18 February 2021 #Employment
A stark warning to employers
The case of Allay (UK) Ltd v Gehlen, is a stark warning to employers not to rely on ‘stale’ or ‘ineffective’ equal opportunities and anti-harassment training as a defence to claims of unlawful discrimination. In its recently published judgment, the Employment Appeal Tribunal went even further stating that it would expect colleagues, and especially managers, to report an act of discrimination and harassment to HR or management, rather than ignoring it or telling the victim to report it them themselves.
The law – ‘the reasonable steps’ defence
Under the Equality Act 2010, S.109, when a worker commits an act of unlawful discrimination in the course of their employment, their employer is treated as having committed the act itself. An employer has a statutory defence to discrimination and harassment claims if it can prove that it has taken ‘all reasonable steps’ to prevent the unlawful conduct happening in the first place.
The case of Allay (UK) Ltd v Gehlen
Mr Gehlen described himself as being ‘of Indian origin’ and complained that he had been subjected to harassment related to his race by a colleague, Mr Peacock. Under investigation Mr Peacock admitted to engaging in what he called “racial banter” with comments such as “go and work in a corner shop”.
When Mr Gehlen brought claims against Allay including a claim of harassment, Allay sought to rely on the ‘reasonable steps’ defence under S.109(4). The tribunal rejected Allay’s defence and upheld Mr Gehlen’s claim for harassment. The tribunal noted that while Allay had given equality and diversity training, included harassment related to race to its workforce 2 years earlier that training was clearly ‘stale’ and ineffective.
The tribunal concluded that the training was stale not just because Mr Peacock had made the comments but because three colleagues had failed to properly react to the harassment. A reasonable step for Allay to have taken would therefore have been to provide refresher training.
What lessons for employers?
In its judgment the EAT warns that in considering the reasonableness of the steps an employer has taken, it is not enough to ask whether there has been training but also the nature of the training and how likely is to be effective.
Here is an extract from the EAT judgement that sums it up: “If training involved no more than gathering employees together and saying, "here is your harassment training, don't harass people, now everyone back to work", it is unlikely to be effective, or to last”
Our advice is that if it becomes clear that despite training staff are continuing to engage in harassment, or do not understand the important of preventing it and reporting it to managers, employers should take this a clear signal that more effective training is urgently needed.
Finally bear in mind that this warning does not just apply to acts of racial harassment but to also to discrimination and harassment related to other protected characteristics under the Equality Act.
For further advice equalities and diversity training, or on any other employment law or discrimination issue contact our employment team.