Are you doing enough to promote equality and diversity in your workplace?

Julie Bann and Christian Grierson outline the law and report on the steps being taken by different organisations to promote equality and diversity in the workplace.

In the most recent Sharpe Minds Employment Forum we considered when an employer will be vicariously liable for the acts of an employee, how an employer can run an ‘all reasonable steps defence’ and finally a look at the proposed new obligation to prevent sexual harassment in the workplace. This article outlines the law and reports on the steps being taken by different organisations to promote equality and diversity in the workplace.

Sharpe Minds

The Sharpe Minds Employment Forum is a series of employment roundtable breakfast meetings which are held monthly. Unlike a standard webinar they offer the opportunity to meet with senior peers and to discuss and share best practices, legal updates and discuss new initiatives. If you would like to attend future events, you can request the details of the upcoming events from This email address is being protected from spambots. You need JavaScript enabled to view it..

Liability and a Defence

An employer is vicariously liable for discriminatory acts carried out by one of its employees in the course of their employment. Even if the employer did not have knowledge of the acts or had not approved the actions, they may still be liable.

In determining what acts and circumstances an employer may be liable for, the key wording to consider is: ‘in the course of employment’. An Employment tribunal will adopt a common-sense approach as to whether the employee was acting in the course of their employment. This involves considering whether the discriminatory act took place on premises, during working hours, who else was present, if it was out of working hours and whether there remained a link with work. The straightforward examples are when one employee harasses another in the office this will almost always be covered but if an employee is abusive to another at a sports event on the weekend this is less likely to be covered.

The grey area is more in relation to social events that are attended by employees either in lunch breaks or immediately after work. The employer must be alive to the fact that such events could retain a sufficient link to be considered in the course of employment and as such the employer could be liable for any discriminatory conduct by its employees at such events.

The Defence

However, an employer can resist liability for acts of its employees if it can establish that it took ‘all reasonable steps’ to prevent the employee from doing the discriminatory act.

To run an ‘all reasonable steps’ defence, the employer must demonstrate, that they had taken all sufficient measures before the act to prevent the discriminatory behaviour. The Tribunals have set a very high threshold which make it a  difficult defence to succeed on. It would only take a Claimant to highlight one additional step that would have been reasonable to take for the defence to fail. The key, therefore, is to have a carefully documented proactive approach to equality and diversity including but not limited to the following steps;

• a policy and related procedures which is reviewed and revised regularly;
• a comprehensive induction and regular refreshers for staff (especially when policies and revised) through supervision, appraisals or team meetings repeating the organisation’s zero tolerance approach; and
• an effective process for staff to raise concerns and evidence that employees are listened to, and prompt action is taken.

What are organisations currently doing?

The participants in the Sharpe Minds event, agreed that equality and diversity was not a tick box exercise and inserting a policy into the staff handbook and providing some training is not an effective shield against liability for harassment and discriminatory practices.

We discussed the fact that all reasonable steps effectively means an organisation-wide response to promoting tolerance. This includes top-down promotion of new training, initiatives and policies as well as creating effective and accessible routes for employees to not only feed into policies but also to report concerns. While robustly investigating a complaint will not support a reasonable steps defence to that specific complaint, evidence that managers do recognise and take prompt action to stop discrimination, will be one measure in preventing future unacceptable behaviour. Swift action provides employees with reassurance that they will be listened to but will also support a defence for future claims.

Positive action among our participants included:

• Partnering with external organisations and schemes such as the Disability Confident Scheme and Halo Collective to undertake staff consultation and surveys and acting on any recommendations.
• Undertaking Equality Impact Assessments on all reports and policy and operating good structures for disseminating key information on revised or new policies throughout the organisation.
• Creating an EDI Action Plan & consulting all Networks and collaborating on new policies or revising existing ones before they are finalised. A 360° review to get buy in.
• Listening to stakeholders and being open to challenge and constructive feedback and importantly acting on it and updating employees on actions taken.
• Ensuring that managers discuss equality and diversity at team meetings, one to one or appraisals as a fixed agenda item.
• Considering blind recruitment practices and considering different platforms for advertising vacancies such as Instagram or linked in to attract wider diversity.
• Requesting feedback on how confident staff are in raising concerns and ensuring that the format for raising concerns is accessible to all employees.
• Positive discrimination practices if appropriate.

New Duty to Prevent Sexual Harassment

In summer 2021, the Government released its response to the sexual harassment consultation. The Government has confirmed that they intend to introduce a duty for employers to take ‘all reasonable steps’ to prevent sexual harassment in their workplace. Crucially, under the new duty an employer could potentially be liable for failing to take these actions without the need for an incident to have occurred. If this becomes law, it could have major implications for employers.

If employers have already established the above proactive measures, they will have a solid platform to comply with the proposed duty.

We can provide the slides from the event together with an Equality and Diversity flowchart, which gives some guidance on how employees at each level of an organisation are accountable for or can engage in taking steps to prevent discrimination. If you would like these resources, then please contact This email address is being protected from spambots. You need JavaScript enabled to view it..

Julie Bann is a Partner and Christian Grierson is a Solicitor at Sharpe Pritchard LLP.

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This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.