The recent case of Allay (UK) Ltd v Gehlen has highlighted that employers cannot rely on the “reasonable steps” defence to protect them against any vicarious liability for the discriminatory acts of an employee, if their training on equality would be deemed to have become “stale”.
Allay (UK) Ltd v Gehlen
Mr Gehlen, who is of Indian descent, was dismissed in 2017, after which he made a complaint to his employer of racial harassment by one of his colleagues. This was investigated and the colleague undertook further equality and diversity training. Mr Gehlen brought claims against Allay (UK) Ltd in the ET for harassment and discrimination on grounds of race.
Allay tried to rely on the statutory defence of all reasonable steps were taken to prevent the colleague from acting in the manner in which they did, but the ET upheld the claim and Allay’s appeal was later dismissed by the EAT. It was found that whilst prior training was given two years earlier, it had become “stale” and a reasonable step would have been to conduct a refresher training before the events in question had taken place.
Reasonable steps defence
Under the Equality Act 2010, an employer can be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment. This is known as vicarious liability. Under the Act, an employer can use the statutory defence of reasonable steps were taken to prevent the actions of the employee to avoid liability.
What are reasonable steps?
This case is an important reminder to employers that they need to regularly refresh and update their training.
This should not be reserved for just new starters or viewed as a tick box exercise, but should be considered as a method of setting the tone and promoting a positive workplace culture. Attitudes, issues and language is constantly evolving and it is important that employers keep up.
Some employers might find that in-person training might be too expensive. A cost effective alternative could be online training for staff members. Acas offers free online training on a variety of employment issues. They also offer training courses for managers and anyone with special responsibilities, so they are up-to-date with the latest requirements.
It would be advisable to conduct at least yearly staff training on equality, diversity and whistleblowing. The training should also be refreshed at any point that it becomes clear that it has ceased to be effective (e.g. following a bullying incident).
The content of the training material is also important and employers should regularly review the quality and update the material. It should cover the basic legal principles, as well as providing relatable scenarios along with practical tips on how to handle these matters in the workplace.
There should also be a basis of gaining acknowledgement from staff that they have understood the aims and objectives of the training. This could be achieved by having staff members who have undergone the training to sign a confirmation of their understanding or take a test.
A mere demonstration that policies relating to matters such as equality are in place is not enough. These should be regularly assessed as to whether they are in line with the current laws and updated accordingly. There should be policies on equality, diversity, bullying and harassment.
How these policies are implemented is also important. An effective solution would be to designate a team or an individual (depending on the size of the organisation) to make sure all staff members are aware that these policies are in place and where to locate them. Once these policies are implemented there should be a requirement for each staff to give a signed indication they have read the policies and leave the door open for further discussions.
The designated team or individual should also regularly monitor the use of these policies within the workplace by utilising any complaints procedures and disciplinary actions.
If you have any questions about equality and diversity or assistance implementing/reviewing these policies in your workplace, contact our employment experts on 0808 252 5231 and we will be happy to help.
The author is this blog is Xania Scarlett, a legal assistant in the Employment Team.