Timed out – reasonable steps defence fails because training stable
An employer can defend a discrimination claim under the Equality Act if it has taken all reasonable steps to prevent employees from committing acts of discrimination or harassment. What amounts to “all reasonable steps” will depend on the facts of each case, but will normally include having an equal opportunities policy which covers harassment, training employees on that policy and responding appropriately to complaints. However, as the decision in Allay (UK) Ltd v Gehlen shows, the defence will not succeed if there were other steps that the employer could reasonably have taken.
After an employee was dismissed on performance grounds he complained that he had been subjected to racial harassment. The employer investigated and concluded that a fellow employee had made racist remarks. In the employee’s subsequent discrimination claim, the tribunal also found that two managers were aware of the comments but had done nothing to prevent them, either by reporting the matter to HR or by taking action against the employee. The employer was liable for the harassment and could not rely on the “reasonable steps” defence. Although the employees and managers had received discrimination training, it was several years old and “clearly stale”. The employer’s failure to update the training meant it had not taken all reasonable steps to prevent the harassment.
The EAT dismissed the employer’s appeal. A tribunal had to ask three questions when considering the reasonable steps defence.
- What steps has the employer taken?
- Are those steps reasonable?
- Are there any other steps that should reasonably have been taken?
Considering how effective the steps were likely to be in preventing harassment was part of deciding whether they were reasonable. Brief and superficial training was unlikely to be effective or have a long lasting effect on staff behaviour. By contrast, thorough and forceful training was more likely to be effective and could be expected to last longer.
In this case the tribunal decided that the discrimination training was stale by the time of the events in question. The evidence supported that conclusion. Not only had racial harassment occurred on more than one occasion, but managers had taken no action when they became aware of it. That indicated that it would have been a reasonable step to refresh training that was stale and no longer effective.
On the basis of sex – Select Committee report into economic impact of coronavirus
The Women and Equalities Select Committee launched an inquiry into the impact of Covid-19 on people with protected characteristics in March 2020. On 9 February this year the Committee published a report on the economic impact of the pandemic on women in particular.
Much of the report focuses on the effect of government policies such as the Coronavirus Job Retention Scheme and the need for investment in childcare and changes to social security policy. However, the report also calls for government action that will affect employers. The key recommendations include:
- Publishing a draft Employment Bill by the end of June 2021, including provision for carers’ leave and neonatal leave, and proposals for ethnicity and disability pay gap reporting within the next six months;
- Making the right to request flexible working a day one right;
- Introducing the promised additional protection against redundancy for employees who are pregnant or who have recently returned to work from maternity or adoption leave;
- Requiring employers to publish gender pay gap information for 2019/20 (reporting last year’s figures was suspended because of coronavirus) and 2020/21 by April 2021, and introducing an obligation to publish information about parental leave policies and gender gaps for employees who have been made redundant or put on furlough; and
- Amending the HR1 form employers have to submit in collective redundancy situations to include details about the sex, race and other protected characteristics of staff.