EAT on the reasonable steps defence
Tuesday 9th March 2021
The EAT in Allay (UK) Ltd v Gehlen, has held that having provided diversity training was not sufficient to establish that the employer had taken reasonable steps to prevent racial harassment, where such training was stale and clearly ineffective.
Following his dismissal in October 2017, Mr Gehlen complained that he had been subjected to racial harassment by another employee, Mr Pearson. An investigation established that Mr Pearson had made racist comments and he was told to participate in further equality and diversity training. Additionally, three other employees (including 2 managers) were aware of the harassment, but had failed to take any action.
Mr Gehlen brought several claims before the ET including for harassment. AUL argued that it had a statutory defence, having taken all reasonable steps to prevent such harassment, as employees received training that covered harassment and anti-bullying, along with equality and diversity training.
The ET found that AUL had not met the threshold to establish the “reasonable steps” defence. The training delivered in 2015, was “clearly stale” and a reasonable step would have been to provide refresher training which, given the failure of other individuals to follow the guidance given in that training, was clearly necessary. AUL appealed.
The EAT dismissed the appeal, holding that the effectiveness of any steps taken is relevant to determining what constitutes a “reasonable step”. Simply providing training is not sufficient, “consideration must be given to the nature of the training and the extent to which it is likely to be effective”. The EAT noted that the training and AUL’s policies did not appear to be of a high standard.
The ET’s conclusion that training was stale was not only based on Mr Pearson having made racist comments, but also on the fact he thought he was engaging in harmless banter. In addition, managers failing to act when becoming aware of or observing harassment was further evidence that the training was stale. Through their managers AUL was aware of the harassment and should have appreciated that more needed to be done. The EAT considered the ET was entitled to conclude that AUL could have taken further reasonable steps by way of refresher training, as they had in fact ordered Mr Pearson to undertake after Mr Gehlen complained.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.