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In brief

The EAT has held that an employer could not rely on the defence under the Equality Act that it had taken all reasonable steps to prevent harassment, as its diversity training had become “stale”. The EAT confirmed that when looking at whether the step relied on by the employer, here diversity training, was reasonable, “it is not sufficient merely to ask whether there had been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective.”


Key takeaways

  • The decision is a helpful reminder that the “all reasonable steps” defence to a claim for discrimination or harassment has a high threshold.
  • Where employers seek to rely on it, they are likely to have to show (as a minimum) that they had appropriate policies and training in place and the Tribunal is likely to look at the content of the policies and training. The EAT made some comments about the quality of the policies and training in this case stating that “the policies and training do not appear to have been very impressive, even for a relatively small employer”. Employers are also likely to have to show that the training was recent and so employers should think carefully about the frequency of diversity training.
  • Even where there is recent and thorough training, the EAT stated that employers will not be able to rely on the defence if managers were aware that harassment was taking place and did nothing to prevent it. The case underlines the importance of having a culture where harassment and discriminatory treatment are not tolerated.

For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.

In more detail

Background

The Equality Act provides that anything done by an employee in the course of their employment must be treated as also done by the employer and that it does not matter whether this is done with the employer’s knowledge or approval. Therefore, if one employee harasses another, the employer is liable for this. However, the employer has a defence if it can show it has taken “all reasonable steps” to prevent the person from doing the act which gives rise to liability or anything of that description.

Facts

The claimant was subjected to regular racist comments by a colleague [P]. A manager and another colleague overheard those comments but took no significant steps to prevent further comments. The claimant also told another manager about the comments and was advised to raise the issue with HR himself, but took no further steps. P and the other employees had attended equality and diversity training, including bullying and harassment training a year and eight months before the claimant started employment. The claimant was employed for about a year. The training advised employees to “speak up” if they became aware of inappropriate behaviour.

The claimant brought a claim for harassment in the tribunal. The employer argued that by having in place an equal opportunities policy and an anti-bullying and harassment procedure and delivering diversity training, it had taken “all reasonable steps” to prevent the harassment from occurring.

The tribunal rejected the employer’s defence on the basis that the diversity training had become “stale” and that further steps, in the form of refresher training, ought to have been taken. In coming to its decision, it took into account the comments made by P, that P had thought that what he was doing was no more than “banter” despite having undergone the training, and the failure by the other colleagues to escalate the matter as set out in the training.

EAT decision

The EAT considered that the tribunal was entitled to take those factors into account and conclude that the training had become “stale”.

The EAT confirmed that when an employer relies on the “all reasonable steps” defence, a Tribunal should first identify any steps that the employer has taken and whether they are reasonable. It should then consider whether any other steps could reasonably have been taken. In deciding whether other steps would have been reasonable, it may be appropriate to consider the cost or practicality of taking those steps and how likely they would be to prevent discrimination. The EAT emphasised that the purpose of the defence is to encourage employers to take significant and effective action to combat discrimination, which is why it is only available if all reasonable steps have been taken.

In relation to training, the EAT observed that it will be relevant to consider how likely it is that the training will prevent harassment and for how long. Brief and superficial training is unlikely to have a substantial effect in preventing harassment and any effect it does have is unlikely to be long lasting. Thorough and forcefully presented training is more likely to be effective and to last longer. However, even if the training is thorough and recent this will not provide a defence if managers are aware that harassment is continuing and do nothing to address it.

The EAT also said that it would have been better for the tribunal to make more detailed findings about the policies that were in place and the training that had been undertaken. The EAT commented on the quality of the training noting that whilst the equality and diversity training included a slide on examples of harassment which included “offensive jokes, suggestive or degrading comments”, there was no reference to race or racial stereotypes and that the anti-bullying and harassment procedure only referred to harassment in the title and made no mention of race. Overall, the EAT considered that “the policies and training do not appear to have been very impressive, even for a relatively small employer”.

Gehlen v Allay (UK) Limited, EAT

Author

Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

Author

James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.