08 February 2021
We are taking a break from Covid and furlough-related issues to look at an important Employment Appeal Tribunal (EAT) decision on harassment (though the EAT does manage to refer to coronavirus in its decision).
Employers will be aware that a key aspect of the Equality Act is that where one employee subjects another to discrimination or harassment, the employer is liable for that treatment and could be required to compensate the victim. That applies even if the employer was not aware of the treatment and would never have condoned it. Remember also, that there is no upper limit on the potential award of compensation for discrimination.
The only potential defence to being held liable is for the employer to show that it took “all reasonable steps” to prevent such conduct taking place in the workplace.
We have always advised clients that this requires employers to, as a minimum:
Have a comprehensive Equal Opportunities Policy in place, which deals with harassment and other discriminatory behaviour
- Provide training to staff on equal opportunities issues
- Set a good example
- Take complaints about discriminatory conduct seriously
Our key message has been that it is not enough to issue a policy and for everyone to stick it in a drawer. That will never satisfy the statutory test. “Live it, not laminate it” must be the approach. The employer should take ongoing steps to ensure that there is awareness of these issues and to reinforce the importance of avoiding discrimination. The policy should be publicised regularly, and training should be updated as appropriate.
In assessing the statutory defence, an employment tribunal must consider
- What steps did the employer take, and were they reasonable
- What other steps could reasonably have been taken?
A key part of the definition is that the employer must take “all reasonable steps” not just “some”. It will not assist an employer to argue that the additional steps would not have prevented the harassment in a particular case, if there were steps that should reasonably have been taken.
The EAT in Allay (UK) Ltd v Gehlen upheld an employment tribunal decision that equal opportunities training had become “stale” and that this prevented the employer relying on the statutory defence. All staff had been given equal opportunities training in February 2015 and a new policy document was introduced in February 2016. The training and policy were described by the EAT as “not impressive”.
The Claimant was subject to racial harassment, between October 2016 and September 2017, from a colleague who had attended the training session.. Two members of management (who had also attended the training) were aware of at least some of this racial harassment, and yet they took no action. The employers’ defence that they had taken all reasonable steps to prevent harassment failed.
The EAT agreed that an employer needs to consider (as with a coronavirus vaccine) how effective the training will be and how long the effect will last. Here, the employer did, or should, have known that the training had become stale, as employees were acting in a harassing manner and managers were failing to deal with it. It would have been reasonable to refresh the equal opportunities training. The February 2015 training had become stale and ineffective. The failure to refresh the training meant the employer was liable for the harassment.
This decision is an important reminder for employers of the need to ensure, on an ongoing basis, that “all reasonable steps” are taken to prevent employees committing acts of discrimination. Training, and/or policy documents which are of poor quality and limited effect, may well not satisfy the requirement, and equally the employer will be unable to use the statutory defence if training has become stale.
Key takeaways
It is not possible to set a fixed rule for all workplaces in terms of how often equal opportunities training should take place (for example, every 12 months) as this will vary from employer to employer, but regular training is important. Also, the quality of the training is a relevant factor. Certainly, if the employer is aware of allegations of discriminatory conduct taking place, this may serve as an alarm bell that updated training is required. Equally important is the need for a comprehensive policy, and to keep publicising the importance of complying with it.
Allegations of discriminatory conduct should be treated sensitively, and appropriate penalties should be imposed on those found to have breached the policy. It is particularly important that the company and its managers set a good example on equality issues.
BTO’s expert Employment Law team can provide equalities training materials for you to share with your staff, or deliver training direct to your staff. Contact us for a discussion.
This update contains general information only and does not constitute legal or other professional advice.
Employment law:
Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271