Employers have a potential “all reasonable steps” defence to discrimination claims arising from an employee’s otherwise discriminatory behaviour. The recent case of Allay (UK) Limited v Gehlen provides some helpful guidance for employers on the nature and quality of policies and training needed to succeed with this defence.
If, in the course of employment, an employee unlawfully discriminates against another employee, the employer is treated as having carried out that discrimination. It makes no difference that the employer may not have known about the behaviour or has not condoned it. In such cases, employers will often seek to rely on a “reasonable steps” defence under section 109(4) of the Equality Act 2010. This defence, often referred to as the “statutory defence”, requires the employer to show it has taken all reasonable steps to prevent the discrimination from taking place. It is a two-stage test looking first of all at what has been done (e.g. provision of policies, training, available resources etc.) and secondly, at whether other reasonable steps could have been taken.
The Claimant in this case was a Senior Data Analyst. He was dismissed about a year into his employment with the Respondent business on the grounds of poor performance. He brought claims of direct race discrimination and harassment on the grounds of race.
The direct race claim failed, but the Employment Tribunal upheld the harassment claim and rejected the Respondent’s attempt to argue the statutory defence. The Respondent business pointed to the fact that it had an equal opportunity policy, an anti-bullying and harassment policy and had provided training on those policies. The training had taken place around two years earlier and included only one slide on what could be considered to amount to harassment.
The statutory defence failed and the Respondent business appealed to the Employment Appeal Tribunal (EAT).
The EAT rejected the Respondent’s appeal. The statutory defence had correctly been rejected by the Employment Tribunal.
The following parts of the EAT’s decision are worth highlighting:
- Diversity training provided around two years earlier had become “stale”.
- It would have been a reasonable step for refresher training to have been provided.
- The need for refresher training was demonstrated by other employees being aware of the alleged racial harassment but not reporting it under the employer’s equal opportunity policy.
- The likely effectiveness of the missing steps (here refresher training) is a relevant but not decisive point when assessing reasonableness.
- “Brief and superficial training is unlikely to have a substantial effect” and unlikely to last long.
- By contrast, “thorough and forcefully presented training is more likely to be effective, and to last longer.”
- In this case the policies and training were found not to be “particularly impressive” even for a small employer.
This case is a very helpful reminder of the importance of having well-drafted policies backed up by regular and effective training. A tick-box approach to policies and training will not suffice. This case shows that the quality, content and delivery of the employer’s policies and training will be looked at by Tribunals in some considerable detail and that ongoing monitoring and enforcement is needed to avoid the training become stale and ineffective.
Clearly, many businesses are facing uncertain times and squeezed budgets but investing sufficient time and resource into effective and regular inclusion and diversity training (even if delivered online for the foreseeable future) is vital if employers wish to rely on this statutory defence and avoid uncapped awards in discrimination cases arising from the conduct of its employees.
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