EAT provides guidance for employers seeking to rely on the “reasonable steps” defence in harassment claims09/02/21
In Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) rejected the employer’s appeal against a finding of harassment and held that simply providing training will not always be enough for an employer to defend such a claim if that training is not effective.
The Claimant (who described himself as being of Indian origin) was employed for 11 months by the Respondent before being dismissed for performance related reasons. After his dismissal he submitted a claim for direct race discrimination and racial harassment. The Employment Tribunal (ET) upheld his claim for harassment, finding that he had been subjected to racist comments throughout his employment, and that the comments had been overheard by three colleagues (two of whom were managers) who failed to report them. The ET rejected the Respondent’s statutory defence (available to employers under s.109(4) of the Equality Act 2010) that they had taken all reasonable steps to prevent the harassment complained of, on the basis that the employer had not provided refresher training when it became obvious (through the comments made and the inaction of the managers) that the training that had been provided 20 months before the Claimant started his employment was “clearly stale”. The Respondent appealed on the basis that the ET had taken the wrong approach to the reasonable steps defence.
The EAT’s decision
The EAT rejected the appeal and upheld the ET’s decision. The EAT set out the following principles for employers seeking to rely on the statutory defence and for tribunals considering it:-
- Employers seeking to rely on the statutory defence must meet a very high threshold; “The defence is available, but only to the employer that can show that all reasonable steps to prevent harassment have been taken.”
- A three stage approach is required to determine the reasonable steps defence:-
“1) identify any steps that have been taken,” In this case, training had been provided and policies put in place.
“2) consider whether they were reasonable,” If there has been training (as in this case), stage 2 will require that “consideration has to be given to the nature of the training and the extent to which it was likely to be effective” and “what has happened in practice”. Questions may include: How comprehensive was the training? Has it been understood, wilfully ignored or disregarded?
“3) consider whether any other steps should reasonably have been taken.” If there have been incidents of harassment since the training that are known to the employer, what further action is required to prevent it happening again? For example, does the training need to be improved and/or re-run? “The likelihood of such steps being effective will be a factor in determining whether such further steps are reasonable” (although it “is not necessary to conclude that it would be more likely than not to prevent discrimination of the type being considered”). Also, Stage 3 “may, when appropriate, include considerations such as cost or practicality.”
What to take away
The EAT found that the statutory defence “is designed to encourage employers to take significant and effective action to combat discrimination” (our emphasis) and will only succeed if the employer has taken all reasonable steps to meet that aim. We therefore recommend that employers be proactive in meeting that aim by ensuring that they have policies and training in place that promote equality, diversity and inclusion, are fit for purpose and are understood by all. Employers should not approach training as a “tick box” exercise that can be forgotten about once it has been delivered, but rather the training and any ongoing needs should be kept under regular review.
How Capsticks can help
Capsticks has significant experience of supporting employers to prevent harassment (by drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims). For further information on how we might assist your organisation, please contact Alistair Kernohan, Paul McFarlane or Chloe Edwards.