‘All reasonable steps’ to prevent harassment
26 February 2021
The Employment Appeal Tribunal (EAT) has considered whether an employer had met the test for taking ‘all reasonable steps’ to prevent discrimination from occurring in the workplace, in its defence of a claim for racial harassment.
Allay (UK) Ltd v Gehlen UKEAT/0031/20
Facts
Following his dismissal after 11 months’ service, the claimant complained to his employer that he had been subjected to racial harassment by a colleague during his employment. An internal investigation found that ‘racial banter’ had taken place. The claimant subsequently brought claims in the employment tribunal for direct race discrimination and harassment related to his race.
The tribunal upheld his complaint of racial harassment, having heard evidence that his colleague (P) had made regular comments suggesting that the claimant should go and work in a corner shop, commenting that he had brown skin and that he drove a Mercedes like all Indians, and questioning why he was in the country.
The tribunal rejected the employer’s defence that it had taken all reasonable steps to prevent the harassment, even though the employer had an equal opportunities policy and an anti-bullying and harassment procedure in place. It had also provided equality and diversity training and bullying and harassment training, both to P and to his managers. The tribunal held that the training, which took place less than two years before the claimant had joined the business, was “stale”. It would have been a reasonable step for the employer to have refreshed the training, particularly as two managers had failed to take the necessary action when they became aware of the comments.
The employer appealed to the EAT.
EAT decision
The EAT has dismissed the employer’s appeal, upholding the employment tribunal’s decision.
The tribunal had been entitled to find that the equalities training was stale and no longer effective to prevent harassment. There were further reasonable steps the employer should have taken, namely to refresh the training. The EAT commented that it is not sufficient to merely ask whether there has been training; consideration should be given to the nature of the training and the extent to which it was likely to be effective. It suggested that the policies and training provided in this case did not appear to be very impressive. The less effective the training, the more quickly it is likely to become stale.
Consequences
In its decision in this case, the EAT has emphasised that when seeking to rely on the ‘all reasonable steps’ defence, an employer has to meet a high threshold. The EAT was satisfied that on the evidence before the tribunal, the training provided had not been effective. It had not prevented the harassment from taking place and the managers had not taken the appropriate steps once they became aware of the comments directed towards the claimant.
This case demonstrates not only the importance for employers of having comprehensive and up-to-date policies in place, but also the importance of providing regular and detailed training to employees. Birketts can provide your staff with high quality E-learning on Equality, Diversity and Inclusion and also delivers training for managers on Managing Equality and Diversity Issues.
Contact Sam Greenhalgh for further details.
These articles are from the February 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.
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Liz Stevens
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2021.