February 11, 2021

Ongoing discrimination and harassment training key to the reasonable steps defence

Employer can be legally responsible for acts of discrimination or harassment committed by an employee in the course of employment, even if the employer was not aware of those acts.

The law provides employers with a potential defence to claims of discrimination and harassment, if they are able to demonstrate that they took all reasonable steps to prevent such acts from occurring in the workplace.

Typically, such "reasonable steps" will involve:

  having an Equality and Diversity policy;
  ensuring any complaints are investigated and handled fairly; and
  providing discrimination and harassment training to employees.

Allay (UK) Ltd v Gehen

The recent case of Allay v Gehen emphasises the importance of delivering regular, good quality discrimination and harassment training in order for employers to rely on the reasonable steps defence following a claim.

Mr Gehen, of Indian origin, was dismissed by Allay in 2017 for poor performance. He complained that, during his employment, he had been racially harassed by P, another employee. Following an investigation, his employer found that P had made racist comments to Mr Gehen and that three other employees had been made aware of this (including two managers) all of whom had failed to respond. Mr Gehen brought claims against his employer, including a claim for harassment.

The Tribunal upheld Mr Gehen's complaint of harassment. The employer tried to rely on the reasonable steps defence. The Tribunal accepted that while the employer could establish that training was delivered to all employees concerned two years earlier, it had nonetheless become "stale" and "ineffective".

The employer had not taken all reasonable steps to prevent the harassment from occurring. The Tribunal indicated it would have been a reasonable step to give refresher training. In particular, the way in which P had sought to justify the comments as no more than "banter" and the behaviour of three other employees in failing to report the harassment to HR, clearly indicated that refresher training was required.

The employer unsuccessfully appealed to the Employment Appeal Tribunal who observed that when considering the reasonableness of the steps an employer has taken, consideration had to be given to the nature of the training and whether it was likely to be effective. The Tribunal was able to conclude that training was no longer effective in this case and the employer could not rely on the reasonable steps defence.

Employers should note:

This case is an important reminder to employers, that a one-off discrimination and harassment training will not be sufficient. Regular, good quality and meaningful training on all aspects of discrimination and harassment is essential. This will protect employers and enable them to demonstrate to a Tribunal that they have taken all reasonable steps to prevent discrimination and harassment in the workplace.

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