The importance of regular equal opportunities training
An employer cannot rely on the ‘all reasonable steps’ defence if its equal opportunity training has not been updated and therefore allowed to become ‘stale’.
The recent case of Allay (UK) Ltd v Gehlen (UKEAT/0031/20/AT) considers the defence available to employers in respect of harassment claims under section 109(4) Equality Act 2010 (EqA 2010).
Section109 EqA 2010 provides that the employer is potentially liable for harassment committed by a person during the course of their employment. Section 109(4) EqA 2010 provides a defence available to an employer in respect of their liability, provided it can show that it took all reasonable steps to prevent the employee from doing the action, or anything of that description.
The Claimant Mr Gehlen was employed by the Respondent Allay (UK) Limited as a Senior Data Analyst. Mr Gehlen was dismissed with immediate effect on 15 September 2017 by reason of performance. He subsequently claimed that he had been subject to racial harassment by a colleague and bought claims in the tribunal for direct race discrimination and harassment related to race.
The tribunal upheld the complaint of harassment rejecting the Respondents attempt to rely on the defence in Section 109(4) EqA 2010. The tribunal concluded that whilst training had been provided, it had been given several years before the events in question and was clearly stale. The Respondent appealed to the EAT.
The EAT determined a three stage approach:
1. Identify any steps that have been taken by the employer;
2. Consider whether these steps were reasonable;
3. Consider whether any further steps should have reasonably been taken.
In addition to the above the analysis should include a consideration of the extent to which the steps were likely to prevent harassment, the effectiveness of a step is therefore evidently relevant and the tribunal should consider the effects in practice.
The EAT considered that the tribunal did not conclude that the training was stale merely from the fact that racist comments had been made but a consideration of the practical effects. In this instance, colleagues who heard the comments failed to report them to management and similarly when the comments were bought to the attention of management they failed to report the matter to HR.
The Respondent, through their managers, knew that harassment was taking place, but did not take action to prevent it. These were matters that the Employment Tribunal was entitled to take into account.
The practical effects above were therefore sufficient evidence for the tribunal to conclude that the training was no longer effective.
Points to take away from the case
This case serves as a useful reminder that an employer must not only provide training but should actively refresh training ensuring that it is being implemented and adhered to in practice.
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