equality diversity

Most employers we work with will have policies on equality and diversity or equal opportunities and on how bullying and harassment should be handled. However, as a recent case has highlighted, this is far from a ‘tick box’ exercise and policies alone are not enough.

Aside from having equality and diversity policies in place, many employers also arrange training for their managers. Quite apart from doing so being a good thing to do from an HR and employee relations perspective, the steps an employer takes around these areas can be very important if they later face a claim of harassment from one of their employees.

A recent case highlighted how simply having policies or having at some point provided training is not enough and the burden placed on an employer is far higher than you might think.

How is this relevant to your business?

The Equality Act 2010 sets out various claims for harassment against the established protected characteristics (including for example, age, sex, race and disability). An aggrieved employee will often bring that claim against one of their colleagues. However, under the Act, an employer can also be made liable for harassment carried out by one of its employees.

“Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.”  Equality Act 2010.

An employer can defend itself against such a claim if it can show that it “took all reasonable steps to prevent A: (a) from doing that thing, or (b) from doing anything of that description.”

What happened in the recent equality and diversity claims case?

In the case of Allay (UK) Limited v Gehlen, the tribunal had to consider whether the business could rely on the ‘reasonable steps’ defence in circumstances where it had relevant policies and had provided training on them to the perpetrator of the harassment and other employees.

Mr Gehlen had brought a claim for harassment on the grounds of his race. He describes himself as being “of Indian origin” and alleged he had been harassed by a fellow employee, Mr Pearson.

An internal investigation was conducted during which Mr Pearson admitted he had engaged in what he called “racial banter” with Mr Gehlen.

The tribunal found that Mr Pearson had made regular comments to Mr Gehlen through his employment about Mr Gehlen’s racial origin. It also found that three other managers were aware of these comments being made and that save for a relatively relaxed conversation with Mr Pearson, nothing was done.

The tribunal found that the employer had both an equal opportunity policy and an anti-bullying and harassment procedure dating from February 2016 and that Mr Pearson (and one of the other managers) had received equality and diversity training on 15 January 2015 and bullying and harassment training on 11 February 2015. The events in question took place in 2016/2017.

The tribunal rejected the employer’s defence: it said the training had been delivered “several years” before the events in question and was “clearly stale”. It said it would have been a reasonable step to refresh the training and therefore the defence was not made out.

The employer appealed on a point of law in relation to the tribunal’s consideration of the defence but failed. The tribunal could have given more detail in its judgment but it had not erred in its approach to the law or reached a determination that was perverse.

What should we take away from the tribunal’s decision?

If you want to argue the ‘reasonable steps’ defence, the burden will lie with you for making it out. The tribunal will take a two-stage approach to assessing your ability to rely on the defence:

  1. Did you take any steps at all to prevent the employee from doing the act or acts complained of?
  2. Were there any further acts, that you could have taken, which were reasonably practicable?

In assessing reasonableness, a tribunal will consider effectiveness, cost and practicality. Whether or not the steps taken would in fact have been successful in preventing the acts of discrimination is not the sole criterion in assessing reasonableness, so:

  • You will not be liable if you take steps which are reasonably practicable but which are ultimately unsuccessful in preventing the acts complained of;
  • Equally, however, you will not be off the hook if you do not take steps which would have been reasonably practicable because you thought they would not have been successful.

Above all, it is critical to remember that the requirement to take “all reasonable steps” is a very high threshold.

What should you be doing practically to address equality and diversity claims?

The key to the defence is being able to demonstrate that you have taken significant and effective action to combat discrimination.

With that in mind, you might want to ask yourself some questions about your own practices:

  • When did you last review and update any bullying and equal opportunity policies?
  • What happens to these policies when they have been updated? Do you say anything to your employees about them?
  • When did you last offer any training within your workplace on equality and diversity or equal opportunities? Was it only for managers or across the workforce? Note that in Gehlen, the interval between the training being completed and the acts in question was 20 months.
  • How do you assess the effectiveness of any training provided?
  • What’s the content of any training provided – is it just about what the law says or does it include practical advice on how to handle diversity matters in the workplace?

We have worked with many organisations both on putting in place suitable policies and keeping those up to date but also on rolling out training on equality and diversity. If this is something you think you need to give attention to, please get in touch with our Employment team who would be happy to help.