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Caspersz v Ministry of Defence
Employment Appeal Tribunal

Harassment and the "reasonable practicable steps" defence

An employer may be able to avoid liability for sexual harassment committed by an employee in the course of employment if it can prove that it took the necessary preventive action. The Sex Discrimination Act provides a defence for employers that can prove they took such steps as were reasonably practicable to prevent employees from committing the particular act of discrimination or committing such acts generally.

In this case, the Employment Appeal Tribunal (EAT) upheld a tribunal's finding that an employer had taken reasonably practicable steps to avoid an employee being sexually harassed by another, as it had in place a 'Dignity at Work' policy and produced evidence to show that it took implementation of that policy seriously.

Sexual harassment claim

The claimant, Ms Caspersz, was a staff officer to the assistant chief constable, personnel and training, in the Ministry of Defence (MoD) police force. She complained she had been subject to sexual harassment by the assistant chief constable, McDermott.

Caspersz claimed he had made a comment to her about her "working her way through" male students at the MoD and, in a separate incident, that he suggested to her that she had been able to use some MoD "indulgence" flights as she must have "stepped her way through enough pilots" to enable her to do so.

Caspersz brought claims for sex and race discrimination in the employment tribunal, which were dismissed. The tribunal found that the MoD had done everything reasonably practicable to prevent the harassment taking place and therefore had a defence to Caspersz's claim. The MoD had a Dignity at Work policy in place, which it took seriously, and had taken all reasonable steps to investigate the complaint as soon as it was made aware of the allegations relating to sexual harassment against McDermott.

Caspersz appealed to the EAT on the grounds that the tribunal had failed to take into account her other complaints against McDermott, which showed that while the MoD had a Dignity at Work policy, it was merely paying lip-service to it. The EAT dismissed the appeal. On the facts, the MoD had satisfied the requirements of statutory defence.

Key points

• The correct approach is the two-stage approach referred to in Canniffe