Where an individual has brought a claim against an employer for the unlawful discriminatory actions of a colleague, employers will often rely on section 109(4) Equality Act 2010. This provides that an employer can defend such claims if it can show that all reasonable steps were taken to prevent the offending employee from doing the discriminatory act(s).
Can an employer rely on the ‘reasonable steps’ defence where it provided training to the perpetrator of the discriminatory act and other employees on discrimination in the workplace? If so, in what circumstances would this be considered inefficient?
Allay (UK) Limited v Gehlen
The Claimant was employed by Allay, a company specialising in processing consumer claims relating to financial mis-selling, as a Senior Data Analyst from October 2016. He was dismissed due to performance issues in his role in September 2017. The Tribunal accepted that the reason for the dismissal was the Claimant’s performance.
Following his dismissal, the Claimant raised a complaint that he had been subject to harassment relating to his race (the Claimant is of Indian origin) by a colleague, Mr Pearson. The employer investigated the allegations and found that Mr Pearson had made racist comments and was ordered to undertake further Equality and Diversity training.
The Claimant issued a claim for harassment related to race and Allay relied on the ‘reasonable steps’ defence, stating that it had taken all reasonable steps to prevent the harassment as the perpetrator, and the rest of the workforce, has received equality and diversity training.
The Employment Tribunal rejected the defence. It found that Mr Pearson had made racist comments at least once a month towards the Claimant, including references to the Claimant’s ‘brown skin’, suggesting he should work in a corner shop and asking why he was in this country. It found that Allay had not taken ‘all reasonable steps’ on the basis that the training had been delivered in 2015 and as such had become ‘stale’. It would have been a reasonable step to provide refresher training. The need for refresher training was amplified by the racist comments themselves and the fact that it had been heard by other colleagues but not reported.
Allay appealed to the Employment Appeal Tribunal on the grounds that the approach taken by the tribunal to the ‘reasonable steps’ defence was wrong. In particular, Allay considered that the ET had focused on the effectiveness of the training, rather than whether Allay had taken all reasonable steps to prevent the discrimination from happening.
The EAT rejected the appeal.
The defence is based upon the employer establishing that they had taken all reasonable steps to prevent the discrimination. That is a high benchmark. Whilst the ET had taken a slightly broad-brush approach to the steps taken by the employer, it nevertheless considered that the equal opportunities training had become stale and that if it had been refreshed, the discrimination may not have occurred. All reasonable steps had not been taken.
Topically, the EAT drew an analogy with the COVID pandemic and vaccines. It is not just a case of whether a vaccine will work, but how long it will protect us and when will we need a booster.
The key point for employers to take from this case is to review what steps they have taken in their organisation to prevent discrimination from occurring, when such steps had been implemented/communicated and whether they need refreshing.
In the context of training, relying on brief training or training given some time ago may not help the employer to establish the defence. Employers should also be mindful that times change, and societal shifts can redetermine what constitutes racism.
Sensible employers should consider some equal opportunities training, supported by a rolling refresher programme.
If you have any queries in relation to discrimination claims, or would like to discuss any in house training options, please contact our Employment Team on 01228 552600 or 01524 548494.