The decision in Ajiga v Hertfordshire Partnership University NHS Foundation Trust is a case which considered issues of alleged racial harassment but the decision, which stresses the importance not just of having a relevant policy but being able to evidence its application is also of relevance in other scenarios. The same principle applies with any anti-harassment and bullying policy, similarly with a safeguarding policy. Employers need to show that not only does a policy exist, but that it can be demonstrated that the policy was live, understood, refreshed, accessible and acted upon in practice.

What happened in Ajiga?

The claimant was a Nigerian agency healthcare assistant who carried out shifts at premises operated by the Trust. During a conversation at work, an employee of the Trust compared the claimant’s hair to coronavirus.

The claimant brought a claim for harassment related to race against the individual employee and also pursued the Trust on a vicarious liability basis. The claim succeeded against the individual employee, but not against the Trust.

The Employment Tribunal accepted that the Trust had taken all reasonable steps to prevent the harassment. In particular, the Trust had provided diversity and equality training, refresher training, and had relevant policies in place, including an Equal Opportunities Policy and a Harassment and Bullying Policy. Those policies were not merely generic documents. They set out the Trust’s zero tolerance approach and gave examples of conduct that could amount to harassment, including insults, offensive language, inappropriate jokes and ridiculing behaviour.

Crucially, the Tribunal also placed weight on the Trust’s response after the incident. The Trust investigated the complaint, found that the employee’s conduct amounted to gross misconduct, and demoted the employee from Band 7 to Band 5. That showed both pre-incident preventative steps and post-incident responsive action.

From documents to implementation

In this way, the practical importance of Ajiga lies in the distinction between having policies and being able to prove that those policies operate effectively in practice. It is not enough for a policy to exist on paper if it is not capable of assisting staff to recognise incidents of concern, report them appropriately and enable timely responses.

Employers have long been advised to maintain equality, diversity, bullying and harassment policies. However, recent case law and guidance suggest that the focus is increasingly on the effectiveness of implementation. A policy which is out of date, inaccessible, poorly understood or unsupported by training may carry limited weight. Similarly, training that has become stale, forgotten or ineffective may undermine reliance on a policy which is otherwise well drafted.

There is also a broader cultural point. Policies are most effective where they form part of a visible, organisation-wide commitment to dignity, respect and inclusion. Values based actions, such as communicating organisational values, incorporating expected behaviours into supervision, appraisal or performance processes, encouraging employee feedback and maintaining clear speaking up routes, may all help demonstrate that the employer’s approach is embedded rather than ad hoc. They also help create a culture in which concerns are more likely to be identified, reported and addressed at an early stage.

For employers and insurers, the lesson is clear. Policies remain essential, but they are only the starting point. The real question is whether the employer can produce an evidence trail showing that those policies were understood, refreshed, monitored and acted upon. This applies equally to safeguarding policies and procedures.

In short, the focus is increasingly moving from policy to proof.