What are reasonable steps to prevent workplace harassments?Mar 15, 2021
An employer who argued that it had taken ‘all reasonable steps’ to prevent harassment by providing training to its employees, failed on the basis that the training had become ‘stale’.
Mr Gehlen, who is of Indian origin, was employed by Allay as a Senior Data Analyst. His employment lasted from 3 October 2016 until his dismissal on 15 September 2017. Following this, Mr Gehlen said he had been subject to racial harassment by another employee during his employment. In light of the allegation, Allay carried out an investigation. This found that racial comments had been made but the employee deemed them to be ‘banter’.
Mr Gehlen proceeded to bring an Employment Tribunal claim for racial harassment, which was upheld by the Tribunal. The Tribunal also found that two of Mr Gehlen’s managers were aware of the racist comments. However, they failed to take any appropriate action.
Allay argued that it had taken all reasonable steps to prevent the harassment and therefore they should not be liable. The steps relied upon by Allay included:
● having in place an equal opportunity policy;
● having anti-bullying and harassment procedures; and
● providing training in equality and diversity and bullying and harassment to its employees in 2015/2016.
The Tribunal rejected Allay’s argument that it had taken all reasonable steps to prevent the harassment. This was on the basis that the training had become ‘stale’ . The acts of harassment had taken place after the training had been conducted. The two managers had then failed to take appropriate action once becoming aware of the racist comments. The training was also provided two years before the acts of harassment.
Allay appealed to the Employment Appeal Tribunal.
Employment Appeal Tribunal (‘EAT’)
Upon appeal, the EAT announced that the earlier Tribunal was right to conclude that the training was stale and no longer effective at preventing harrassment. The EAT said that there were further reasonable steps Alley should have taken, including retraining. However, the EAT acknowledged that the earlier Tribunal failed to recognise Allay’s policies and procedures that were in place. However, the EAT concluded that, regardless, they were not impressive, even for a small employer.
In light of the above, Allay’s appeal was dismissed.
For an employer to rely on the defence that it had taken all reasonable steps to prevent any harassment and/or discrimination, it must regularly review all of its policies and carry out regular training. It’s worth noting that the EAT emphasised that, in order for an employer to rely on this defence, the threshold is high and that it is not sufficient to have ‘brief and superficial training’.
Therefore, all policies and training should be to an appropriate level and up to date. In this case, the training was given two years before the acts of harassment. The Tribunal found that this length of time was inadequate. It’s likely, therefore, that Tribunals will expect training to be carried out on a yearly basis. This obviously depends on the size of the company.
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