For many employers, having an Anti-Harassment Policy is seen to be a tick box exercise. Policies are circulated but then quickly forgotten about and not revisited until an allegation of harassment has been made.
A recent case demonstrates how a proactive employer following best practice can avoid the reputational damage and financial cost of being found liable for harassment, and shows why employers should do more than just provide an equality policy to the employee.
In a recent case of Kaur and Rehan v Capital Retail Financial Services Ltd and Woodhouse, an employment tribunal made an unusual decision in which it found a manager personally liable for racial harassment, whilst finding the employer not liable, on the basis that it had taken all reasonable steps to prevent harassment in the workplace.
The Tribunal’s findings set out its reasoning as to why the employer should not be liable. Here the employer had taken a number of steps; not only had it provided employees with a detailed handbook which included policies on promoting equality and diversity, but also on bullying and harassment. It had evidence that the handbook had been signed for and confirmed as having been read, it had providing annual training on the topic of diversity to all employees, (with a higher level of training for managers) which was refreshed annually, and the employer had supplemented these steps with the occasional email communication reminding staff of the equality message from time to time. The tribunal also took into account that the individual manager here had received additional training for unconscious bias in recruitment, during which similar principles were involved. It was also helpful that in witness evidence, witnesses accepted that it was clear to employees that the type of comment allegedly made by the manager would have been unacceptable in the workplace.
The case demonstrates that section 109(4) of the Equality Act 2010 can provide a useful defence to employers in a harassment case such as this. The case also shows that "all reasonable steps", although always fact dependent, requires much more than simply having a policy in place. Here, the court's decision took into account that the employer had a suite of measures supporting a consistent message that harassment was unacceptable. Employers may wish to consider whether their own policies and practices would enable them to run a similar defence, and consider whether to highlight to employees in their annual anti-bullying/harassment training that in the present case, it was the individual who was personally liable and ordered to pay in the region of £1,300 to each of the two employees.
However, it should be noted that, whilst this case is encouraging for proactive employers, it may not always be the case that they can avoid liability. In this instance, the allegation of harassment was limited to a one off incident of harassment and there was no connected dismissal of the employee bringing the claim. The manager also accepted in evidence that he knew the alleged behaviour would have been considered inappropriate by the company and the injury to feelings award was of a relatively small amount that could be paid for by an individual. However, in cases where there are a number of connected claims relating to harassment/ discrimination/ unfair dismissal, more significant awards of compensation made and where the evidence is not as clear cut then it may be harder for the employer to separate themselves from such claims to avoid being found liable.