Claims for workplace discrimination and harassment can have significant, harmful consequences for employers where there is an adverse employment tribunal finding. Employers may face devastating reputational and financial consequences.
Statutory definition of harassment
Under the Equality Act 2010, a person (A) harasses another (B) if A engages in unwanted conduct, related to a relevant ‘protected characteristic’ which has the purpose of effect of either:
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
Vicarious Liability and the Reasonable Steps Defence
The general rule is that an employer will be vicariously liable for acts of discrimination or harassment carried out by their employees in the course of their employment. Anything done by an employee in the course of their employment is generally treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval, unless the employer can rely on the following statutory defence to distinguish itself from the employee’s behaviour.
The Equality Act 2010 provides that in respect of alleged behaviour done by an employee in the course of their employment, it may be a defence for the employer to show that they took all reasonable steps to prevent the employee from either:
- Doing the alleged behaviours; or
- From doing anything of that description.
This is known as the ‘reasonable steps defence’.
New guidance : Allay (UK) Limited v Mr S Gehlen
In this recent case, the Employment Appeal Tribunal (“EAT”) looked at whether anti-harassment training provided approximately two years before the act of harassment was sufficient to allow the employer to rely on the reasonable steps defence.
Mr Gehlen, who describes himself as being of Indian origin, was an employee of Allay (UK) Limited from October 2016 until his dismissal in September 2017. Following his dismissal, Mr Gehlen complained that he had been subjected to racial harassment by a fellow employee. As a result of this, the employer carried out an investigation which determined that his colleague had made racist comments which the colleague characterised as ‘racial banter’.
Mr Gehlen proceeded to make a claim in the Employment Tribunal for direct race discrimination and harassment related to race. The tribunal upheld the complaint of racial harassment; the tribunal found that the colleague had regularly made racial comments towards Mr Gehlen, and that other colleagues and two managers were aware of these but had taken no substantive action.
Allay had an Equal Opportunity Policy and an Anti-Bullying and Harassment Procedure in place and asserted that all employees had received equality and diversity and anti-harassment and bullying training two years prior to the complaint. However, Allay’s defence that it had taken all reasonable steps to prevent the acts of harassment was rejected; the training was clearly “stale”. The tribunal concluded that a reasonable step in this case would have been for the employer to have refreshed the training.
Allay unsuccessfully appealed. The EAT held that the tribunal was correct in concluding that the training was stale and no longer effective in preventing harassment and bullying. It also considered that the following factors are relevant in determining whether an employer has taken reasonable steps:
- Likelihood of the steps being effective in preventing discrimination;
- Cost; and
The EAT also referred to established case law that a defence will fail if there is a further step that the employer should reasonably have taken to prevent harassment, even if that step would not have prevented the harassment that occurred.
Allay argued that in determining whether the refresher training was a reasonable step, the tribunal was required to consider the effectiveness of any refresher training in preventing discrimination. The EAT disagreed – there was nothing which suggested that further training of a good standard would not have been effective. It was noted that Allay had already provided the individual with further training and would not have done so if it thought it would be ineffective.
The EAT emphasised that an employer has a high threshold to cross to establish the reasonable steps defence and advocated a three-stage approach:
- Identify any steps that have been taken;
- Consider whether they were reasonable; and
- Consider whether any other steps should reasonably have been taken.
What does this mean for employers?
Simply having equality policies and procedures, on their own, will be insufficient to establish the reasonable steps defence and escape liability for discrimination and/or harassment allegations. The policies themselves must be actively implemented via regular training and regularly reviewed.
The quality of the training is of particular importance with the EAT stating in the case above that “brief and superficial training is unlikely to have a substantial effect in preventing harassment nor will it have long-lasting consequences”. An employer’s priority should be prevention, and as such training is just one small part of the bigger picture. Employers should be taking steps to actively promote a positive equalities culture throughout their organisation, with visible, senior level sponsorship and clear reporting lines for employees should they wish to raise concerns.
Key takeaway points:
- Implement a policy on equal opportunities, including anti-harassment and bullying. Ensure that these are regularly reviewed.
- Ensure employees are fully aware of the relevant policies and its implications through regular training.
- Have a system that encourages employees to report unacceptable behaviour they might experience or be witness to.
- Act on all discrimination and/or harassment complaints and take disciplinary action where appropriate.
- As well as training all employees, be sure to include managers and supervisors in training of discrimination and harassment.
- Regularly review training material and ensure refresher training is provided to all employees.