In the recent appeal case of Allay v Gehlen, the Employment Appeal Tribunal (EAT) ruled that an employer cannot rely on the “all reasonable steps” defence to harassment where the anti-harassment training provided to the perpetrator of harassment has become “stale” and ineffective.
Under the Equality Act 2010, employers can be held responsible for harassment committed by their employees regardless of whether the employer approved of or even was aware of that behaviour. However, the Equality Act also provides a statutory defence which provides that an employer can avoid liability for the discriminatory actions of its employees where it can establish that it took all reasonable steps to prevent the offending employee from doing the acts in question. This is known as the “all reasonable steps” defence.
The Claimant in this matter was subjected to racist comments on a regular basis by a colleague in the workplace. Two managers were aware of the racist comments but took no action other than issuing a very minor reprimand and they did not report the incidents. The perpetrator and the managers had all received anti-harassment training by the employer in the two years prior to the incidents.
The Claimant brought a claim for harassment on the grounds of race. The employer sought to rely on the “all reasonable steps” defence. The EAT upheld the Employment Tribunal’s decision that the employer could not defend a claim relating to the alleged discriminatory actions of its employees where it had failed to prevent its training from becoming “stale” and ineffective.
The EAT highlighted the importance of the word “all” in its judgment and suggested that employers will face a high threshold in order to successfully provide that all reasonable steps were taken. The EAT found that it is not sufficient for an employer to simply show that it has relevant policies in place, nor that it provides equality and diversity training to its employees. The EAT made clear that an employer must show that it provided its employees with effective materials to prevent discrimination, bullying, and harassment in the workplace and that it subsequently took any necessary steps to make sure that the training continued to have an impact on employees.
In this case the EAT found that the training had become “stale” and needed refreshing. It is therefore clear that employers must consider both the frequency and the quality of the training they provide to their employees to ensure that they are seen to be taking “all reasonable steps” subsequently increasing the likelihood of being able to rely on the statutory defence. Here, it seems that a reasonable step would have been for the employer to provide updated and regular training on equality and diversity.
