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Can an employer rely on equality and diversity training to defend a claim of harassment?

This was considered in the recent Employment Appeal Tribunal (EAT) decision in Allay (UK) Ltd v Galen.

Background

Mr Gehlen, alleged that he was subject to harassment related to his race by a fellow employee, Mr Pearson. Following an investigation, Mr Pearson was found to have made racist comments and was ordered to undertake further equality and diversity training.

The Claimant brought a claim in the Employment Tribunal for harassment related to race.

The Employment Tribunal Decision

The Tribunal found that Mr Pearson regularly made racial comments to Mr Gehlen including that he should work in a corner shop, he had brown skin, he drove a Mercedes car like all Indians and was asked why he was in the country. The Respondent relied upon the “reasonable steps” defence. An employer can argue that it took “all reasonable steps” to prevent employees from committing discriminatory acts. The Respondent relied on the fact that it had an equal opportunities policy and an anti-bullying and harassment procedure. Further, Mr Pearson had received equality and diversity training in January 2015 and bullying and harassment training in February 2015. The Employment Tribunal rejected the Respondent’s attempt to rely on this defence. Although it was accepted that employees had received training that covered harassment related to race, this training was “stale” and ineffective; it had been provided in 2015 and a reasonable employer would have provided refresher training.

The Employment Appeal Tribunal

The Respondent appealed. The EAT dismissed the Respondent’s appeal, the EAT held that the starting point when considering the “reasonable steps” defence is to consider whether the employer took any steps to prevent the harassment or discrimination occurring. It is important to consider the nature and the extent to which those steps are likely to be effective. The EAT also considered whether there were any other reasonable steps that the Respondent should have taken. The likelihood of such steps being effective was a factor in determining whether such further steps were reasonable.

The EAT concluded that the training the Respondent’s employees had received was no longer effective to prevent harassment. There were further steps by way of refresher training that should have been taken. As a result, the Respondent was unable to rely on the “reasonable steps” defence.

Practical Steps

This case highlights the importance of ensuring that employers have in place equality and diversity procedures and equality and diversity training. In addition, the policies, procedures and training should be regularly reviewed and updated.

If you have any questions or would like any advice in relation to policies and training, please contact Sejal Raja.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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