In Allay (UK) v Mr S Gehlan, Mr Gehlan had complained of treatment he had received and comments made to him by a particular employee, and how managers who were made aware of such comments did not act appropriately. The starting point is that employers are liable for the actions of their employees for things done in the course of their employment. This includes acts of discrimination. There is an exception and defence to this concept of vicarious liability where the employer has taken all reasonable steps to prevent discriminatory conduct or behaviour taking place. Section 109 of the Equality Act 2010 provides the basis for such a defence.
Many discrimination cases feature multiple defendants, the employer and one or more ‘offending’ employees. If an employer can show that all reasonable steps were taken to prevent an employee acting in an offending manner (that which has caused the complaint), then a successful defence by the employer may be mounted to a claim. In some cases, the employer is successful in their defence while an individual employee (the perpetrator) is found liable.
Claims with multiple defendants cause employers to consider the strategy of their defence. Do they stand alongside an alleged perpetrator of the offending conduct and defend as one, or separate themselves and claim an extra defence? The extra defence being, even if the alleged discriminatory conduct is proved, the employer has taken all reasonable steps to prevent it occurring. In those circumstances and if the extra defence is successful, an employer may be excused, but the individual employee alleged to have perpetrated the conduct will be liable to the claimant.
When raising such a defence the burden of proof is on the employer to prove that all reasonable steps were taken to prevent the behaviour complained of.
In addition to the primary reason – that employers aim to conduct business without discriminating behaviour occurring – the extra legal defence referred to has helped generate the need for equal opportunities policies. This includes references to discriminating behaviour within the list of gross misconduct items in disciplinary policies and the mandatory training for all employees.
The Employment Appeal Tribunal’s (EAT) decision in Allay is a wake-up call for all employers. It upheld the original tribunal ruling that the training that was offered to the perpetrator and managers within the business had not been effective and had become stale. In particular, the tribunal noted that while at least one manager advised Gehlan to report the alleged comments to HR, his manager had not done so.
Gehlan’s claim was made in 2017. The perpetrator of the offending comments along with others including the managers of Allay had all undergone training in 2015. It appears the training had some structure to it with the use of a PowerPoint presentation to show examples of unacceptable behaviour and comments.
One might have thought that relatively recent training might stand the employer in good stead in arguing that it had taken all reasonable steps to prevent the behaviour complained of, but the original tribunal concluded that the employers’ responsibilities in this area were to monitor the effectiveness of such training and if necessary repeat it or improve it.
The fact that managers who had been subjected to the training had not followed the steps recommended during the session less than two years later was good evidence that the training was not effective and/or had become stale. In those circumstances the employer had not taken all reasonable steps and the EAT dismissed Allay’s appeal against the tribunal’s original finding.
The lesson for employers is to ensure that effective training is in place, that it is mandatory and, importantly, that the effectiveness of such training is regularly reviewed and repeated (with improvements where necessary).
David Bradley is head of employment law at Ramsdens Solicitors