Under the Equality Act 2010, where an employee is claiming that the employer is responsible (vicariously liable) for the discriminatory actions of another employee, an employer can use the “reasonable steps defence” where it can show it took all reasonable steps to prevent discrimination in the workplace.
The usual evidence produced for this defence is:
- Having an up-to-date equality and diversity policy in place which employees are aware of; and
- Effective training having been provided to employees, managers and directors.
In the recent case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal has given us a reminder that, even if an employee who has harassed another employee had done so after the equality and diversity policy had been drawn to the employee’s attention and training had been provided, it is not sufficient if that training had become “stale” and ineffective. In this case, the perpetrator had received training two years prior to the incident he was accused of.
Further, others (including managers) who had heard the comments or it was reported to them, did not know what to do.
The employee had raised a grievance regarding the harassment. The grievance outcome concluded that a discriminatory comment had been made and the perpetrator was required to undertake further equality and diversity training.
The EAT held that the perpetrator should have had refresher training prior to the incident occurring. As such, the EAT is effectively suggesting that training should have been completed annually and also that training should be effective.
The EAT found that:
- The fact the perpetrator thought it was only ‘banter’ was evidence that the training had faded from his memory;
- The fact that managers did not know what to do when they observed harassment, or when it was reported to them, suggested that the training had also faded from their memories; and
- The employer must have thought that training was effective because the outcome of the grievance was that further training should be provided.
A Tribunal will look at the size and resources of a business when considering what is reasonable, but this case demonstrates that there is a high burden on employers in this respect.
As such, whilst COVID-19, Health and Safety and Brexit issues are likely to be dominating your business at the moment, as soon as you are able, we would advise that you review your policies and training.