This week’s case is an important one for businesses who are seeking to reduce potential liability in the respect of the actions of their employees and workers.
In essence, the EAT have said that any diversity and equality training that has gone “stale” and out of date will not allow an employer to argue that they have taken “all reasonable steps” to prevent discrimination or harassment in the workplace, meaning they have no defence to the actions of their employees for which they are vicariously liable.
Mr S Gehlen was employed by Allay Ltd as a Senior Data Analyst. On the 15th September 2017 he was dismissed for poor performance. He then submitted a claim for racial harassment (he was of Asian origin). He alleged that over the course of his employment he had been subjected to a series of racial slurs, including remarks to the effect that he should go back to his own country, and that he should go and work in a corner shop.
We won’t trot through the whole law on harassment here, as the fact that this was not harassment was not contested. What was however contested was whether the employer could establish a defence.
S109 (4) of the Equality Act 2010 states that the employer has a total defence against any act of discrimination done by its employees, if it can establish that it took “all reasonable steps” to prevent the employee doing “that thing” or “doing anything of that description.” In other words, if the employer has done everything they reasonably could have done to prevent discrimination, but its employee went ahead and discriminated anyway, the employer will not be liable for the acts of its apparently unimpressionable employee.
The employer argued it had taken “all reasonable steps” to prevent discrimination because they had provided their staff with bullying and harassment training roughly three years prior to the submission of the Claimant’s claim.
To consider whether “all reasonable steps” had been taken requires us to ask:
- What steps the employer took?
- What steps would constitute “all reasonable steps”?
- Whether the employer took “all reasonable steps”?
The EAT (agreeing with the tribunal) noted that the employer’s bullying and harassment training was often rather vague, and only included one reference to race (which was actually in the title of the training).
Moreover it called the training “stale” (presumably because it did not incorporate contemporary developments relating to discrimination and equality) and concluded therefore that it was in some sense out of date.
If we apply these considerations to the three-stage test mentioned above:
- The employer attempted to train its staff on bullying and harassment.
- In this case “all reasonable steps” would have been a more thorough and up to date bulling and harassment training course for all employees.
- Therefore, the employer did not take “all reasonable steps” and could not avail itself of the defence.
This decision is an interesting one, as in some sense the EAT have said discrimination training can have a “sell by date” and apparently some discrimination training does not have a very long shelf life, as it can go off in three years’ time.
It is important to note however that both the tribunal and the EAT noted the poor quality of the employer’s training, and this no doubt contributed to the acceleration of its expiry (and the impossibility of the employer claiming they has taken “all reasonable steps” to prevent harassment).
All roads appear to be pointing to the fact that all employers should have solid, expert and engaging training for their staff to undertake in order to mitigate their potential liability for any acts of discrimination or harassment carried out by their employees.
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Coincidently PJH Law is soon to release it’s own bespoke series of training courses for employers and employees, ranging from “Dignity at work” (which covers all issues relating to discrimination and equality) to “Data Protection” (which equips executives with the legal knowledge they need to know in order not to make data breaches.) Get in touch with the firm if you would like to know more about this imminently available (and very reasonably priced) offering.