Harassment is defined as unwanted conduct related to a relevant protected characteristic (such as disability, race, sex, etc) which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. However, employers can rely on the ‘reasonable steps’ defence if they can show they took all reasonable steps to prevent the employee from either committing a particular discriminatory act, or committing such acts in general.
Mr Gehlen, who describes himself as being of Indian origin, was dismissed by Allay (UK) Ltd for performance-related reasons. He subsequently complained he had been subjected to racial harassment. An investigation established that an employee had made racist comments and he was required to undertake further equality and diversity training.
Mr Gehlen subsequently brought race discrimination and harassment claims, and Allay sought to rely on the ‘reasonable steps’ defence. The Tribunal found that Allay had not taken all reasonable steps to avoid discrimination; a reasonable step would have been to provide refresher training.
The EAT dismissed Allay’s appeal. It concluded that, in relation to the reasonableness of the steps the employer had taken, consideration must be given to the nature of the training and the extent to which it was likely to be effective.
There was sufficient evidence for the Tribunal to conclude that whatever training there had been, it was no longer effective, given both that the employee thought what he had said was just ‘banter’ and that managers did not know what to do when they observed harassment or when it was reported to them.
In considering the reasonableness of the steps an employer has taken, it is not sufficient merely that there has been training – consideration must be given to the nature of the training and the extent to which it was likely to be effective. This decision has significant implications for employers if they do not regularly update their equality and diversity training or if they approach it as a tick box exercise.
For further details about this decision, see our update:
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