'Stale' harassment training and the 'reasonable steps' defence


Employers who wish to rely on the defence that they took ‘all reasonable steps’ to prevent harassment, because they provided equalities training, should take note of important recent guidance from the Employment Appeal Tribunal (EAT).

An employer may defend a harassment or discrimination claim if it can show it took all reasonable steps to prevent the harassment or discrimination from taking place.

Providing training on preventing discrimination and harassment is a common way in which employers can show that they took ‘all reasonable steps’.

The EAT has said if training has not been updated and has, therefore, been allowed to become 'stale', then the employer cannot rely on the ‘all reasonable steps’ defence

Background

Under the Equality Act 2010 (and in Northern Ireland, the respective pieces of equality legislation), A person (A) harasses another (B) if A engages in unwanted conduct, related to a relevant ‘protected characteristic’ (such as race or gender), which has the purpose or effect of either:

  • violating B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The general rule is that an employer will be vicariously liable for acts of discrimination or harassment carried out by their employees in the course of their employment.

However, the equality legislation provides that in respect of anything alleged to have been done by an employee in the course of their employment, it is a defence for the employer to show that they took all reasonable steps to prevent the employee from

  • doing that thing; or
  • from doing anything of that description.

This is often known as the ‘reasonable steps’ defence.

In the case of Allay (UK) Limited v Mr S Gehlen, the Employment Appeal Tribunal looked at whether training provided approximately two years before an act of harassment was sufficient to allow the employer to rely on the ‘reasonable steps’ defence.

Facts

Mr Gehlen, who describes himself as being "of Indian origin", was employed by Allay (UK) Ltd from October 2016 until his dismissal in September 2017. After his dismissal Mr Gehlen complained he had been subjected to racial harassment by a fellow employee. Allay undertook an investigation which determined that Mr Pearson had made racist comments, which he characterised as "racial banter".

Mr Gehlen subsequently brought proceedings in the employment tribunal for direct race discrimination and harassment related to race. The tribunal upheld the complaint of harassment.

The tribunal found that the employee had regularly made racist comments to Mr Gehlen. Additionally, the tribunal found that one of Mr Gehlen's colleagues and two managers were aware of the racist comments but took no substantive action.

The tribunal found Allay had an equal opportunity policy and an anti-bullying and harassment procedure. The employees in question had all received equality and diversity training in January 2015 and anti bullying and harassment training in February 2015.

However, the tribunal rejected Allay's defence that it had taken all reasonable steps to prevent the harassment. It held that the training was clearly "stale" and Allay had not taken all reasonable steps to avoid discrimination in the workplace; a ‘reasonable step’ would have been to refresh the training.

Allay appealed to the Employment Appeal Tribunal (EAT). 

Decision

The appeal was dismissed. The EAT held that the tribunal was entitled to conclude the training was stale and no longer effective to prevent harassment, and there were further reasonable steps that Allay should have taken.

The EAT confirmed that once the steps, if any, taken by an employer have been considered, it then needs to address whether there were any other reasonable steps that it should have taken.

In determining whether steps were reasonable, the following factors should be considered.

  • Likelihood of steps being effective in preventing discrimination (does not need to be more likely than not);
  • cost; and
  • practicality.

It also concluded that existing case law stated that if there is a further step that should reasonably have been taken by the employer to prevent harassment, the defence will fail, even if that step would not have prevented the harassment that occurred.

With regard to the steps Allay took to prevent to discrimination, the EAT found that the training had been given over a year before the harassment.

It was determined that there was sufficient evidence to conclude that the training was no longer effective; the employee had made racist comments and thought they were "banter" and other employees took no further action on becoming aware of the comments.

Allay argued that in determining that refresher training was a reasonable step, the tribunal was required to consider the effectiveness of any refresher training in preventing discrimination. The EAT determined there was nothing in the case which suggested that further training of a good standard would not have had a good chance of being effective. The EAT noted that, following the investigation, Allay had provided the employee with further training and would not have done so if they thought it would be ineffective.

The EAT emphasised that an employer seeking to rely on the defence that it has taken all reasonable steps to prevent harassment or discrimination has to cross a high threshold.

In the course of its judgment the EAT identified a three-stage approach:

  • Identify any steps that have been taken;
  • Consider whether they were reasonable; and
  • Consider whether any other steps should reasonably have been taken.

Comment

It is generally accepted that simply having equalities policies and procedures, on their own, will not be enough for an employer to escape liability for discrimination or harassment. Those policies and procedures must be actively implemented.

And this case shows that active implementation means more than simply the provision of training. The quality of the training is relevant, with the EAT noting that "brief and superficial training is unlikely to have a substantial effect in preventing harassment nor will it have long-lasting consequences". It is also clear that if an employer has cause to believe that employees have forgotten the training, it should be refreshed.

So, this case is a reminder of the importance of ensuring that anti-discrimination training is substantial in nature and regularly updated, to avoid it becoming "stale".

Looking beyond this case, training is just one part of the picture when it comes to promoting equalities at work. Employers should be taking steps to promote a positive equalities culture throughout their organisation, with visible, senior level sponsorship and clear reporting lines for employees who wish to raise concerns.

Don’t hesitate to contact us to discuss how we might support you in this internal activity

Contributor: Angharad Roberts

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.


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