“All Reasonable Steps” defence against vicarious liability (section 109(4))
This is not the new third party sexual harassment provision (which currently involves “reasonable steps” and not “all reasonable steps”), but the defence within s.109 against vicarious liability in discrimination complaints.
Section 109(4) provides:
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.
The defence is notoriously difficult to make out.
The best example is Zulu and Gue v MOD (ET/2205687/2018 and ET/2205688/2018).
In Zulu, the usual approach was followed that the tribunal should first identify what steps were taken, then whether there were further reasonable steps that had not bene taken. The claimants proposed 11 steps that could have been reasonable steps. The tribunal found only two of the 11 steps to be reasonable steps that had not been taken:
- Failing to maintain a comprehensive equality and diversity log
- Failure to ensure that annual equalities training was adequate
That alone meant that not “all” reasonable steps had been taken.
Thus the respondents could not rely on the defence and was vicariously liable for any harassment once proven.
