Under the Equality Act 2010, an employer can successfully defend a claim of discrimination (in this case harassment) on the grounds that it took all reasonable steps to prevent the discrimination from taking place. The logic being that if an employer has done all it reasonably can, it should not be held liable for the actions of errant employees who circumvent the employer’s rules. A typical step is for employers to provide workplace training to their staff.
In the recent case of Allay (UK) Ltd v Gehlen the Employment Appeal Tribunal (EAT) has upheld a tribunal’s finding that an employer failed to take all reasonable steps to avoid an employee being racially harassed by another. The EAT confirmed that the employment tribunal was entitled to find that the equality and diversity training delivered to employees nearly two years prior to the harassment was “stale”. The tribunal held that there was evidence that the training was insubstantial and that employees had forgotten it. Therefore, the employer could not show that all reasonable steps had been taken.
In an unhelpful comment the tribunal noted that the employer had in fact given the perpetrator further refresher training after the harassment took place. This, the tribunal held, suggested that the employer felt that further training would in fact have been helpful in avoiding the harassment in the first place. This seems a difficult criticism of the employer who, in apparent good faith after being made aware of the issue, took steps to try and remedy it, only to have those steps then used against them.
This case highlights the need for employers to provide regular equal opportunities training to their employees and to ensure that it is of high quality.
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