The law states that, when defending a claim of racial harassment, employers can argue that they took “all reasonable steps” to prevent it. In Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) held that employers cannot rely on the defence if the “steps” included training that had become stale and needed to be refreshed.
Mr Gehlen, who described himself as being of Indian origin, started work for Allay in October 2016. In August 2017, he told his line manager that a colleague, Ian Pearson, was being racially abusive towards him on a regular basis. For instance, he had told Mr Gehlen on more than one occasion that he should go and work in a corner shop and made references to him driving a Mercedes car “like all Indians”. He had also asked him why he was in the country.
Instead of reporting the matter to HR himself, however, the manager told Mr Gehlen to do so. The remarks were also overheard by two other employees (one of whom was also a manager) who took Mr Pearson to ask about them in a light-hearted way but took no further action.
After Mr Gehlen was dismissed for poor performance in September 2017, he complained that he had been subject to racial harassment. The company then undertook an investigation which found that Mr Pearson had indeed made racist comments. As a result, he underwent further equality training.
Mr Gehlen then lodged a tribunal claim that he had been subject to race harassment. Allay argued that they had taken “all reasonable steps” to prevent Mr Pearson from racially harassing Mr Gehlen by virtue of having provided him with relevant training.
Section109(1) of the Equality Act states that employers are liable for harassment carried out by one of their employees in the course of employment.
Section 109(4) provides employers with a defence if they can show that they took “all reasonable steps” to prevent the employee:
(a) from committing a particular discriminatory act, or
(b) from committing discriminatory acts generally.
Upholding the claim of harassment, the tribunal accepted that all three employees had received training by their employer on equal opportunities and bullying and harassment, including harassment related to race. However, the training had been delivered two years before the harassment took place and was “clearly stale”.
On that basis the tribunal rejected the employer’s argument that they had taken all reasonable steps to avoid discrimination in the workplace. In the tribunal’s view the training clearly needed to be refreshed, not least because the employees in question (including two managers) failed to properly react to the allegations of harassment. Furthermore, the training had made plain to the employees what they should do if they heard unacceptable remarks and they all failed to follow that guidance.
Allay appealed on the basis that the tribunal should have focused on whether the steps were reasonable in the circumstances, not whether they were effective.
Upholding the tribunal’s decision, the EAT held that when deciding whether the employer has a valid defence, tribunals should first ascertain what, if any, steps the employer had taken to prevent harassment and secondly whether there were any other reasonable (and effective) steps that they should have taken.
When considering the reasonableness of the steps the employer has taken and what other steps are required this should include an analysis of the extent to which they were effective. Given Mr Gehlen’s experience, it was clear that they had not been.
Although the tribunal could have made more detailed findings, the EAT concluded that it was entitled to find that the employer could not rely on the reasonable steps defence where the training that had been provided had become stale and needed to be refreshed.
The statutory defence requires an employer to establish that they have taken “all reasonable steps” which, as this case shows, is a high threshold to meet. The EAT was critical of the training provided “even for a relatively small employer”, which made no mention of race and was “not very impressive”. Unions may wish to use this judgment to remind employers that they should review policies and procedures on harassment in the workplace.