Torque Law are an award-winning team of employment law solicitors based in York, and are a trusted partner of our Charities and Not-For-Profit team at BHP. In this blog, Partner & Specialist Employment Law Solicitor, Tiggy Clifford explores preventing sexual harassment in the workplace.
Defending discrimination claims in the Employment Tribunal – do employers have a get-out-of-jail-free card?
Employers will be liable if their employees (acting in the course of their employment) discriminate against others. However, employers can defend those claims if they can show that they have taken ‘all reasonable steps’ to prevent the wrongdoing.
This ‘all reasonable steps’ defence is often considered a ‘get out of jail free card’ for employers but has, historically, been incredibly difficult to use successfully, with the Equality and Human Rights Commission (EHRC) stating that an employer would only be considered to have taken all reasonable steps if “there were no further steps that they could have been expected to take…”
That’s where things get difficult.
There has to have been nothing else the employer could have been expected to do.
A near impossible standard, it was thought.
However, in the recent case of Campbell v Sheffield Teaching Hospitals NHS Foundation Trust & another (2025), we have seen that this defence is achievable for employers with the right foundations in place.
In this case, the Employment Appeal Tribunal upheld the Trust’s defence against a discrimination claim, finding that it had taken all reasonable steps to prevent racial harassment.
Here are the key steps taken by the Trust that employers can take note of and implement in their workplaces:
- Induction training for the perpetrator that covered:
- Expectations for acceptable workplace behaviour
- A strong emphasis on the Trust’s core PROUD values—dignity, trust, and respect for everyone
- Annual performance reviews, which explicitly assessed alignment with the PROUD values
- Posters reinforcing the PROUD values displayed in the work environment
- Mandatory equality and diversity training delivered in small groups every three years, which included clear guidance on respectful conduct and valuing difference
Having taken the above steps, on the facts of this particular case, the Trust was not liable for its employee’s discriminatory acts.
Whilst the above steps may not be sufficient in every case, this does give us a clear indication that it isn’t an impossible standard.
This case also gives us some hints as to what kinds of steps may be expected to comply with the new duty to prevent sexual harassment in the workplace, covered in an earlier guest blog by Rosie Cowling, which similarly requires anticipatory preventative steps to be taken by employers.
The key takeaway:
Both the ‘all reasonable steps defence’ and the ‘duty to prevent sexual harassment’ aren’t about how employers react after behaviour arises. Both focus on the preventative and proactive steps employers can take before any issue occurs.
This trend of placing the responsibility on employers to prevent issues from arising in the first place looks set to continue. Meaningful training, clear policies, and a culture of accountability can all tip the scales in an employer’s favour.
We regularly advise boards of trustees, management teams and staff on the measures which they should be taking to comply with their employment law obligations. Please get in contact with us if you’d like our support in implementing or reviewing your approach.
