If your employee does something that could be seen as “discriminatory in the course of their employment”, then as an employer you can be held “vicariously liable” on behalf of your employee.
Vicarious liability involves making an employer liable for the legal wrongs committed by an employee.
However, section 109 of the Equality Act 2010 provides an employer with a statutory defence, if they can show that they took all reasonable steps to prevent the employee from doing that wrongdoing.
What “all reasonable steps” means
The courts have made it clear that this burden is a high one – section 109(4) does not refer to “some reasonable steps” or only “such steps as were guaranteed actually to affect employee behaviours” or “all the steps which would have been enough had some of the training attendees not been such utter clowns”!
Employers must be able to show:
- What robust steps they took to prevent their employee from doing the act or acts they are accused of.
- That there were no other reasonably practicable actions that they could have taken.
It does not matter if the steps the employer took were effective.
Just if they were the only reasonable steps that the employer could have taken, and the actions taken were anticipated to be effective.
What are the reasonable steps?
- To ensure that all your policies relating to discrimination, harassment, equal opportunities, and diversity are up to date.
- To ensure that these policies have been effectively communicated to your employees and introduced into the workplace.
- To 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.
- To regularly review and update both the policies and the training.
- To keep good, up-to-date records (as they occur), of all the steps you have taken when seeking to prevent or address workplace discrimination.
In taking these steps, an employer will be in a good position to demonstrate they have taken all reasonable steps to prevent discriminatory behaviour.
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