‘All reasonable steps’: introducing your new HR obsession
During a recent webinar delivered as part of our Employment Rights Act Update Service, Darren Newman made a very interesting point about the way in which the concept of ‘all reasonable steps’ is going to flex under the imminent ERA 2025 changes. In this week’s blog, we consider his point – and why we think it means that ‘all reasonable steps’ is going to become HR’s new obsession.
‘All reasonable steps’ – the origin of the phrase
The phrase ‘all reasonable steps’ is not a new one. In harassment cases under the Equality Act 2010 employers are able to defend a claim for harassment on the basis that they took ‘all reasonable steps’ to prevent it. The defence is narrow and very hard to run successfully. Many employers will run the defence in the early stages of a tribunal claim only to quietly drop it in the face of an obvious inability to provide the evidence required to demonstrate that they had done it ‘all’.
What the defence currently involves
In Canniffe v East Riding of Yorkshire Council, the Employment Appeal Tribunal stated that a tribunal should take a two-stage approach to the ‘all reasonable steps’ defence. First, it should look at what steps the employer took. It should then consider whether there were other reasonable steps that it could have taken. If any other reasonable steps exist, then the defence will fail.
How ‘all reasonable steps’ is flexing in the future
The Employment Rights Act 2025 will, from October this year, introduce employer liability for harassment committed by third parties. The relevant subsections being inserted into s40 Equality Act state:
“(1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A.
(1B) For the purposes of subsection (1A), A permits a third party to harass B only if—
(a) the third party harasses B in the course of B’s employment by A, and
(b) A failed to take all reasonable steps to prevent the third party from doing so.”
The idea that employers could be liable not just for the harassing acts of their employees (who they have a large degree of control over) but also for the harassing acts of third parties such as visitors, clients, customers and suppliers (who they have much less control over) places a worrying burden on employers.
Whilst detail and guidance on this new legal obligation is awaited, it is interesting to note that the concept of ‘all reasonable steps’ is positioned differently for third party harassment. Rather than forming a defence to what would otherwise be a successful harassment claim (which is how it works for employee-on-employee harassment), it actually forms part of the offence itself. The employer will only be liable if the employee can show not just that harassment occurred but that the employer also failed to take all reasonable steps to prevent the third party from harassing.
Rather than placing a positive duty on the employer to prove ‘all reasonable steps’ were taken, it places the burden on the employee to show that they were not.
What this means for employers
Where third party harassment is alleged, it is often going to be difficult for the employer to gather evidence which demonstrates that it did not occur. In particular, witness statements will be harder to come by and commercial sensitivities may mean that the employer does not want to hound the third party for information. Assuming this is borne out in practice, the whole focus of this new claim will be on whether or not the employer failed to take all reasonable steps to prevent the harassment from occurring. This places ‘all reasonable steps’ at front and centre for HR in the future.
Although the burden might be shifting on ‘all reasonable steps’ (at least insofar as third party harassment is concerned), employers are still going to need to approach the concept in the same way. Employers need to take all reasonable steps to prevent third party harassment. If an employer’s risk assessment identifying those steps is comprehensive, it is going to be that much harder for the employee to find something which they hadn’t done (which is the burden placed on the employee under the new law).
Top tips for employers as they prepare for this new legal landscape
- Undertake a full risk assessment of third-party harassment risks in your workplace. Keep this under regular review.
- Take all reasonable steps as highlighted by the risk assessment to reduce third-party harassment risk. This might include erecting notices, putting protocols in place, implementing ‘buddy’ systems and promoting clear lines of harassment reporting.
- If you identify a step which could be taken but conclude that it would not be reasonable to take it then make a clear note of this decision and why it was taken.
- The new claim applies to third party harassment which occurs in the course of the victim’s employment. Consider carefully the potential scope of ‘in the course of your employment’ for your business (it can potentially apply to situations away from the physical workplace and to high-risk occasions such as client social events).
- Do not back-load the taking of action. Remember, the positive duty to prevent sexual harassment already applies to harassment by third parties. An employer’s third-party harassment obligations are not coming from a standing start in October, and neither should an employer’s ‘reasonable steps’.