Have you ever worried about what happens if one of your employees says or does something that could be considered discriminatory? Are you still liable to discrimination claims even though it’s no fault of yours that this person has said or acted in the way that they did? The bad news is that you can be held vicariously liable. The good news is that you may have the protection of what’s known as the statutory defence.
The statutory defence can be found at section 109(4) of the Equality Act 2010. It states:
“(4) In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A from doing that thing, or from doing anything of that description”.
Discrimination Claims & A Complete Defence
Employers must be able to show:
- What, if any, steps you took to prevent your employee from doing the act or acts complained of in the course of their employment;
- and show that there were no other reasonably practicable actions that you could have taken.
It is in fact irrelevant whether the steps that you took were actually effective. You only have to show that they were the only reasonable steps that you could have taken, that you took them and that you anticipated these actions would be effective.
So, what do you need to do?
- 1. Ensure that all your policies that relate to discrimination, harassment, equal opportunities etc are up to date.
- 2. Make sure those policies have been effectively communicated to your employees.
- 3. Provide training to staff on your policies and what they mean, on diversity and equality of opportunity and on how discrimination can appear in the workplace.
- 4. Regularly review and update both the policies and the training.
- 5. Use them and ensure they have been utilised in an appropriate way when issues have occurred within the workplace.
- 6. Keep good, contemporaneous records of all steps taken when seeking to prevent or address workplace discrimination so that in the event a claim is made, you are in the best possible position to successfully argue the defence.
It’s actually quite straight forward, as long as you follow the simple steps outlined above. Get in touch with our legally qualified team of Employment Law Consultants for practical guidance with any specific discrimination claims queries you may have.