the necessary steps, checks and balances to meet the duty.     
• We can offer specific advice on discrimination claims: these claims can be complex, lengthy and expensive, so do contact jackie.morris@anthonycollins.com, who leads our tribunal work, if you need specific advice on a claim.

Contact us if you would like more information on this case or how we can help.