The recent Employment Appeal Tribunal (EAT) decision in Allay (UK) Ltd v Gehlen is a reminder to employers to keep equal opportunities training up to date in order to rely on the statutory “reasonable steps” defence in discrimination and harassment claims.
Under the Equality Act 2010, an employer can be vicariously liable for discriminatory actions of their employees regardless of whether the employer had knowledge of the employee’s actions. Under section 109(4), an employer has a defence if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description.
Mr Gehlen was dismissed in 2017 for performance related issues. Following his dismissal, he made a complaint that he had been subjected to racial harassment by another employee. Mr Gehlen’s complaints were upheld and the perpetrator underwent further equality and diversity training. Mr Gehlen brought claims of race discrimination and racial harassment. Allay sought to rely on the reasonable steps defence on the basis that by providing equality and diversity training to the perpetrator it had taken all reasonable steps to prevent such actions.
The tribunal accepted that Allay had an equality and diversity policy in place and its employees had received both equality and diversity training and anti-bullying and harassment training in early 2015. The tribunal also found that one of Mr Gehlen’s colleagues and two of his managers were aware of the racist comments but took no substantive action. The tribunal rejected Allay’s reasonable steps defence and held that the training was clearly ‘stale’ and so it had not taken all reasonable steps to prevent discrimination in the workplace.
Allay appealed to the EAT.
The appeal was dismissed and the EAT held that the tribunal was entitled to reach its decision that the training provided by Allay had become stale and that a further reasonable step would have been to refresh the training. In considering the reasonableness of the steps an employer has taken, it is important to look at the nature and the extent to which those steps are likely to be effective and to consider how effective they have proved to be in practice. The EAT determined that there was sufficient evidence to conclude that Allay’s training was no longer effective as the perpetrator had made such comments thinking it was ‘banter’ and other employees took no further action upon becoming aware of these comments. The EAT also noted that Allay provided this employee with further training after the harassment took place, so it therefore likely felt its original training was ineffective.
What should employers do next?
The EAT’s decision serves as a warning to employers who have not recently reviewed and refreshed their anti-discrimination policies and training in relation to them. A failure to do so can deprive an employer of the statutory “reasonable steps” defence and leave it exposed to being vicariously liable for the discriminatory acts of its employees. It is important that employers understand that having policies and training in place is not simply a tick box exercise. Employers should therefore take the opportunity to review their policies and training for preventing discrimination and harassment in the workplace and update where necessary. It is important that reporting lines for employees who wish to raise concerns are clear and are communicated to staff.