An employer is vicariously liable for the discriminatory actions of their employees under section 109(4) of the Equality Act 2010, unless it can demonstrate that it took ‘all reasonable steps’ to prevent the person from undertaking the acts in question. And the burden of proof lies with the employer.
In Allay (UK) Limited v Gehlen, the claimant was dismissed for performance reasons. After the dismissal, he raised an internal complaint that a fellow employee had subjected him to a campaign of racial harassment. Following an investigation, the alleged harasser was required to undertake further equality and diversity training.
The claimant then brought claims for race discrimination and racial harassment in the tribunal. In response, the employer sought to rely on the reasonable steps defence on the basis that, by providing equality and diversity training to the alleged harasser, the employer had taken all reasonable steps to prevent the discriminatory behaviour.
While the tribunal accepted that the respondent did indeed have an equality and diversity policy in place and that the alleged harasser had received equality and diversity training, it found that the training had gone ‘stale’.
The tribunal did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace. It found that the employer had failed to refresh or update the training and the racial harassment claim was therefore successful.
The employer appealed on the basis that the tribunal had relied on the fact that the training had ceased to be effective, rather than focussing on the legal test which they argued was whether all reasonable steps had been taken. However, the EAT explained that the effectiveness of the training was a relevant factor.
While the first element to consider is what steps have been taken by the employer to prevent the harassment (for example equality training), the next option is to consider whether any other reasonable steps should have been taken. Whether the first step (the training) was effective will be a factor in deciding whether further steps are reasonable. At that stage, the cost and practicality of taking the further steps are also relevant.
This decision is a reminder for employers that they will not be able to rely on the reasonable steps defence simply by having an equality and diversity policy in place and providing general and untailored training. The training must be suitable, relevant and up to date.
Successfully relying on the defence will depend on the individual circumstances. However, this case highlights that the steps employers take to prevent harassment need active thought and review.
Employers should look at their activities in this area as multi-layered and ensure that training is tailored for the role the individuals perform. As a starting point, organisations should ensure that all employees are aware of and understand any equality and diversity policies in place and have been provided with up to date and relevant training.
Employers should consider providing training to managers on their obligations to set the tone and to actively deal with potentially discriminatory treatment which they witness or are made aware of, regardless of whether a formal complaint is made.
Likewise, investigating allegations of harassment is complex and needs careful handling so employers should consider providing tailored training to those charged with investigating complaints of discriminatory treatment so that they understand the subtleties in this area.
We are of the view that the standard imposed by the reasonable steps defence for employers is not unattainable and should not be written off. However, to have a chance of succeeding with the defence, employers must consciously consider the steps they take across their organisation and actively challenge whether these are sufficient and effective.
Hannah Netherton and Gillian MacLellan are partners in the CMS employment team