Dere Street’s Pupil Deck

This week’s blog is brought to you by Laura Doherty – pupil to Sam Healy 

Allay (UK) Ltd v Gehlen UKEAT/0031/20

The recent EAT case stresses the importance on companies to regularly review policies and to keep training provided to staff up to date. The existence of policies such as Equality and Diversity are simply put, not enough.

Background

Mr Gehlen was subjected to racial harassment by a fellow employee. An internal investigation by the employer found that the colleague had made racist comments to Mr Gehlen. Subsequently, a claim was brough for direct race discrimination and harassment related to race. The tribunal upheld the complaint of harassment related to race.

In the first instance the defence that Allay (Ltd) UK had taken all reasonable steps to prevent harassment was rejected (Section 109(4) Equality Act 2010). The Appellants submitted that as they had an equal opportunity policy and an anti-bulling and harassment procedure in place and that this was sufficient to protect their employees.

The tribunal rejected this defence as although it confirmed that training had ‘at some point’ taken place, there was clear need for re-fresher training. Both colleagues and senior members of staff were aware of the comments made to Mr Gehlen after the training had taken place and therefore it was deemed that the Appellants had failed to properly react despite being aware of the comments. In essence, the training provided had become ‘stale’.

Leave for appeal was granted on the basis that the court of first instance had failed to properly engage with the Appellants defence.

Decision

The EAT referred to the decision in Canniffe v East Riding of Yorkshire Council [2000] UKEAT/1035/98 where it was identified that the correct approach to be adopted by employers when determining what is considered reasonable is to consider what preventative steps should have been taken and the to consider what additional further steps could have been taken that were reasonably practicable.

Some of the factors that should be taken into consideration are:

• Cost
• Practicality
• Whether or not the steps will be effective in preventing discrimination

HHJ Tayler states at paragraph 52 of the Judgment ‘If an employer wishes to rely on the section 109(4) defence by contending that although further steps could have been taken, they were not reasonably required because they would have been bound, or very likely, to be ineffective; the burden would rest on the employer to establish that was the case, as the burden in establishing the defence rests firmly on the employer.’

Therefore, if there is a further step that could have been taken then the defence that the employer took all reasonable steps will fail. The EAT re-enforced that the threshold for the defence of reasonable steps is an extremely high one.