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Employer Failed to Show 'All Reasonable Steps' Had Been Taken to Prevent Harassment

on Friday, 12 February 2021.

The recent case of Allay v Gehlen is a useful reminder of the considerations involved when an employer seeks to defend a claim resulting from the otherwise unlawful discriminatory actions of an employee.

The "Reasonable Steps" Defence

An employer may be liable under the Equality Act 2010 (EqA) for the wrongful actions of their employees or agents. However, an employer may have a defence to a claim resulting from the unlawful discriminatory actions of an employee where it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or anything of that description.

In this case, an Employment Tribunal found that Mr Gehlen had been subjected to harassment related to race by a fellow employee and his employer sought to rely on the statutory defence. The employer had provided training to the perpetrator and other employees (including two managers who failed to report the matter to HR) which had covered harassment related to race and what employees should do if they heard unacceptable remarks in the workplace.

The Employment Appeal Tribunal (EAT) upheld the Tribunal's conclusion that the training, which had been given over a year before the acts of harassment, had become stale - as demonstrated by the continuous racist comments and the fact that the managers, who were aware of these actions, failed to report them. The Tribunal was entitled to conclude from this that whatever training had taken place, was no longer effective. Therefore there were further reasonable steps by way of refresher training that the employer should have taken and so they could not establish the "reasonable steps" defence.

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What Will a Tribunal Take into Account?

When determining whether the statutory defence is made out, tribunals will consider the following:

  1. Whether the employer took any step(s) to prevent harassment/discrimination,
  2. Whether those steps were reasonable, and
  3. Whether there were any further reasonable steps the employer should have taken.

As this case demonstrates, a tribunal may consider as part of this test how effective the steps taken were likely to be when they were taken, and how effective they proved to be in practice. The EAT noted in its judgment: 'Brief and superficial training is unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective, and to last longer.'

This case is a cautionary tale for employers that simply providing training in the past may not establish a "reasonable steps" defence under the EqA.  Employers should ensure training is kept up to date and that employees are aware of their obligations around harassment and discrimination in the workplace. Employers should also ensure their Dignity at Work and Equality and Diversity polices are kept up to date and that employees are fully aware of them.

For more information on workplace training to ensure compliance with the Equality Act 2010, please contact Ellie Boyd in our Employment Law team on 020 7665 0940 or complete the form below.

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