In the recent harassment in the workplace case of Allay (UK) Limited v Gehlen, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that the employer (Allay (UK) Limited) could not rely on the reasonable steps defence when defending a claim for racial harassment.
In this blog we particularly look at racial harassment in the workplace but the guidance relates to all cases of harassment.
The Equality Act 2010 contains a definition of harassment in the employment context. It states that:
A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:
The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval.
Therefore, an employer can be vicariously liable for discrimination, harassment or victimisation committed by an employee in the course of employment. However, there is a defence available to the employer- the reasonable steps defence.
Where an employee has committed an act of discrimination, harassment or victimisation against a colleague, the employer will not necessarily be liable. It might have a defence. Section 109(4) of the Equality Act 2010 states:
In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A-
(a) from doing that thing, or
(b) from doing anything of that description.
Therefore, an employer will avoid liability if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.
To succeed with a reasonable steps defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.
Reasonable steps will usually include:
The facts of Allay (UK) Limited v Gehlen were as follows. The Claimant complained that he had been harassed by a fellow employee because of his race. The Respondent found that racist comments had been made to the Claimant and the offending employee was instructed to undertake further equality and diversity training.
The Claimant brought a claim for racial harassment against the Respondent and the Respondent sought to rely on the reasonable steps defence. The Employment Tribunal rejected the Respondent’s reasonable steps defence on the ground that, although equality and diversity training had been given to staff in early 2015, this was now “stale” and ineffective.
Importantly, the Tribunal found that a reasonable step would have been to provide refresher training for equality and diversity within the workplace. Accordingly, the Respondent had not met the reasonable steps threshold. The Respondent appealed to the EAT.
The EAT dismissed the appeal. Its reasoning was as follows:
This is a stark reminder to employers that providing regular and up to date equality and diversity training to staff is crucial, not only in preventing discrimination in the workplace, but also to show that reasonable steps have been taken to prevent discrimination in the workplace, should a claim be made against them.
In this case, training had been provided early in 2015 and the harassment had taken place during n 2017. However, it wasn’t just the time that had elapsed, the Tribunal also considered that the training had been ineffective. In this regard, the Employment Tribunal considered it relevant that colleagues and managers had either heard or been told about the racial harassment but had not taken any meaningful action.
The EAT commented that, where training has not been effective, further action will be required, even if refresher training would not usually have been provided within such a timescale. The EAT’s judgment included the following:
The case makes it clear that employers cannot automatically rely on training provided years ago and the training provided must be effective.
At Paris Smith LLP, we offer a variety of training for line managers, including equality and diversity training. We also offer in house training. If you would like to know more about the training we offer, please visit our designated Training page.
If you would like to discuss the training we provide in further detail, do not hesitate to contact me.