With growing reports of an increase in online harassment during government-imposed pandemic lockdowns, a recent UK Employment Appeal Tribunal case alerts employers to their obligations with respect to tackling bullying, discrimination, and harassment in the workplace. In particular, it focuses on the need to review and refresh relevant training and policies frequently.

Upholding the decision of the first instance Employment Tribunal, the Employment Appeal Tribunal (EAT) in Allay (UK) Ltd v Mr S Gehlen UKEAT/0031/20 (Allay v Gehlen) found that the employer could not successfully defend a claim relating to the discriminatory actions of its employees where it had failed to prevent relevant staff training becoming “stale” and ineffective.

EMPLOYERS’ LIABILITY FOR ACTS OF EMPLOYEES

Employers can be held liable for harassment committed by their employees under Section 109(1) of the Equality Act 2010 (EqA). It is irrelevant whether the employer was aware of or approved of the conduct of the employee in question. In Allay v Gehlen, the claimant, Mr. Gehlen, who described himself as being “of Indian origin,” brought a complaint that he had been subjected to harassment on the grounds of race by a colleague during the course of his employment. The question considered by the EAT was not whether the harassment had taken place (this was clearly established) but instead whether the employer could avoid liability for the harassment conducted by one of its employees by satisfying the applicable statutory defence. Section 109(4) EqA provides a defence for an employer where it can show that it took all reasonable steps to prevent the employee(s) in question from doing the act(s) alleged to have taken place in the course of their employment, also known as the “all reasonable steps” defence.

ALL REASONABLE STEPS

In the event that an employer seeks to rely on the “all reasonable steps” defence, the burden of proof lies with the employer to show that it took all reasonable steps to prevent the relevant employee(s) from committing the acts in question. In its judgment, the EAT emphasised the word “all” and indicated that this means there is a high threshold for the employer to overcome if it is to successfully demonstrate that all reasonable steps were taken.

It is not enough for an employer to show that it merely has relevant policies in place and provides equality and diversity training to its employees from time to time. Instead, the employer must demonstrate that it provided its employees with effective materials to prevent discrimination, bullying, and harassment in the workplace, and that it subsequently took any necessary steps to make sure that the training remained impactful. It is evident that, in order to ensure they are taking all reasonable steps, employers should consider both the quantity and the quality of the training they provide to their employees.

REFRESH STALE POLICIES AND TRAINING

In particular, the EAT found that employers have an ongoing duty to review and refresh training aimed at preventing discrimination, bullying, and harassment so that the training does not become stale. In Allay v Gehlen, the employer’s equal opportunities policy and antiharassment procedure dated from February 2016. The employee who subjected the claimant to harassment, and a manager to whom the claimant reported the racist remarks but who failed to take any further action, had both undergone bullying and harassment training and equality and diversity training in early 2015. Nevertheless, the EAT agreed with the first instance Employment Tribunal that these employees’ subsequent actions demonstrated that the training provided by the employer was “stale and was no longer effective to prevent harassment.” There was clear evidence that further training was needed and this should reasonably have been provided by the employer.

Employers should therefore make sure that training is provided to employees on a regular basis. Moreover, an employer must ensure that the policies and training that it provides are effective in the first instance. Training aimed at preventing harassment and discrimination should be substantive and long-lasting. In Allay v Gehlen, after the employer had investigated and found that racist comments had been made by one its employees, it provided that employee with further equality and diversity training. However, the EAT saw the fact that the employer provided the employee with further training at that stage as evidence that the employer considered the original training to be ineffective. The employer’s equal opportunities policy made no reference to harassment. There was a similar omission in its anti-bullying and harassment policy, which only mentioned harassment in its title, and made no reference to race. The EAT stated that training provided by employers should have “a substantial effect in preventing harassment” and that “the less effective training is, the more quickly it becomes stale.” It is important that employers review the training they offer to make it as effective as possible.

As a result of the employer’s failures in Allay v Gehlen above, the EAT held that the employer was unable to rely on the “all reasonable steps” defence. If an employer fails to provide effective and long-lasting training to its employees, it is likely to be held liable for acts of harassment and discrimination carried out by its employees in the workplace. It is incumbent on employers to review and refresh their equality and diversity training to prevent discrimination and harassment from taking place. While the size of an employer may be taken into account in terms of the extent of the training it is expected to put in place, every employer is expected to take reasonable steps to prevent harassment among its workforce.

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