Employment Law Case Update: All Reasonable Steps Defence

In Employment Law, it is not enough to simply supply training or policies for your employees; you must ensure you go one step further and ensure they are up to date and training is refreshed on a regular basis.  Our Employment Law team today reviews a case in which this was not done; a decision which landed the company in the Employment Tribunal and the Employment Appeal Tribunal, which had to consider whether the "all reasonable steps" defence applied to a claim for race-based harassment.

In the case of Allay (UK) Limited v Mr S Gehlen 2020, Mr Gehlen worked for Allay Ltd from October 2016 until his dismissal in September 2017. Following his dismissal, Mr Gehlen raised a complaint stating that he had been subjected to race-based harassment by another employee. Mr Gehlen had reported the racist remarks to a manager before his dismissal, but the manager had told Mr Gehlen to speak to HR, and did not take further action. At least two other employees also overheard racist remarks being made about Mr Gehlen but did not take appropriate steps to address them.

Mr Gehlen then brought a claim in the Employment Tribunal for harassment related to race.

The company tried to defend against Mr Gehlen’s claim by stating that “all reasonable steps” had been taken to prevent harassment in the workplace. It had an equal opportunities policy and anti-bullying and harassment procedure, both dated February 2016. The company had also provided equality and diversity and anti-bullying and harassment training to their employees in early 2015.

The ET rejected the company’s defence, holding that the training provided by the employer was “clearly stale” and that “a reasonable step would have been to refresh that training.” The ET upheld Mr Gehlen’s complaint of harassment based on race and ordered the company to pay £5000 to Mr Gehlen.

The company appealed to the Employment Appeal Tribunal. The EAT reasoned that the effectiveness of the training and policies was relevant to the question of whether or not the company had taken all reasonable steps.

The EAT noted that the equal opportunities policy did not reference harassment and the anti-harassment and bullying policy did not actually discuss harassment or race. The fact that an employee had made racist remarks and that other employees had failed to report his behaviour may also have indicated that the training provided was of poor quality. It at least should have indicated that more needed to be done to prevent harassment. The ET therefore had been entitled to find that the training was no longer effective and that the company had not taken all reasonable steps to prevent harassment. The company’s defence was not made out and the appeal was rejected.

This case demonstrates the difficulty employers may face when using the “all reasonable steps” defence against a harassment claim. Simply having anti-bullying and harassment training and a policy may not enough for the defence to be made out.

Employers should ensure they have comprehensive anti-bullying and harassment and equal opportunities policies and that all employees are aware of and can easily access them. These policies should clearly indicate a course of action if an employee experiences or witnesses harassment and how managers are expected to deal with complaints. Finally, employers should ensure that any initial anti-bullying and harassment training is effective and that it is updated regularly.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.