In the case of Allay (UK) Limited v Gehlen, the Employment Appeal Tribunal (EAT) has recently reinforced the importance of up-to-date equality training for employees. Without it, employers may struggle to successfully demonstrate that they have taken all reasonable steps to prevent discrimination and harassment in the workplace and will, therefore, be potentially liable for any discriminatory conduct of their employees.
This case is, therefore, a useful reminder to employers to review their equality and diversity training programmes as a priority and, if they have not been updated in the recent past, to ensure that steps are taken to remedy this at the earliest opportunity.
In this case, Mr Gehlen was dismissed in 2017 for performance-related reasons. Following his dismissal, Mr Gehlen raised a complaint of race harassment by a fellow employee. Mr Gehlen’s complaint was upheld and the perpetrator underwent further equality and diversity training.
In response to the claim subsequently brought by Mr Gehlen in the employment tribunal, the employer sough to reply on the ‘reasonable steps’ defence set out in the Equality Act 2010. This provides an employer with a defence to a claim, brought in relation to the conduct of one of its employees during the course of their employment, where it is able to show that it, ‘took all reasonable steps to prevent [the employee] from doing that thing or from doing anything of that description‘.
The employer had an equal opportunity policy and an anti-bullying and harassment procedure, dating form 2016 (which succeeded an earlier procedure). The alleged perpetrator and his managers had also received equality and diversity training in January 2015, and bullying and harassment training in February 2015.
However, while noting the training received by the relevant employees, the tribunal found that it ‘was clearly stale‘. The tribunal said that the employer had not taken all reasonable steps to prevent discrimination in the workplace – a reasonable step would have been to refresh the training. The tribunal found both that the fact that discriminatory remarks were made to Mr Gehlen and that the managers failed to follow their employer’s procedures in response to those remarks showed that ‘the training patently needed to be refreshed‘.
In upholding the tribunal’s judgment, the EAT said that in determining whether an employer could make out the reasonable steps defence, the following points are key considerations:
- Any step(s) taken: The starting point is to consider whether the employer took any step(s) to prevent discrimination or harassment;
- The reasonableness of any step(s): This will include consideration of the extent to which the step(s) are likely to prevent discrimination or harassment, including the nature of any training and the extent to which it is likely to be effective. Brief and superficial training is unlikely to have a substantial effect in preventing harassment;
- Evidence in practice: It is relevant to consider what has happened in practice; if harassment takes place after any training provided, it may constitute evidence of the poor quality of the training, particularly if it is not only an alleged harasser who did not understand the training, but also other employees;
- Any other reasonable step(s): Once the step(s) taken by an employer have been considered, there should then be consideration of whether there were any other reasonable steps that the employer should have taken. Factors which will impact on the reasonableness of the steps include: the likelihood of those steps being effective; cost; and the practicality of taking the steps.
KEY ACTIONS FOR EMPLOYERS
In light of the findings of the EAT in this case, employers should act now to consider the adequacy of their equality and diversity programmes. This may include taking the following steps:
- Reviewing existing equality and diversity policies and procedures and refreshing to ensure they are comprehensive and take account of latest legal developments;
- Auditing the existing programme of equality and diversity training, noting when it was provided, and to who, and whether there are any gaps in receipt of that training; considering whether managers require supplementary training;
- Assessing the quality of the training; is it sufficiently comprehensive to be confident that employees fully understand what may constitute bullying or harassing behaviour and know the expectations and obligations on them in the workplace?;
- Considering whether any complaints of bullying or harassing behaviour have recently been made and what actions were taken in response;
- Assessing whether there are any other reasonable steps which could be taken to prevent workplace harassment or bullying, taking account of the likely effectiveness of those steps and their practicality;
- Implementing any refresher training and any other reasonable steps, as appropriate;
- Communicating any updates to policies and procedures to all employees and ensuring that that information is easily accessible.