Employer should have refreshed equality and diversity training as a reasonable step to prevent racial harassment

EAT: assessment of whether employer took all reasonable steps to prevent discrimination should include deciding if a step is likely to be effective.

Under the Equality Act 2010, employers can be vicariously liable for an employee’s discrimination, harassment or victimisation of another person. Employers can defend such claims on the basis that they took “all reasonable steps” to prevent the unlawful act from happening. This is sometimes known as “the statutory defence”.

What are reasonable steps to prevent discrimination in the workplace?

Reasonable steps might include putting in place and regularly reviewing equality and diversity and anti-bullying and harassment policies; providing regular training on these issues to all staff; ensuring that disciplinary policies and workplace rules make clear that discriminatory acts will be a disciplinary matter; ensuring that managers are aware of how policies and procedures should work in practice; and taking rigorous steps to deal with breaches.

It is of course advisable to deal rigorously with any allegations of harassment or discrimination once they are received, investigating the matter and following a grievance and/or disciplinary procedure as appropriate. However, “reasonable steps” must be undertaken before the discriminatory act; retrospective action will not assist an employer in using the statutory defence.

There are very few reported cases which consider the “reasonable steps” defence. A recent EAT case has shed light on how tribunals should approach the assessment of whether an employer took all reasonable steps and can therefore avoid liability for an employee’s unlawful actions.

Case details: Allay (UK) Ltd v Gehlen

Mr Gehlen, an employee of Allay, was dismissed following performance concerns shortly before he reached one year’s service. He brought claims including harassment related to race to an employment tribunal.

The tribunal accepted Mr Gehlen’s evidence that a colleague had regularly harassed him in relation to his Indian origin, making comments about his skin colour, suggesting that he should go and work in a corner shop, and asking him why he was in the country. The tribunal also found that Mr Gehlen’s colleagues had heard these comments and taken no action. When Mr Gehlen reported the harassment to a manager, the manager told the claimant to make a report to HR, but took no action to report or deal with the issue himself.   

Allay argued that it had taken all reasonable steps to prevent the harassment from taking place and that it was not therefore liable for the harassment. It pointed to its equal opportunity policy, anti-bullying and harassment procedure, and the fact that the harasser had undertaken equality training 20 months before Mr Gehlen began to work for Allay.

The tribunal did not accept that Allay had taken all reasonable steps. It found that the harasser and colleagues who overheard his comments had all taken part in the equality training, which included reference to race discrimination. The tribunal found that the training was “stale” and needed to be refreshed. This finding was not based on the time which had passed since the training, but was on the basis that racial harassment had subsequently taken place and that a number of employees had failed to follow the guidance given in the training when they overheard the comments being made.

Mr Gehlen was awarded compensation of just over £5,000. This was on the basis of injury to feelings only and included a reduction of 25% because the claimant had not used the employer’s grievance procedure to raise his concerns.

On appeal, the EAT agreed with the tribunal that the training was no longer effective to prevent harassment, and that there were further reasonable steps that the employer should have taken.

The EAT clarified that tribunals should first consider any steps already taken by the employer and whether these were reasonable, and then go on to consider whether there were any other reasonable steps the employer should have taken. When assessing whether a step is reasonable, the tribunal should consider a range of factors, including cost, practicality and whether a particular step is likely to be effective to prevent discrimination. However, there is no need for the step to be more likely than not to prevent the discrimination for it to be considered reasonable. Employers who argue that a step was not reasonable because it was very unlikely to have prevented the discrimination must establish to the tribunal that this was the case, bringing evidence on this point. In this case, the employer had asked the harasser to undergo equality training following the claimant notifying his potential claim to Acas, suggesting that it considered that such training would be effective. 

Should employers rely on the statutory defence?

In order to rely on the reasonable steps or statutory defence, it will be helpful for employers to be able to evidence that they have implemented clear policies and put in place good quality training which specifically reference discrimination, harassment and victimisation and protected characteristics under the Equality Act 2010.

As this case highlights, it will not be sufficient for an employer to point to the simple fact that a policy has been written and training undertaken. The effectiveness, relevance, accessibility, implementation, review and updating of policies and training will all be factors in convincing a tribunal that all reasonable steps were taken to prevent discrimination.

Evidence that colleagues or managers have taken proactive steps in relation to a complaint of discrimination would help to evidence that policies and training are effective and that all reasonable steps have been taken. 

It is important to note that it is not always advisable for an employer to run the statutory defence. This is because it in effect cuts adrift the employee who is alleged to have done the discriminatory act. This is of course likely to impact on whether the alleged perpetrator will be able to provide useful evidence as a witness to support the employer’s case. It is more common for an employer to defend a claim on the basis that the alleged unlawful act did not take place, or that the treatment of the claimant was for a lawful reason. In such a case, the alleged perpetrator will often helpfully provide first-hand evidence on the reasons for the treatment in question in support of the employer’s defence. 

Claims under the Equality Act 2010 can also be brought against individual employees and claimants may bring claims against colleagues and their employer as joint respondents. Individual respondents to a claim may need their own independent legal advice where the interests of the employer and the individual could be in conflict and particularly where  the employer is arguing that it did all it reasonably could to prevent an employee from doing the alleged act.

Because of the difficulty of navigating these issues, employers should take legal advice when dealing with allegations of discrimination and before deciding to defend a claim on the basis that they have taken all reasonable steps to prevent discrimination from occurring.