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Harassment and Discrimination -reasons to keep training up to date

1st March 2021
A recent case in the Employment Appeal Tribunal (EAT) has highlighted the need for employers to ensure that their staff, in particular their managers, keep their training up to date- in particular in relation to dealing with allegations of harassment and discrimination in the workplace.

The Equality Act 2010 provides a defence for employers in claims of unlawful discrimination if the employer can show that it has taken all “reasonable steps” to prevent the employee(s) from committing a particular discriminatory act or committing such acts in general (see section 109 (4) Equality Act 2010). The defence exists in order to provide conscientious and responsible employers from being exposed to liability for claims of unlawful discrimination through the actions of their staff despite the employer having taken all reasonable steps to prevent the discriminatory treatment. As the law on vicarious liability (ie employers being held responsible for the actions of their staff), has rightly developed so that individuals can pursue claims in relation to unlawful acts at work with a realistic expectation of being able to recover compensation from a financially viable defendant, so the Equality Act 2010 recognises through section 109 (4) that it is right to provide a statutory defence to those employers that have really done all that they reasonably could to prevent their staff from being the victim of unlawful discrimination at work.

Clearly, every responsible employer is going to make it known to their staff that acts of unlawful discrimination are not acceptable. But the case law on this issue has developed so that simply telling them that they should not behave in that way is not going to meet the requirements of any statutory defence to the discrimination claim. This begs the question of “what steps must the employer take in order to avoid liability?”

In the case of Allay v Gehlen, the EAT has expressed the view that the process required by an employer to establish that it has taken all “reasonable steps” is really an ongoing one, and it indicates that an employer cannot guarantee to fulfil the requirements of the statutory defence by relying on steps taken only once, or steps that it took some significant time before the incident of discrimination.

The EHRC code addresses the issue of the statutory defence, and in that it states that:-

“An employer would be considered to have taken all reasonable steps if there were no further steps that they could have been expected to take. In deciding whether a step is reasonable, an employer should consider its likely effect and whether an alternative step would be more effective. However, a step does not have to be effective to be reasonable.”

It goes on to say that :-

Reasonable steps might include:-
  • Implementing an equality policy,
  • Ensuring workers are aware of the policy,
  • Providing equal opportunities training,
  • Reviewing the equality policy as appropriate, and dealing effectively with employee complaints.
The steps to be considered are only those that took place before the act of discrimination- otherwise the Tribunal cannot take them into account. It is no defence for the employer to show that the discrimination was promptly remedied.

The onus on establishing the defence is strictly on the employer.  

Employment Tribunals usually consider two preliminary questions:-
  1. Where there any preventative steps taken by the employer, and
  2. Where there any further preventative steps that the employer could have taken that were reasonably practicable.
Simply issuing an employee with an equality policy, or dignity at work policy, will not be sufficient to meet the “reasonable steps” defence, and providing staff with any new or updated policy will not in itself establish that reasonable steps have been taken.

Obviously, a Tribunal will have some regard to the size and resources of an employer in ascertaining if the steps actually taken met the requirements of the “reasonable steps” defence. Steps which require a lot of time and money, and organisation may not be reasonable if they are likely to achieve nothing.    

The case of Allay v Gehlen involved an employee, of Indian origin. He was dismissed after roughly one year of employment with Allay. After being dismissed he raised a complaint that he had been subjected to racial harassment by a work colleague at Allay. An investigation was conducted, which came to the conclusion that racist comments had been made to Mr Gehlen. The employee that had made the racist comments was then required by Allay to take part in further equality and diversity training.

Mr Gehlen brought a claim to the Employment Tribunal, including a claim of racial harassment. Allay sought to raise the statutory defence to the claims. The Employment Tribunal rejected the defence, and upheld the claim of racial harassment. The Employment Tribunal accepted that the employer had provided training that covered harassment related to race, but noted that the training had been provided some two years before Mr Gehlen left the employer. The Employment Tribunal took the view that the employer had not taken all the reasonable steps it could have taken to try to avoid the discrimination. A reasonable further step that the employer could have taken was to provide refresher training, and the Employment Tribunal noted that the training that had been provided (some two years earlier) was “clearly stale” by the time the discrimination occurred.

An appeal was then brought by Allay. The EAT rejected the appeal. The EAT ruled that in considering the reasonableness of the steps actually taken by the employer to avoid the discrimination it is not adequate to simply ask if there has been some training provided to the employee. The Tribunal should also give consideration to the nature of the training given and to the extent to which it was likely to be effective. As to the question of whether there were additional reasonable steps that an employer could take the EAT stated that the Employment Tribunal was entitled to take the view that further training could have been provided, and was entitled to take the view that the training provided two years earlier was “stale.” It was noted that not only did the employee make the discriminatory comments to Mr Gehlen, but the comments had also been heard by other colleagues and reported to managers who had failed to take any action about it. The EAT also noted that the managers that had not known what they should do when they observed the harassment. As is commonplace in such cases, the employee regarded his comments to Mr Gehlen as “banter” rather than as racial harassment.

In this case the Employment Tribunal had noted that a reasonable step would have been to provide fresh training. There was nothing to suggest that it would not have been effective- as was illustrated by the fact that the perpetrator was provided with fresh training after the harassment was reported by Mr Gehlen – which indicates that the employer regarded it as worthwhile and effective.

This case illustrates the need for employers to take an active approach to training of staff in spotting and dealing with discrimination and harassment in the workplace, and enabling them to come forward to report it. Beyond this, it also indicates that the training should not be treated as a “one-off” event, or that it will be adequate for a long time. Employers need to keep the issue under regular review and provide training regularly. It would be useful to address the issue within annual staff appraisals- so that it does not slip under the radar.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.
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