Reasonable steps to prevent workplace harassments?
An employer who argued that it had taken ‘all reasonable steps’ to prevent harassment by providing training to its employees, failed on the basis that the training had become ‘stale’.
Background - Allay (UK) Ltd v Gehlen
Mr Gehlen, who is of Indian origin, was employed by Allay as a Senior Data Analyst from 3 October 2016 until his dismissal on 15 September 2017. Following his dismissal, Mr Gehlen raised that he had been subject to racial harassment by another employee during the course of his employment. In light of this allegation, Allay carried out an investigation which found that racial comments had been made but the employee deemed them to be ‘banter’. Mr Gehlen proceeded to bring an Employment Tribunal claim for racial harassment, which was upheld by the Tribunal. The Tribunal also found that two of Mr Gehlen’s managers were aware of the racist comments but failed to take any appropriate action.
Allay argued that it had taken all reasonable steps to prevent the harassment and therefore they should not be liable. The steps relied upon by Allay included:
having in place an equal opportunity policy;
having anti-bullying and harassment procedures; and
providing training in equality and diversity and bullying and harassment to its employees in 2015/2016.
The Tribunal rejected Allay’s argument that it had taken all reasonable steps to prevent the harassment on the basis that the training had become ‘stale’ because the acts of harassment had taken place after the training had been conducted and the two managers had failed to take appropriate action once becoming aware of the racist comments. The training was also provided two years before the acts of harassment.
Allay appealed to the Employment Appeal Tribunal.
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Employment Appeal Tribunal (‘EAT’)
Upon appeal, the EAT held that the earlier Tribunal was right to conclude that the training was stale and no longer effective at preventing harassment. The EAT said that there were further reasonable steps Alley should have taken, including retraining. The EAT did acknowledge that the earlier Tribunal failed to take into account Allay’s policies and procedures it had in place at the time; however, the EAT concluded that, regardless, they were not impressive, even for a small employer. In light of the above, Allay’s appeal was dismissed.
The case demonstrates that, for an employer to rely on the defence that it had taken all reasonable steps to prevent any harassment and/or discrimination, it must regularly review all of its policies and carry out regular training. It is worth taking note that the EAT emphasised that, in order for an employer to rely on this defence, the threshold is high and that it is not sufficient to have ‘brief and superficial training’. Therefore, all policies and training should be to an appropriate level and up to date. In this case, the training was given two years before the acts of harassment and the Tribunal found that this was inadequate. It is likely, therefore, that Tribunals will expect training to be carried out on a yearly basis, depending on the size of the company.
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