We explore the assessment of the ‘reasonable steps’ defence in claims of harassment relating to race.
In the case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal considered the Employment Tribunal’s assessment of the ‘reasonable steps’ defence argued by the employer against an employee’s claims of harassment on the protected characteristic of race.
Facts of the case
An employee of the company was dismissed within a year of employment on grounds relating to his unsatisfactory performance at work. Following the dismissal, the employee raised a complaint that throughout his employment he had been harassed by a co-worker at the company related to his race.
The company carried out an investigation and required the co-worker to undertake further equality and diversity training as a result. In the event that an employee is found to have carried out a discriminatory act, employers can be held vicariously liable for the actions of that employee unless they are able to demonstrate a defence set out in the Equality Act 2010. In this instance, the company attempted to rely on the defence that they had taken all reasonable steps to prevent employees from committing acts of discrimination, including by providing appropriate training.
The Employment Tribunal rejected this defence on the basis that, whilst the employees at the company had received training on harassment, this had taken place some time ago. The employees were clearly in need of a refresher on the basis that the co-worker had carried out the act of harassment and 3 other employees at the company were aware of the harassment and did not take appropriate action.
The Employment Appeal Tribunal upheld the Employment Tribunal’s ruling and dismissed the company’s appeal and further elaborated that merely having equality and diversity training was not sufficient. The nature, extent and effectiveness of the training had to be taken into consideration. The lack of effectiveness of the training was evident in the actions of the harassing co-worker as well as the other employees who became aware of the incidents.
This case is an important reminder to employers to reflect on their existing equality and diversity training. It is important to ensure that the actual content is up to date and properly educates employees in the workplace. It is no longer sufficient just to re-use training sessions from years ago, particularly with the ever-changing work environment. Other reasons training may not be sufficient is if they are done at intervals so far apart that the employees forget the lessons taught, in which case employers may wish to hold regular refresher sessions.
If you require further advice in this regard or would like us to review your diversity and equality policies, please do get in contact with a member of our employment team who will be able to assist.