In February this year, the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal and rejected an employer’s all reasonable steps defence to a claim of racial harassment in Allay (UK) Ltd v Mr S Gehlen, on the basis that the employer’s equality and diversity training had become ‘stale’ and ineffective.
This case is a timely warning for employers to review their training literature and ensure that they are equipped to tackle and address the risks regarding bullying, discrimination and harassment in the workplace. But what does this decision mean practically for employers?
Mr Gehlen commenced employment with Allay (UK) Ltd (Allay) in October 2016 and was dismissed for performance-related reasons in September 2017. Mr Gehlen, who described himself as being of ‘Indian origin’, complained that he had been subject to race harassment by a colleague, Mr Ian Pearson. An investigation was undertaken which established that Mr Pearson had made racist comments to Mr Gehlen on a regular basis and at least once a month during Mr Gehlen’s employment with Allay.
Mr Pearson’s comments included that Mr Gehlen ‘should go and work in a corner shop’, that Mr Gehlen drives a Mercedes car ‘like all Indians’, remarks regarding the colour of his skin and questions regarding why Mr Gehlen ‘was in the country’. Following the finding of the investigation, Mr Pearson was mandated by Allay to undertake further equality and diversity training. It is unclear if Mr Pearson became the subject of any disciplinary action resulting from his conduct. It is also known that two managers witnessed the treatment that Mr Gehlen was subject to and had failed to report it to HR.
THE CLAIM AND THE LAW
Mr Gehlen brought claims against Allay, including a claim of racial harassment.
Section 109 (1) of the Equality Act 2010 (EQA) states that employers can be held liable for harassment committed by their employees regardless of whether the harassment was known or endorsed by the employer. In this case the Tribunal needed to consider whether Mr Gehlen was the victim of unwanted comments relating to his race, and whether those comments had the purpose or effect of: (i) violating Mr Gehlen’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for Mr Gehlen. The Tribunal accepted that comments were made to Mr Gehlen on a regular basis despite Allay claiming that Mr Pearson made ‘one off remarks’ and Mr Pearson suggesting during the investigation that his remarks were ‘racial banter’.
ALL REASONABLE STEPS DEFENCE
An employer can defend a harassment claim if it is able to demonstrate that it took all reasonable steps to prevent the employee (in this case Mr Pearson) from doing the discriminatory (or similar) act in question. Allay attempted to defend the claim by relying on the ‘all reasonable steps’ defence. In considering whether Allay took all reasonable steps, the Tribunal assessed the steps that had been taken, the effectiveness of such steps and whether further reasonable steps were required. The burden of proof was on Allay to demonstrate that it had taken all reasonable steps in preventing the harassment of Mr Gehlen from occurring.
Allay referred to the equality and diversity training it had at its workplace and the additional equality and diversity training it ordered Mr Pearson to undertake following the internal investigation. The Tribunal rejected Allay’s defence and upheld Mr Gehlen’s complaint of racial harassment, noting in particular that Allay’s equality and diversity training had become ‘stale’ and ineffective. The Tribunal considered it reasonable to have expected Allay to have provided refresher training.
The Tribunal’s decision was based not only on the comments made by Mr Pearson but also recognised that Allay’s managers did not properly react when they witnessed the racial harassment and failed to report it to HR, pointing to their lack of knowledge and confidence in responding to or reporting the harassment they had witnessed. This further supported the Tribunal’s assessment that the training was ineffective as it had not prepared or equipped the staff to take appropriate action. Allay appealed the decision.
THE APPEAL DECISION
The EAT dismissed Allay’s appeal and held that the Tribunal was entitled to conclude that the training Allay had provided to its staff, including Mr Pearson and the managers who failed to report the issue to HR, had become stale and required refreshing.
WHAT DOES THIS DECISION AND THE LESSONS FROM THIS CASE MEAN FOR EMPLOYERS?
Basic policies and training are not be enough
This recent decision highlights that it is not enough for an employer to state that it is has taken all reasonable steps to prevent harassment from occurring if it solely relies on its standard internal policies and training that are rarely updated or rolled out to staff on a routine basis. Basic policies and training, even if they are reflective of the minimum standard of law, do not consider the nuanced people issues that appear more frequently in the workplace. These may include microaggressions and bias and can, overtime, give rise to issues of bullying, harassment and discrimination. We recommend that training and policies are reviewed and updated regularly, and certain training topics be made mandatory for staff.
A high threshold must be satisfied
Whilst Tribunals may take into consideration the size and scale of the employer to determine what ‘all reasonable steps’ are in the circumstances, the ‘all’ indicates a high threshold that needs to be satisfied in order to rely upon the defence. For employers that are regulated and have in place robust compliance training programmes, comparisons may be made between the effort required to ensure the effective roll-out and completion of compliance training, and the effort placed on ensuring that equality and diversity training is of the right quality and quantity, as described further below.
Quality and quantity
Employers should take note of the assessment undertaken by the Tribunal and the EAT regarding the quality of the equality and diversity training, and that the Tribunals are more willing to assess the effectiveness of such training in practice. The Tribunal and the EAT specifically noted the acts of Mr Pearson as well as the inaction of the two managers who witnessed the harassment and did not report it to HR.
Employers should therefore ensure that their training addresses the difference between banter, bullying, harassment and discrimination, and sets out the options staff have available to them to intervene or report such incidents. This is particularly important amid the current climate concerning #metoo, Black Lives Matter, the hate crimes on Asian communities and the rise in antisemitism complaints. Such training should address building the knowledge and awareness of lived experiences through an equality and diversity lens and set out the actions that attendees may take in order to addressing such issues. The training should also include regular refresher sessions which build and elevate staff knowledge and awareness of the issues and topics covered. Based on our experience, we recommend that refresher sessions are deployed on an annual basis at a minimum.
Tailor training to your audience
Employees that are in positions of leadership, management, human resources, employee relations and diversity and inclusion have very different roles in the workplace when compared to the broader staff audience. Their responsibility and ability to intervene and manage risk for their employer continues to become increasingly more important to an employer’s risk management framework. Both managers and HR professionals, amid the current climate, are dealing with people issues that they have never or rarely dealt with before. This compounds the issues of literacy, awareness and the confidence in dealing with such issues in a manner that effectively manages people risk and the safety of staff. We strongly recommend that training is tailored to suit specific audiences to better equip such staff in addressing issues of bullying, harassment and discrimination early.
HOWLETT BROWN TRAINING
During 2020 we delivered training across a broad range of sectors and industries including Pharma and Life Sciences, Tech, Media and Press, Advertising, Fitness, Financial Services and Professional Services. We have continually developed our training services to ensure that they balance the need for building literacy, empathy and confidence of attendees to take appropriate action that supports an anti-discriminatory culture and aids employers in managing people risk. Having reflected on the specific needs of employers and key stakeholders within the workplace and the current market and climate where greater cost controls need to be considered, we have devised an Anti-Discrimination, Bullying and Harassment training package. Our training packages are tailored to suit all audiences in the workplace in a helpful and meaningful way.
We offer these training packages as video modules tailored to suit all audiences including managers and HR. Our packages are provided to clients in a format that should be compatible with an in-house learning and development or compliance platform that is used for rolling out other staff training programmes. For employers who would prefer not to deliver such training by video, we provide this training in the format of live online training sessions delivered by experienced trainers.
As part of this package, we also provide a refresher session six months from the date the package is obtained to ensure that we capture any informational updates relevant at such time the refresher session is required.