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24th March 2021

Employer’s “all reasonable steps” defence to harassment claim rejected

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In the case of Allay (UK) Ltd v Gehlen the Employment Appeal Tribunal (EAT) confirmed that an Employment Tribunal was entitled to reject an employer’s defence, to a claim of harassment on grounds of race, that it had taken “all reasonable steps” to prevent the harassment. The tribunal had found that, although the employer had provided equality and diversity training, this had become “stale and ineffective”.

After being dismissed in September 2017, the claimant (G) complained of harassment on the grounds of race by another employee (P). An investigation was carried out and P was found to have made discriminatory comments on a regular basis during G’s 11 months of employment. The employer’s latest equal opportunities policy and anti-bullying and harassment procedure dated from February 2016, and P had undergone bullying and harassment training under a predecessor policy in 2015. Following G’s complaint, P did undergo further training.

G brought a harassment claim and the employer sought to rely on the defence under section 109 of the Equality Act 2010: that is took “reasonable steps” to prevent P from committing discriminatory acts. The Tribunal rejected the defence, finding that the equality and diversity training was “stale and ineffective” and that a reasonable employer would have provided refresher training.

The EAT rejected the employer’s appeal and confirmed that it was unable to rely on the reasonable steps defence. It is not sufficient for an employer to merely show that there has been training; consideration has to be given to the extent to which such training is likely to be effective. Furthermore, if there are any steps that should reasonably have been taken to prevent harassment such as further training, the defence will fail even if that step would not have prevented the harassment that occurred.

The EAT also pointed out that incidents of comments by P had been witnessed and reported to managers and other employees but not followed up. The employer was therefore aware that harassment was taking place but did not take action to prevent it. That was sufficient evidence for the Tribunal to conclude that, although less than two years old, the training was no longer effective.

This decision suggests that the existence of equality and diversity policies and procedures, and training, may not be sufficient to establish an “all reasonable steps” defence if they are not reviewed and updated on a regular basis and enforced in the workplace.

For more information on any of the items raised in this article please contact Charlotte Herrington by clicking here.