The Employment Appeal Tribunal in the case of Allay (UK) UK Ltd v Gehlen sends a reminder to all employers to keep their equal opportunities training up to date if they intend to rely on the statutory reasonable steps defence in claims made against them for discrimination and harassment in a decision which found that diversity training had become “stale” some 20 months later.
Mr Gehlen had complained to his employer that another employee had made racist comments to him on a regular basis during his employment. No action was taken other than to ask Mr Gehlen to report it to HR. Other employees had overheard the remarks and failed to report it or take any other action. The company later dismissed Mr Gehlen for performance related reasons when he raised a formal complaint of harassment. Following an investigation, Mr Gehlen’s complaint of harassment was upheld and the employee was required to undertake equality training. Mr Gehlen commenced a claim for racial discrimination and harassment. The employer sought to rely on the statutory “reasonable steps” defence which enables an employer to defend claims for discrimination on the basis that it had taken all reasonable steps to prevent the conduct complained of. Allay argued that it had policies on equal opportunities and bullying and harassment in place and that it had carried out training for its employees in 2015. The training had given information about what an employee should do if they overheard unacceptable comments or remarks.
The employers defence was rejected on the basis that training which had been carried out in 2015 had become stale and had ceased to be effective. The Tribunal found that this was supported by the fact that the remarks had ever been made in the first place, that managers had been informed and failed to take action and that other employees had overhead the remarks and also failed to take any action. The Tribunals view was that this was all contrary to the training given in 2015 which had clearly ceased to be effective and that a reasonable step would have been to provide further training which had not been done.
Allay appealed against the Tribunal’s findings to the Employment Appeal Tribunal who upheld the decision of the Tribunal and gave some useful guidance when considering how the reasonable steps defence works in practice which includes Tribunals looking closely at the steps already taken and how effective those were and also the cost and practicality of taking further steps and if further steps would in fact have been effective. The EAT noted that where it was obvious, as in this case, that the training had ceased to be effective and where harassment persisted or continued, the employer will be deemed to be on notice of the need to take further steps i.e. to refresh or carry out new training. The EAT agreed that Allay in this case was on notice due to the failures of managers or colleagues to act and that it had failed to take reasonable steps to prevent further acts of discrimination or harassment.
The take away from this case is that employers cannot rely on just having polices in place or that employees have been offered or provided training at some point during their employment in order to defend discrimination and harassment claims. Employers and HR teams should ensure at least annual training and provide regular updates to employees about equality and diversity and regularly raise awareness in the workplace of unacceptable conduct and behaviour. This can be reinforced and supported with company values and improving workplace culture making it safe for colleagues and managers to call out unacceptable conduct and behaviour.
If you would like advice or assistance on these issues, please contact Judith Curran by email firstname.lastname@example.org