The Employment Appeal Tribunal (EAT) recently held in Allay (UK) Ltd v Gehlen that an employer was not able to rely on the "reasonable steps" defence to a harassment claim and therefore had to pay a former employee compensation of just over £5,000. It had provided training to the perpetrator and other employees around 20 months before the harassment took place but the EAT held that the training had become stale and needed refreshing, meaning that the employer could not use the defence and was liable for the harassment.

Background

Under section 109(4) of the Equality Act 2010, an employer can defend a claim resulting from the discriminatory actions of an employee if it can show that it took "all reasonable steps" to prevent the employee from carrying out the discriminatory act or carrying out such acts in general.

Facts

Mr Gehlen started employment with Allay (UK) Ltd, a company that processes consumer claims, as a senior data analyst in October 2016. He described himself as being of Indian origin. Some 11 months later he was dismissed for performance-related reasons and complained that he had been subjected to racial harassment by a colleague, Mr Pearson, throughout his employment. An investigation found that Mr Pearson had made racist comments. He admitted that his comments were "racist banter" and he was ordered to undertake further equality and diversity training. A colleague who had heard Mr Pearson make a racist remark did not report it, and two managers who had been informed about the racist comments did not take any action. Employees had received equality and diversity training, which included harassment relating to race, in early 2015.

Mr Gehlen brought employment tribunal (ET) claims against the company, including for racial harassment. The company attempted to rely on the "reasonable steps" defence but the ET rejected their defence and upheld Mr Gehlen's harassment claim. The company appealed.

Held

The EAT dismissed the appeal. There was sufficient evidence for the ET to conclude that, whatever training had been carried out, it was no longer effective because four employees had failed to act appropriately. There was evidence that employees had forgotten the training: Mr Pearson thought that his remarks were just "banter", the colleague who overheard his comments did not report them, and the two managers who were told about the racist remarks did not know what to do. It would have been a reasonable step to carry out refresher training and there was no reason to conclude that it would not have been effective.

Comment

This decision is a good reminder that it is not enough just to carry out equality and diversity training as part of an induction programme for new joiners, or to do it for the workforce every couple of years: in order to have a defence to a discrimination claim, an employer should carry out regular refresher training. The quality of the training is relevant and it must be substantial. Training on its own is not enough; regularly updated policies are needed, which must be communicated to employees, together with a culture where discrimination and harassment are not tolerated. It is also worth pointing out that the employer in this case was relatively small and the ET will expect more from a large employer.

The compensation in this case was fairly low but there is no cap on the amount of compensation that can be awarded in a successful discrimination claim. The highest discrimination award in 2019/20 was £265,719 and there have previously been seven figure awards.

Since many employees are working from home at the moment (and where they are working in the workplace, social distancing may make it difficult to gather them together for training), employers may have to think creatively about how they are going to deliver regular equality and diversity training to cope with the practical challenges thrown up by the pandemic. It may have to be done remotely or via online training.

If you have any queries on this case or would like to discuss equality and diversity training, please get in touch with your usual Womble Bond Dickinson contact.