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.
- The correct approach is the two-stage approach referred to in Canniffe v East Riding of Yorkshire Council. First, the tribunal must identify whether a respondent took any steps at all to prevent the employee from doing the act or acts complained of. Second, the tribunal should consider whether there were any further steps the employer could have taken that would have been reasonably practicable.
- To establish the defence, an employer need not actually prevent an employee making inappropriate comments to a person of a different race or gender (which would be very difficult) but must take such steps as are reasonably practicable to that end. Having a policy in place, implementing it and taking it seriously is as much as an employer can do. The employer is not required to prevent discrimination occurring, rather it must take such steps as are reasonably practicable to prevent it.
What you should do
- Understand that this decision should not be taken as a carte blanche for employers simply to adopt a policy but not act on it. This case turned on its own facts, so if there is good reason to think that, for instance, a manager is harassing a junior employee, the employer cannot simply rely upon having a policy, no matter how seriously the employer takes it. More would be needed – for example, carrying out a speedy and thorough investigation as soon as you are aware of a problem.
- Make sure you have an effective policy that is backed up through training and monitoring for all employees. This will be important evidence that you have properly implemented it.