Diversity and inclusion: going beyond policy and putting it into practice
The recent case of Allay (UK) Ltd v Gehlen resulted in the EAT upholding a decision that staff equality training had become stale after 20 months. The employers failure to refresh the training meant it couldn’t rely on the “reasonable steps” defence to a race harassment case.
This case serves as an important reminder that employers need to approach issues relating to equal opportunities and discrimination with diligence and rigour. Delivering training on these issues to staff is advised, but it will not be enough if employers simply treat that as a box ticking exercise. Thought needs to be given to the quality and frequency of that training.
Legal background
The Equality Act 2010 (“EqA”) provides legal protection for employees in respect of unlawful discrimination and harassment on the grounds of any protected characteristic, which include race. Under the EqA, an employer will be liable for any breach of the EqA committed by any of its employees if that breach occurred during the course of employment, regardless of whether the employer had knowledge of, or approved, the breach.
The EqA does, however, provide a defence for an employer who would otherwise be vicariously liable for the acts of one of its employees, if the employer can show that it took all reasonable steps to prevent the employee in question from doing that act or doing anything of that kind.
Historically, this defence has proved notoriously difficult for an employer to successfully argue. In reaching a decision on whether the seemingly high threshold to establish this defence has been met, an Employment Tribunal will consider many factors, including but not limited to:
Whether the employer had a comprehensive written equal opportunities policy and training was provided in relation to that;
Whether the employer had previously taken any disciplinary action where discrimination had occurred;
How effective the steps taken by the employer were likely to be at the time that they were taken; and
How effective those steps proved to be in practice.
Facts of the case
Mr Gehlen (a gentleman of Indian origin) was employed as a Senior Analyst at Allay (UK) Ltd between 3rd October 2016 and 15th September 2017, when his employment was terminated on grounds of poor performance. Following his dismissal, Mr Gehlen submitted a complaint to his former employer, stating that he had been subject to harassment on the grounds of his race by one of his peers, Mr Pearson. Allay (UK) Ltd carried out an investigation into the complaint and found that Mr Pearson had indeed made racist comments on a regular basis about Mr Gehlen. For example, comments had been made to the effect that Mr Gehlen should work in a corner shop, that he drove a Mercedes “like all Indians” and that he had been asked why he was in the country. As a result, they ordered that Mr Pearson undertake further training on equality and diversity.
Mr Gehlen brought claims in the Employment Tribunal for harassment and discrimination on grounds of race.
During the evidence in the Employment Tribunal, it was found that Mr Gehlen had reported the racist remarks to a manager, but that the matter had not then been reported or taken any further by that manager. It was also found that two of Mr Gehlen’s peers had overheard some of the comments being made but took no positive action to address or report those.
Decision
As part of its defence to Mr Gehlen’s claims, Allay (UK) Ltd sought to argue that it had taken all reasonable steps to prevent the harassment by having in place equal opportunities and anti-bullying policies and had provided relevant training to Mr Pearson, as well as to other employees, back in 2015.
The Employment Tribunal ruled that Mr Gehlen had been subjected to harassment related to race. They rejected the employer’s defence on the basis that the training that had been delivered to employees took place more than a year before the harassment took place and that it was clear this had been forgotten because of the racist remarks made by Mr Pearson and the failure of other peers to report those matters. The Employment Tribunal held that the training had become “stale” and that refreshing that training would have been a reasonable step for the employer to take in the circumstances. In fact, Allay (UK) Ltd had provided Mr Pearson with refresher training after finding out about the comments that had been made, which the Employment Tribunal found supported their assertion that in the employer’s mind, that would have been an effective step to take.
Allay (UK) Ltd appealed against the decision to the Employment Appeal Tribunal, which was subsequently dismissed. The Employment Appeal Tribunal agreed with the Employment Tribunal, noting that the defence in the EqA is designed to encourage employers to take significant and effective action to combat discrimination and that it is necessary to consider the nature and likely effectiveness of any training that is delivered, as well as whether that has been understood and taken on board by employees. In particular, the Employment Appeal Tribunal noted that:
The policies in place did not refer to harassment in any detail and made no mention of race;
The training PowerPoint slides made no reference to race or racial stereotypes;
Generally, the policies and training were not very impressive even for a relatively small company; and
The training that had been undertaken had demonstrably faded from Mr Pearson’s memory and that of his peers in light of their conduct.
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