In the recent case of Allay (UK) Ltd v Gehlen [2020], the Employment Appeal Tribunal (EAT) upheld a tribunal's finding that an employer had failed to take all reasonable steps to avoid an employee being racially harassed by a fellow employee. It held that the employer could not rely on "stale" equality and diversity training it had provided to employees 20 months previously.
The law
An employer is potentially liable for its employee's discriminatory or harassing behaviour of a colleague, pursuant to s.109 of the Equality Act unless it can establish that it took "all reasonable steps" to prevent the employee doing the thing in question or anything of that description.
What are the "reasonable steps" an employer has to take to rely on this defence?
Tribunals have traditionally adopted a two-stage approach to this question; firstly looking back at the steps the employer has actually taken and then considering whether there were any other reasonable steps it could have taken in the circumstances. It is clear that employers cannot rely on a relevant policy prohibiting the conduct in question on its own (although not having such a policy will very likely count against it). Instead, they must be proactive and take practical steps to implement policies regarding equal opportunities, anti-harassment and bullying and review them at regular intervals.
Case law over the years has provided the following examples of "reasonable steps”:
- ensuring that all employees are aware of the policies, where to find them and the implications of violating them;
- ensuring that all managers and supervisors are provided with up to date training in issues relating to equal opportunities and harassment;
- putting in place a process to ensure that complaints are dealt with effectively and without delay, including taking appropriate disciplinary action against relevant individuals and ensuring employees are made aware of how to raise concerns and to whom and are encouraged to do so.
The EAT's decision in Allay (UK) Ltd v Gehlen
The EAT's decision that the equality and diversity training provided some 20 months before by Allay was "stale", and that it should have provided its employees with refresher training in the interim, will have come as an unpleasant surprise to many employers, as relatively few organisations renew their training more often than this. The EAT also noted that tribunals should look into the quality of the training provided.
In determining whether all reasonable steps were taken, the EAT confirmed that relevant factors included the likelihood of the steps it was being argued an employer could have taken being effective in preventing the discrimination in question, as well as the practicality and expense involved in taking the proposed steps. In this case, the EAT considered that the training provided by Allay "did not appear to have been very impressive, even for a relatively small employer" and that "brief and superficial training is unlikely to have a substantial effect in preventing harassment nor will it have long-lasting consequences." Although tribunals will take account of the size and resources of the employer in question, this ruling makes it clear that the training in question still needs to be more than cursory.
What does this case mean for employers?
Ultimately it serves as a reminder to employers that it will not be easy to rely on the "all reasonable steps" defence and that even the smallest organisations will be expected to have adequate policies and training in place and to ensure that their policies are updated regularly and 'refresher training' is provided on at least a yearly basis.
Our experienced and expert employment team at Russell-Cooke can provide advice on your organisation's equality and diversity, anti-harassment and bullying policies and procedures.