‘Stale’ training could prevent relying on the ‘reasonable steps’ defence

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In the recent case Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) ruled that an employer’s race discrimination training was ‘stale’ and the employer could have taken further steps by refresher training to prevent racial harassment in the workplace. The employer, unable to rely on the ‘reasonable steps’ defence, was liable for the unlawful discriminatory actions of an employee.

The Claimant, Mr Gehlen, commenced employment with the Respondent, Allay (UK) Limited, in 2016 as a Senior Data Analyst. In September 2017 the Claimant was dismissed with immediate effect for poor performance. After being dismissed the Claimant raised a complaint that he had been subject to racial harassment by another employee, P, throughout his employment. The Claimant described himself as being of Indian origin.

An investigation was carried out and it materialised that P had made racial comments towards the Claimant and P was ordered to undergo further Equality and Diversity training. The Claimant brought claims against the Respondent, including one of (racial) harassment, for the discriminatory behaviour of P. The Respondent tried to rely on the ‘reasonable steps’ defence under s.109 (4) of Equality Act 2010, which provides a defence if the Respondent can demonstrate that they took all reasonable to prevent the employee from “doing that thing” or from “doing anything of that description.”

The tribunal held that whilst P had undergone Equality and Diversity training in the past (that covered racial harassment), it was carried out in 2015 and the training would now be ‘stale.’

The tribunal established that the Respondent had not taken ‘all reasonable steps’ to avoid discrimination in the workplace and should have offered employees additional training. The tribunal awarded the Claimant the total sum of £5,030.63 as compensation for harassment related to race.

The Respondent appealed the decision on the grounds that it was immaterial how effective the training had been. The EAT dismissed the appeal and stated that in considering the reasonable steps of the Respondent, the EAT was entitled to take into consideration the nature of the training and the likelihood of its effectiveness to determine whether or not further steps should have been taken.

The EAT concluded that since P thought that the racial comments were ‘banter’ and a number of other employees, including two managers, failed to report the matter to HR, the training offered to employees was clearly no longer effective. The EAT further concluded that additional refresher training would likely have been successful in preventing racial harassment.

The Respondent was not allowed to rely on the defence of ‘reasonable steps’ and was liable for the unlawful discriminatory actions of P.

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