An employer can establish a statutory defence in respect of harassment by employee if it can show that it took “all reasonable steps” to prevent the harassment occurring. In practise, employers rarely use this defence because of its high threshold.
In Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust [2025], the employee was the Branch Secretary of a recognised union. His colleague was also a member of the union and had a disagreement with him regarding his membership, which escalated to the point that the colleague made a racial comment to the employee. In this case, the Employment Appeal Tribunal (“EAT”) held that the employer would not be liable for the racial harassment because it was in respect of trade union activities, which is separate to the course of employment. However, it noted that the employer had taken “all reasonable steps” to prevent the harassment so would not have been liable in any event.
The employer had carried out the following preventative measures:
- An induction session on “PROUD values” for all employees to emphasise respect and “acceptable behaviour at work”
- The colleague had undergone annual performance assessments which involved assessing whether he had acted in accordance with the PROUD values
- PROUD posters displayed where the colleague worked
- Mandatory equality and diversity training every three years in small groups that the colleague had completed shortly before the incident
The EAT confirmed that the correct approach in establishing this defence is to consider (i) what steps were taken and (ii) whether there were any further reasonable steps that could have been taken. No further potential steps were identified in the evidence or submissions, and so the Tribunal was entitled to reach the conclusion that “all reasonable steps” had been taken by the employer.
This case is an example of how to establish “all reasonable steps”. Sexual harassment is an increasing concern for employers following the implementation of the duty to prevent sexual harassment in the workplace since October last year. The Employment Rights Bill proposes to make the duty more onerous by changing the wording of the duty from taking “reasonable steps” to “all reasonable steps” to prevent sexual harassment. Whilst an employer can already rely on the statutory defence, as it is applicable for all types of harassment, this amendment is intending to mirror the statutory defence wording to provide clarity that an employer is unable to rely on a lower threshold of “reasonable steps” for sexual harassment liability.
This case emphasises that employers will be required to show that they have considered potential preventative steps and implemented such steps if they are reasonable in order to avoid liability. The assessment is done on a case-by-case basis, in consideration of the level of risk, resources of the employer and other relevant factors.
