Reasonable Steps to Prevent Harassment in the Workplace

A recent finding in the Employment Appeal Tribunal (EAT) is a warning to all employers that equality and diversity training should and must be up to date.

The EAT found that the training in this particular case was “stale”.  It was found that training had taken place 20 months prior to the racial harassment and had been forgotten, it was also seen to be insubstantial. As no refresher course had been provided the expected defence of taking all reasonable steps to prevent harassment was found not to be applicable and the employer could not rely on section 109(4) of the Equality Act 2010.

(Allay (UK) Ltd v Gehlen UKEAT/0031/20 (4 February 2021).)

What this recent case does show is the detail the tribunal will look into when considering an employees’ case; the amount of training given, the frequency and the quality are all of concern to the tribunal in such cases.

Harassment in the Workplace

In this case the claimant said he was of ‘Indian origin’ and after just less than a year’s employment was dismissed for performance related issues, he then said he had been subjected to harassment because of his race by a fellow employee.

Although the person responsible for the harassment and three other employees (including two managers who had failed to report matters to HR when they were aware of it) had all been given equality and diversity training it was found to be out of date.  The perpetrator was ordered to undertake further training when an investigation was made.

The claim against A(UK) Ltd was of harassment and it was found that the company had not taken all reasonable steps to avoid discrimination.  The need for such training was evident in the remarks made and the fact that managers and other staff had not reported it.  The nature and effectiveness of the training given is brought into question here and the fact that the offending employee thought what he was doing was ‘banter’.  It was found that any benefits from the diversity training had long been forgotten and as such refresher courses are needed to remind a workforce of what is and what is not acceptable in the workforce.

Susan Mayall, Head of Employment Law at Pearson Solicitors in Oldham says:  “This case highlights the need to have up to date equality and diversity and anti-bullying and harassment policies and training in place, but simply having a policy in a staff handbook on its own does not ‘cut it’.

An email reminder to managers about these policies and the need for managers to be aware of them in their day to day working, would help.   Plus a reminder to staff about these policies is good practice.  Employees should be aware that if they feel they are affected by the issues in these policies they should inform their HR department or their line manager.

What must also be remembered by business owners is the need to go through these policies with all new starters as part of their induction.  At annual appraisals staff could be reminded about the different policies and where they are kept and a note made of this.”

Defending Against Discrimination Employment Claims with Staff Training

Ultimately what we see here is that the business owner/employer must always keep a keen eye on scheduled training, make sure it is up to date, all employees attend and that the benchmark is high if it is to establish a reasonable steps defence when accused of discrimination.

“As always the best approach would be some good annual training for all staff  with the aim that problems can be prevented before escalating to tribunal level,” adds Susan Mayall.

For advice on all aspects of employment law, if you have a workforce and need guidance on your duties as an employer or if you have been the victim of workplace bullying and harassment contact Susan Mayall on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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