In Allay (UK) Ltd v Gehlen UKEAT/0031/20 (4 February 2021) we were reminded of the importance of effective and regular training on diversity.
Allay dismissed Mr Gehlen for performance-related issues. He raised a claim of racial harassment. Allay agreed that one of its employees had made racist comments towards Mr Gehlen. However, it sought to rely on the reasonable steps defence.
An employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it can rely on section 109(4) Equality Act 2010 because it can demonstrate that it took all reasonable steps to prevent the employee from doing ‘that thing’, or ‘anything of that description’.
However, the employer’s training must have achieved its purpose in raising workers’ awareness of discrimination and harassment; their equality and harassment policies and procedures; and the routes available to workers for raising concerns. Testing the continuing effectiveness of the training is also key. That requires regular refresher training.
The employer lost because, whilst Allay had provided training in 2015, including racial harassment training, the tribunal found it was ‘clearly stale’ and a reasonable step should have been to provide refresher training.
How can you avoid the same mistake?
- Review your equal opportunities policies to ensure that they are up to date and comprehensive.
- If your policies do not contain relevant examples to effectively illustrate the different protected characteristics as well as the kinds of discrimination and harassment that can occur in the workplace, update them.
- Take steps to ensure that the policies are properly implemented, promoted, and supported at the highest level within your business.
- Check that workers understand the key concepts of discrimination and harassment.
- Regularly remind workers where to find your policies and procedures.
- Have systems in place to ensure that they have read and understood them.
- Revisit your equality and diversity training. Bring training forward if you need to do so.
- Monitor complaints of discrimination and how you handle them.
- Warn staff members that harassment and bullying amount to gross misconduct for which you may dismiss them. Explain that the individual perpetrator may face a claim and they may have to personally compensate the victim.
- Act promptly whenever there is evidence of harassment or bullying behaviour, whether or not anyone has complained.
