The recent EAT decision in Allay (UK) Limited v Gehlen gives employers useful and important guidance on the use of the “reasonable steps” defence in discrimination claims, specifically in the context of equality and diversity training. Such training needs to be effective and up to date if employers wish to be able to rely on it to defend claims.
The Claimant was dismissed for performance-related reasons but complained that he had been subjected to racial harassment. An investigation found that a colleague had made racist comments against him and that colleague was ordered to undertake further equality and diversity training.
The employer sought to rely on the “reasonable steps” defence under s.109(4) of the Equality Act 2010. This gives employers a defence if it can show that it took “all reasonable steps” to prevent employees from either committing a particular discriminatory act or committing such acts in general. The Employment Tribunal rejected this defence finding that, whilst employees had received training that covered racial harassment, this training was “clearly stale” as it had been delivered several years before the events in question took place. A reasonable step would have been to provide refresher training.
The EAT agreed, saying, “It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective.”
Employers will not be able to rely on the reasonable steps defence where their equality and diversity training is generic, unsuitable or out of date. Careful thought should be given to the effectiveness of such training – including not only consideration of its regularity and scope but also ensuring that it is tailored to different levels within the organisation and that it deals thoroughly with tricky and often complex areas, for example, effective investigations into discriminatory acts.
However, employers need to go further than just providing effective training and will need to ensure that their equality policies and procedures are clearly drafted and are carefully implemented. The EAT noted in this case that the equal opportunities policy did not make any reference to harassment and the anti-bullying and harassment procedure only referred to harassment in the title and made no mention of race.