When was the last time you refreshed your bullying and harassment training?
The answer to this may well be "some time ago" but the importance of ensuring that bullying and harassment training is kept up to date was highlighted in the recent case of Allay (UK) Limited v Gehlen ("Allay").
In Allay the Claimant had been dismissed on the grounds of poor performance. Mr Gehlen's position was that during his employment he was harassed on the grounds of race by a fellow employee and he accordingly raised a race harassment claim against his employer following his dismissal.
Under section 109 of the Equality Act 2010 (the "Act"), anything that is done by an employee in the course of their employment must be treated as also done by the employer. The caveat with this position however, is found in section 109(4) of the Act, which provides that an employer may defend themselves against an allegation towards an employee who was deemed to have been acting in the course of their employment, where the employer can demonstrate that they have taken "all reasonable steps" to prevent the employee from "doing that thing" that has been alleged (or from doing "anything of that description"). The section 109(4) defence is commonly argued in discrimination claims where the employer will look to demonstrate that all reasonable steps were taken to avoid the occurrence of discrimination.
Reasonable steps defence
In Allay the employer sought to rely upon the "reasonable steps defence". There was evidence that Mr Gehlen's colleague had made remarks to Mr Gehlen which would amount to harassment on the grounds of race. There was also evidence that the colleague who had made the comments and those who overheard the comments or had been told about them, had received training by the employer in race discrimination and how it should be avoided in the workplace and that this training covered harassment related to race. Nevertheless the Employment Tribunal declined to uphold the "reasonable steps" defence in circumstances where "the training which had been delivered was several years before the events in question and was clearly stale". The Employment Tribunal found that a reasonable step would have been for the employer to refresh the training.
The employer appealed to the Employment Appeal Tribunal ("EAT") which dismissed the appeal and ruled in favour of the employee, finding that the Tribunal had been entitled to conclude that "the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken".
In their decision, the EAT noted that when considering the reasonableness of the steps taken, the analysis will include considering "the extent to which the step (or steps) were likely to prevent harassment". The EAT stated that "brief and superficial training is unlikely to have a substantial effect in preventing harassment", and also that training of this nature is likely not to have long-lasting consequences. According to the EAT "it is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective".
Allay should act as a reminder to employers that the section 109(4) defence has its limitations, and that just because training and materials are in place, this doesn’t necessarily mean that they will form the basis for a successful "reasonable steps defence". The case highlights that employers should (1) take time to consider what will be appropriate and effective training and what associated materials should be in place, and (2) ensure that such training is refreshed and reviewed on a regular basis, together with the associated materials.
Get in touch
There are range of ways in which we can support you to prevent bullying and harassment occurring in the workplace and to put you in the best position to defend any claim should one be raised, this includes providing bullying and harassment training and/or reviewing your bullying and harassment policy. Please get in touch to discuss exactly how we can help you.
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