When faced with a claim for discrimination or harassment, employers may be able to defend themselves against claims of vicarious liability for acts of an employee if they can show that they took all reasonable steps to prevent the employee from acting in that way.
Just what steps are 'reasonable' is left for the Courts and Tribunals to decide. Starting with the basics, it will involve setting standards and telling employees what discrimination is, that they must not do it, and that it will be taken seriously if it does. This is most often done through written policies – for example, equal opportunities, inclusion and diversity and anti-harassment and bullying. These need to be supported by training, recommended by the EHRC as the best way to put an equal opportunities policy into practice.
However, as 'Allay v Gehlen' shows, policies and training are only useful if they are fit for purpose and meaningful. In this case, Mr Gehlen was subjected to racist comments on a regular basis (once a month), which Mr P, the man responsible, described as “racial banter”.
In a claim for harassment related to race, the employer relied on the 'reasonable steps' defence. Naturally, the employer’s policies and training came under scrutiny, and it is easy to imagine how uncomfortable the cross examination must have been as the case unfolded.
The EAT said that the employer could not rely on the 'reasonable steps' defence, and the level of scrutiny and the criticisms made by the EAT in reaching this conclusion are interesting.
The employer had an equal opportunity policy and an anti-bullying and harassment procedure in place, and the employees involved had all received, in 2015, equality and diversity training and also bullying and harassment training. The EAT said that the training, given over a year before the harassment, had become stale and patently needed to be refreshed.
It said that the training obviously hadn’t worked as Mr P went on to make racist comments, and those who heard them mishandled them, failing to take them sufficiently seriously or to escalate them appropriately. The EAT said: “If training involved no more than gathering employees together and saying 'here is your harassment training, don't harass people, now everyone back to work', it is unlikely to be effective, or to last.”
The EAT went through the employer’s documents, and noted that the equal opportunities policy did not make any reference to harassment, the anti-bullying and harassment procedure only referred to harassment in the title; and made no mention of race and that the section on harassment in the accompanying PowerPoint presentation contained no reference to race or racial stereotypes.
Certainly, this case provides a good reminder that it is important that policies and training should not be a one-time-only, tick-box affair. They should be reviewed (ideally once a year) to make sure they reflect any updates both in the law and in best practice, and also identify and tackle any concerning behaviour.
More importantly, they should be 'live' documents, in the sense that training should be carried out and refreshed regularly, as part of the employer’s commitment to continual and meaningful efforts. The examples and case studies used should make sense to, and speak directly to, the particular workforce. Any sense that the messages are not being understood or acted on, should be addressed promptly and effectively, and everyone should be empowered to understand their role in this.
Of course, ideally, policies and training are not about defending yourself when things go wrong, but trying to make sure that they don’t. If done the right way, training can provide employers with the opportunity to bring employees together, to open up constructive dialogue about potentially difficult issues and to showcase and build on the organisation’s core values and shared mission.
Now more than ever is the perfect time for effective training, with many workforces working disparately and amidst the disruption and insecurity caused by the pandemic. Imaginative, interactive and inclusive training, tailored to the business and its workforce, is one way to bring people together, and can be part of larger efforts not only to reduce legal exposure but, more positively, to enforce a culture of respect and belonging, a building block of organisational resilience. 'Allay v Gehlen' shows us the training needs to be thorough and forcefully presented, not brief and superficial.
Esther Langdon is an employment lawyer at international law firm Vedder Price
