As a rule, an employer will be liable for the discriminatory acts of its employees towards each other unless it has taken all reasonable steps to prevent them doing that sort of thing (section 109(4) Equality Act, often known as the “statutory defence”).
Allay (UK) Limited –v- Gehlen is one of really not very many cases at all to lift the bonnet on that statutory defence and peer at how the mechanics of it actually work. It is a very clear warning to employers that it is not enough to have done some anti-harassment training at some point in the past and hope for the best thereafter.
The Employment Tribunal accepted that Mr Gehlen had been the subject of a number of racist remarks by a colleague. Allay was therefore liable unless it could establish the statutory defence. In support of that it wheeled out some training materials from a one-off session it had run about two years earlier. Was that the taking of all reasonable steps, as required by the statutory defence?
The EAT made clear that this burden is a high one – section 109(4) does not refer to “some reasonable steps” or only “such steps as were guaranteed actually to affect employee behaviours” or “all the steps which would have been enough had some of the training attendees not been such utter clowns”.
In Gehlen the EAT focussed less on the “all”, however, and more on the “reasonable”. What makes an anti-harassment step reasonable, or put differently, what shows you as employer that the steps which you have already taken are about to fail that test?
It is obvious first of all that the mere fact of harassment taking place is not conclusive evidence that all reasonable steps weren’t taken. The whole statutory defence is based on the premise that such misconduct can take place without the employer being liable for it.
The Tribunal should also look at the fine details of the training given. Was it reasonably comprehensive, and did it squash expressly the more durable misconceptions about harassment, such as that lack of intent makes it OK, or that your mates thought it was funny? The EAT in Gehlen noted that Allay’s Equal Opportunities Policy did not mention harassment at all, while the anti-harassment procedure only referred to it in the title and otherwise focussed entirely on bullying. Its training pack defined harassment entirely wrongly as “behaviour which is intended to trouble or annoy someone” (thereby expressly perpetuating those durable misconceptions) and made no reference to race at all. Relatedly, was your training given by someone (internal or external) with some gravitas and authority in the matter, and visibly subscribed to by senior management? Was it (using the EAT’s distinction) “brief and superficial” or “thorough and forcefully presented“? “If training involved no more than gathering employees together and saying “Here is your harassment training, don’t harass people, now everyone back to work”, it is unlikely to be effective or to last” said the EAT Judge unimprovably.
How long ago was the training? This is less a question of an absolute period of time but more of its effectiveness, the obvious problem being that training is effective only until it isn’t, and the employer does not usually get any warning of that. Here the training had been about two years earlier and it was clear that the EAT thought this too long without some repeat or refresher. In other words, best not to wait for something to go wrong before you take steps to address it.
Relatedly, even if the training was both decent and recent, was it enough? The EAT considered that the question had to be looked at in part through the prism of its past effectiveness. In Gehlen, the Tribunal had found that Allay’s management was aware that he had been subject to harassment subsequent to the training it had done. This was not just about the individual harasser but also the failure of the relevant management staff to do more to prevent or report it, as they had been taught, than basically just tutting and rolling their eyes. Allay knew therefore that the training hadn’t worked at a number of different levels and its failure to do anything about that from that point onwards torpedoed its defence under section 109(4).
The EAT also considered that the question of reasonableness could include its prospective effectiveness looking forward. Obviously you cannot duck the obligation to take reasonable steps because you knew your employees to be so resistant to new thoughts that the presenter would just leave in tears, but there could legitimately be regard had by the employer to the relative costs of different training measures, exercises, etc. That said, the Employment Tribunals have traditionally been reluctant to put a price on preventing discrimination. An employer which had declined to spring for something the ET thought might have made a difference could therefore expect a pretty rough ride.
Gehlen is also a pointer to the importance of looking at the statutory defence more widely than just training. Issues of enforcement will also be key. If Allay’s management had taken action to prevent the harassment when it first occurred, and it had then stopped, then Mr Gehlen might well have failed and Allay’s training endeavours would not have been the subject of such dissection. The “all reasonable steps” obligation is a live one requiring regular attention and review, and Gehlen makes it clear that some policies in a cupboard and a lost lunch-break some years earlier will just not be enough.
There are some 2019 proposals sitting somewhere in Westminster to make it a pro-active duty on the employer (rather than a defensive measure only) to take reasonable steps to prevent harassment. Should they make law, this case will probably become something of a touchstone in what you need to think about in order to satisfy that duty. Pending that, however, why not do that thinking now? How long ago was your last harassment training? Have you had significant staff turnover since then? Do you have records of what was said and to whom? Just between us, was it done accurately, forcefully and comprehensively? Have there been any instances since then which show that the relevant messages were not taken on board by those present (either as harassers or bystanders)? Do your harassment policies actually cover harassment? Are they all about gender or do they cover the other protected characteristics too? The creation of a record of express consideration every now and again (annually?) as to whether there is more that could be done (and acting on it if so) will take an employer a very fair distance towards satisfying the statutory defence.