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Employment Law Cases
Defending discrimination - 'all reasonable steps'
Allay (UK) Ltd v Gehlen
When considering an employer’s defence that it took ‘all reasonable steps’ to prevent an employee discriminating against another employee, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and how effective they have proved to be in practice.
An employer is liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment: ‘anything done by a person (A) in the course of A’s employment must be treated as also done by the employer’ – s. 109(1) of the Equality Act 2010. It matters not whether that thing is done with the employer’s knowledge or approval. But an employer has a defence, under s. 109(4), where it can show that it took all reasonable steps to prevent the employee from carrying out the act of discrimination. This decision looks at the scope of this defence.
After his dismissal in 2017, Mr Gehlen, who described himself as ‘of Indian origin’, complained that he’d been racially harassed by another employee. That complaint was upheld and the employee was ordered to undertake further equality and diversity training. Mr Gehlen brought claims against his employer, including one of harassment. His employer relied on the statutory defence under s. 109(4).
A tribunal upheld the harassment complaint. While staff had received training relating to harassment, that took place in 2015, two years earlier, and had become ‘clearly stale’. A reasonable step would have been to provide refresher training. This was illustrated by the fact that Mr Gehlen’s fellow employee had made the remarks complained of - and the failure of three of Mr Gehlen’s colleagues to react properly to the harassment (the initial training had emphasised what staff should do if they heard unacceptable remarks and they’d all failed to follow the guidance). The employer appealed.
The appeal was dismissed.
When looking at the reasonableness of the steps an employer has taken, merely asking whether there has been training is not enough – it is the nature of that training and its likely effectiveness which is important. Drawing an analogy with the current pandemic and the vaccination programme, the EAT said 'considering this matter during the Coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last’.
The fact that the employee who’d heard the racist comments directed at Mr Gehlen had not reported it, and two managers had taken no action, was enough for the tribunal to conclude that the training which had been given was ineffective. The employee who’d racially harassed Mr Gehlen considered his actions to be no more than ‘banter’ – this too illustrated that any training had long ceased to be effective.
The employer could not avail itself of the defence in s. 109(4) because the training provided was stale, no longer effective to prevent harassment, and there were further reasonable steps by way of refresher training which the employer should have taken.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0031_20_0402.html
To rely on this defence, often referred to as the ‘statutory defence’, employers have long known that it is not sufficient to have just an equal opportunity and anti-discrimination policy. There had to be training of employees. This case is very helpful in reminding us that, much like vaccinations, that training must be updated, tweaked and refreshed.