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Constructive dismissal can constitute act of harassment under Equality Act 2010

Employment Matters e-update – July 2021

Overview

The Employment Appeal Tribunal (“EAT”) has recently upheld a decision that staff equality training had become stale after 20 months. The employer’s failure to update the training prevented the employer from relying on a “reasonable steps” in their defence of a race harassment claim.

Allay (UK) Ltd v Gehlen

Under section 109(4) of the Equality Act 2010 an employer can defend a claim that they are vicariously liable (and therefore responsible) for discriminatory actions of an employee, if it can be shown that the employer took all reasonable steps to prevent those actions.

In this case, the EAT reiterated that in order to rely on this defence, and employer must be able to show that it has taken all reasonable steps, and highlighted that this is a high threshold to meet.

The facts

Mr Gehlen is of Indian origin and worked for Allay (UK) Ltd (the Respondent) between October 2016 and September 2017. In August 2017, Mr Gehlen brought a complaint about another employee, who he alleged was regularly making racist remarks to, and about, him. The manager simply told Mr Gehlen to report the matter to HR, but did nothing further. Another manager had also overheard racist remarks being made and did not report the matter to HR.

Mr Gehlen was dismissed in September 2017 following performance concerns. He raised a formal complaint about the harassment. Allay investigated and found that the remarks had been made, and required the employee in question to undergo equality training.

Mr Gehlen brought a claim of harassment against the individual and Allay.

Allay sought to rely on the reasonable steps defence, pointing to the fact that it had equal opportunities and anti-bullying and harassment policies in place and had recently trained staff on these areas. The last training had taken place around 20 months before Mr Gehlen had started work and contained one slide on harassment. It also set out what employees should do if they overheard unacceptable remarks.

The Tribunal rejected Allay’s defence on the basis that the training had become stale and therefore was no longer effective. The tribunal considered that this was demonstrated by the fact that the remarks had been made at all, and because two managers had failed to react appropriately. All of this was contrary to the training they had received and demonstrated a clear need for it to be refreshed. The Tribunal found that it would have been a reasonable step for the Employer to deliver further equality training and this had not been done.

Allay appealed to the EAT, arguing that the statutory defence only required reasonable steps to be taken, and the effectiveness of those steps was not relevant.

The EAT upheld the Tribunal’s decision.

The judgment provided useful guidance on how the reasonable steps defence should be considered and evaluated by the Tribunals. The EAT said that Tribunals should begin by looking at what steps had already been taken, and then assess how effective those steps were likely to be at the time they were taken. In this case, the EAT noted that more detailed findings about the effectiveness of Allay’s internal policies and the earlier training should have been made.

A Tribunal should then move on to consider whether it would have been reasonable for the employer to have taken further steps, and when doing so, should consider when the existing steps ceased to be effective, and the cost and practicality of taking further steps.

The EAT also highlighted that the length and depth of the training is important. It was made clear that “brief and superficial” training is unlikely to have a substantial effect in preventing harassment or have long lasting consequences. By contrast, “thoughtful and forcefully presented” training is more likely to be effective, and last longer.

This case serves as a reminder of the importance of making sure that training is kept up to date, and refresher sessions offered regularly. In addition, employers should expect Tribunals to scrutinise the content of policies and training much more closely in future in order to assess their quality and effectiveness, and therefore up to date, meaningful and detailed policies are essential.

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