A “relatively small” employer in the case of Allay (UK) Limited v Mr Gehlen has lost out on the chance to use a type of “get out of jail free card” in the form of the “reasonable steps defence” to a race harassment claim because its equal opportunities training provided to its employees was “stale”.
In this particular case, the Employment Tribunal had found that Mr Gehlen, who was a Senior Data Analyst, had been subjected to race harassment and his employer, the Respondent, had been ordered to pay compensation of £5,030.63 to him.
The race harassment had been carried out on a regular basis by one particular colleague, Mr Pearson, who had described the harassment as “racial banter”. The race harassment included comments to the effect that Mr Gehlen (who was of Indian origin) should “go and work in a corner shop” and references were made to Mr Gehlen “driving a Mercedes car like all Indians”.
“Reasonable steps defence” findings
The Respondent sought to rely on the “reasonable steps defence” set out in s. 109(4) Equality Act 2010, which involved arguing that it had taken “all reasonable steps” to prevent Mr Pearson from carrying out the race harassment of Mr Gehlen. The Employment Tribunal noted that:
- the Respondent had an equal opportunity policy and an anti-bullying and harassment procedure dating from February 2016; and
- Mr Pearson (and a managerial colleague to whom Mr Gehlen had reported the behaviour but who had not escalated the matter) underwent bullying and harassment training on 11 February 2015.
The Employment Tribunal found that, given that the above training had taken place in February 2015, “this was several years before the events in question and was clearly stale”. To put the dates in context, Mr Gehlen was employed from 3 October 2016 until his dismissal on 15 September 2017.
The Tribunal did not accept that the Respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training. This was upheld by the Employment Appeal Tribunal, although the EAT noted that the reference to the training having taken “several years” before the events in question was a “slight overstatement”.
It’s not just “relatively small” employers who struggle to avail themselves of the reasonable steps defence. Starbucks also failed in relation to successful claims brought by a dyslexic client of mine in the case of Kumulchew v Starbucks (2015). In that case, the District Manager, who was named as the Third Respondent and who was responsible for approximately 200 people, last received equal opportunities training in 2006 and had received no refresher training since. The Employment Tribunal hearing took place in September 2015, so it’s little wonder that the Tribunal found that “the Respondent’s witnesses displayed a surprising lack of knowledge and understanding about Equality issues.”
Not only is it important for employers to implement thorough equal opportunity and anti-harassment training, it is important for such training to be refreshed, we would suggest every year as a minimum.
What also matters is the quality of the training. The Employment Appeal Tribunal in Allay v Gehlen made an apt analogy with the covid-19 pandemic – the EAT stated that “we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last” and that a key consideration is not only “how effective” the training will be but also how long it will last. The EAT suggested that “thorough and forcefully presented training is more likely to be effective, and to last longer”. The EAT stated that “The less effective the training is, the more quickly it becomes stale”.