The recent Employment Appeals Tribunal (‘EAT’) case of Allay (UK) Ltd v Gehlen has explored the use of training as part of the s109(4) Equality Act 2010 defence to the Employer being vicariously liable for something an individual employee has done in the course of their employment. In order to benefit from using the defence, the Respondent employer must show that they took ‘all reasonable steps’ to prevent the relevant discrimination or other similar discrimination so they are not held vicariously liable for the employee’s actions. The employer in this case had trained their staff two years prior to the discriminatory incident which lead the training to be rendered ‘stale’ and ineffective. The claim of harassment on the grounds of race was therefore upheld.
- The Case Facts
The Claimant was described as being of ‘Indian origin’ and claimed harassment related to his race due to regular comments being made about his skin colour and way of living. The perpetrator claimed that the comments were just ‘banter’. Another employee heard the comments being made by the perpetrator and did not report them. When the situation was reported to two managers, neither took any steps to address the matter.
It was the Respondent’s case that because there had been previous training on harassment related to race they had taken ‘all reasonable steps’ to prevent the discrimination and relied on this defence.
The Employment Tribunal held that there had been harassment related to race against the Claimant. It rejected the defence of ‘all reasonable steps’ as it held that training had been undertaken two years prior to the incident and was clearly ‘stale’. Whilst such training was one step which the employer had taken with the aim of preventing the discrimination, it did not constitute ‘all reasonable steps’; another step would have been to provide refresher training on harassment related to race to its employees. The Respondent appealed this decision.
The EAT upheld the ruling of harassment related to race. The judgment stated that it wasn’t just enough to have the harassment training in place to satisfy the ‘all reasonable steps’ defence, there needed to also be consideration of the nature and effectiveness of the training. It was clear that the training which had been undertaken two years prior was no longer effective so refresher training would have been needed. There was nothing to suggest that an updated training on harassment would not have helped prevent discrimination.
Further comments were made by the EAT in relation to the content in the original harassment training delivered two years prior. These included scrutinising the way harassment had been defined; as it had not included any reference to race, so could not have properly trained the employees on harassment related to race. It also deduced that the employer’s policies were not sufficient to prevent discrimination as their equal opportunities policy did not detail harassment, nor did their bullying and harassment policy include any details on harassment.
It remains important to ensure that policies are up to date and cover the relevant parts of harassment. It is also important to have regular trainings on harassment and discrimination to ensure that every employee, particularly managers, knows how to approach any potentially discriminatory situation that they may witness or that is brought to their attention. As always, any process undertaken in relation to harassment and discrimination must be documented in case that evidence becomes necessary in an employment tribunal.
Such steps would firstly help prevent harassment, and would also help to build an ‘all reasonable steps’ defence should a claim for harassment be brought against an employer. Should you want any help reviewing your policies or compiling training, please do not hesitate to get in touch with a member of the Employment Team.