Earlier this month, in the case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) ruled that the 'reasonable steps' defence to harassment could not be relied upon where the training has become “stale” and required refreshing.
Under s109(4) Equality Act 2010, an employer can defend a claim resulting from the discriminatory actions of an employee if they can show that they took all reasonable steps to prevent this from happening, by way of effective and up-to-date training and policies.
In this case, Mr Gehlen was subject to discriminatory comments on a regular basis from one of his colleagues. The comments were overheard by numerous members of staff, including two managers, and had been reported to management by Mr Gehlen previously.
Mr Gehlen was subsequently dismissed on the basis of conduct and thereafter raised a claim against his employer for harassment and discrimination. The harassment aspect of the claim succeeded, which the employer then appealed on the basis that they had taken all reasonable steps to prevent the harassment in question.
The employer had previously supplied training to the perpetrator in early 2015 that covered equality, diversity, bullying and harassment. Whilst the Tribunal had acknowledged that training had been delivered to the employees, it was now “clearly stale” and the employer had not taken all reasonable steps to avoid the harassment; a reasonable step would have been to provide refresher training. This was supported by the fact that the perpetrator thought that his remarks constituted “banter” and that Mr Gehlen’s colleagues, including managers, failed to report these instances.
The EAT upheld the Tribunal’s original decision and rejected the employer’s ‘reasonable steps’ defence prescribed by the Equality Act. In doing so, the EAT outlined what effective and reasonable training should look like: Firstly, training should be meaningful and thorough in order to be effective as “brief and superficial” training is unlikely to be an effective way to prevent harassment; Secondly, it is imperative that training remains up-to-date and has a lasting effect on employees, as ‘stale’ training will not demonstrate that an employer has taken reasonable steps to prevent the harassment occurring. Likewise, if harassment continues to occur within the workplace, employers should consider refreshing or improving the quality of their training.
This decision sends a clear message to employers that all policies, procedures and training should be kept up-to-date and should be of high quality. The ‘reasonable steps’ defence will only succeed where the training given is thorough and effective; if employees are not adhering to policies, it may be that the training given was not effective or that the training requires to be refreshed.
LAW offers in-depth training courses covering equality, discrimination and harassment that are tailored to your business, for both managers and employees. To learn more, contact our Employment Law and HR Training Manager, Lorna Gemmell.