A recent decision of the Employment Appeal Tribunal (EAT) in Allay (UK) Limited v Mr S Gehlen provides useful guidance to employers seeking to rely on the “reasonable steps” defence to a claim of discrimination, harassment or victimisation.
An employer can be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, even if the employer was not aware of those acts (section 109(1) of the Equality Act 2010). However, there is a potential defence available to an employer under section 109(4) of the Equality Act 2010 if it can show that it took all reasonable steps to prevent the discrimination, harassment or victimisation from occurring.
In the case of Allay v Gehlen, Mr Gehlen alleged that he had been subject to racial harassment by another employee. His employer sought to rely on the “reasonable steps” defence, as it had provided the offending employee and others with training which covered harassment relating to race. This was rejected by the Employment Tribunal at first instance, and upheld on appeal to the EAT. Although it was accepted by the EAT that the employees had received training, the training was considered “stale” and “ineffective”, as it had been provided over a year before the harassment occurred and was not being followed. This was demonstrated by the fact that the racist comments continued to be made and that three of Mr Gehlen’s colleagues (including two of his Managers) had heard or been made aware of the racist comments and failed to take any action or report the conduct. The EAT also determined that there were further reasonable steps the employer should have taken, such as providing refresher training to its employees.
This case serves as a useful reminder to employers that simply having a policy in place or providing one-off training is not sufficient to establish the reasonable steps defence. The quality of the training and its likely effectiveness in preventing discrimination, harassment or victimisation are important factors. In addition, once an employment tribunal has considered what steps the employer has taken it should also consider whether there are any other reasonable steps that the employer should have taken. Policies and training must therefore be relevant, substantial and regularly updated and delivered to avoid becoming “stale” and “ineffective”.
