Case update (2): Discrimination – Employer’s defence

Summary:  Can an employer successfully defend itself against a harassment claim by showing that it provided training to the harasser, regardless of when this took place?

No, says the EAT in Allay v Gehlen (available here).  Employers have an ongoing duty to review and refresh training aimed at preventing discrimination, bullying, and harassment.  The training should not become stale.

Background:  Employers can be held liable for harassment committed by their employees under the Equality Act 2010 (Equality Act). It is irrelevant whether the employer was aware, or approved, of the conduct of the employee in question.

However, the Equality Act provides a defence for an employer where it can show that it took “all reasonable steps“ to prevent the employee in question from doing the act(s) alleged to have taken place in the course of their employment.  In the event that an employer seeks to rely on the “all reasonable steps“ defence, the burden of proof lies with the employer to show this.

Facts:  Mr Gehlen, the employee, who describes himself as being “of Indian origin“, was employed by the employer, Allay (UK) Ltd, from October 2016 until his dismissal in September 2017.  After his dismissal Mr Gehlen complained he had been subjected to racial harassment by a fellow employee, Mr Pearson. The employer undertook an investigation which found that Mr Pearson had made racist comments, which he characterised as ‘racial banter‘.

The employee brought a Tribunal claim for direct race discrimination and harassment related to race.

Tribunal decision

The Tribunal upheld the employee’s harassment claim and rejected the employer’s defence that it had taken “all reasonable steps“ to prevent the harassment. This was despite the fact that:

• the employer had an equal opportunity policy and an anti-bullying and harassment procedure; and
• the harasser (and a manager to whom the claimant reported the racist remarks but who failed to take any further action) had received equality and diversity training about two years before the harassment.

The Tribunal held that the training was clearly “stale” and the employer had not taken all reasonable steps to avoid discrimination in the workplace; a reasonable step would have been to refresh the training.  Further, the employer’s equal opportunities policy made no reference to harassment. There was a similar omission in its anti-bullying and harassment policy, which only mentioned harassment in its title, and made no reference to race.

The employer appealed the decision.

EAT decision

The EAT upheld the Tribunal’s decision.  The EAT found that the training provided by the employer was “stale and was no longer effective to prevent harassment.” There was clear evidence that further training was needed and this should reasonably have been provided by the employer.

The EAT emphasised that to rely on the “all reasonable steps“ defence, employers need to meet a high threshold and that the provision of training on equal opportunities and harassment is not simply a tick box exercise.

The EAT said that in deciding whether an employer could rely on the reasonable steps defence, the following points are key considerations:

• Have any steps been taken to prevent discrimination or harassment?
• How reasonable are those steps? This will include consideration of the extent to which the steps are likely to prevent discrimination or harassment, including the nature and effectiveness of any training. Brief and superficial training is unlikely to have a substantial effect in preventing harassment;
• What has happened in practice?  If harassment takes place after any training provided, it may constitute evidence of the poor quality of the training, particularly if it is not only an alleged harasser who did not understand the training, but also other employees;
• Should the employer have taken any other reasonable steps? Once the steps taken by an employer have been considered, there should then be consideration of whether there were any other reasonable steps that the employer should have taken. Factors which will impact on the reasonableness of the steps include: the likelihood of those steps being effective; cost; and the practicality of taking the steps.

Implications: Training aimed at preventing harassment and discrimination should be of good quality, effective, and long-lasting. In particular, employers have an ongoing duty to frequently review and refresh relevant policies and training, so that the training does not become stale.

Employers should therefore regularly review and update their policies, procedures and training to ensure that they are effective and then make sure that such training is provided to employees on a regular basis.