The next step

Dignity at work

[Policy]

The EAT’s ruling in the case mentioned in the article

[Weblink]

Harassment and the reasonable steps defence

EAT ruling

In February 2021 the Employment Appeal Tribunal (EAT) handed down its ruling in the case of Allay (UK) Ltd v Gehlan (G) 2021 (see The next step ).

Mr Gehlan (G), who describes himself as being of Indian origin, had commenced employment with Allay (A) in October 2016, working as one of its senior data analysts.

With immediate effect

In September 2017 G was dismissed with immediate effect due to issues relating to his performance. After he was dismissed, G alleged that he had been subjected to racial harassment by a colleague, Mr Pearson (P).

A undertook an investigation and established that P had indeed made racist comments towards G on a regular basis. This included P asking G why he was in the country and suggesting that he should go and work in a corner shop.

Unacceptable comments

As a result, A underwent further equality and diversity training. G then issued a tribunal claim for racial harassment against A. In response, A sought to rely on the reasonable steps defence which is available under the Equality Act 2010 .

It states that where an employer is potentially liable for an act of harassment carried out by one of its employees, the employer can defend a tribunal claim where it can show that it took all reasonable steps to prevent that employee from carrying out the act of harassment or anything of that description.

Statutory defence

As a minimum here, the tribunal will expect to see that the employer has clear equality and diversity policies in place and that staff have been properly trained on them, i.e. written policies alone won’t be sufficient. Examples of what constitutes unacceptable behaviour should also be given to staff. This includes racially offensive jokes and inappropriate questions.

Binding decision

The EAT noted that A had taken the steps above. Nevertheless, it ruled that A was not able to rely on the reasonable steps defence in response to G’s racial harassment claim.

The reason for this decision was that the training A had previously provided to P was several years old and it had clearly become “stale” over the passage of time, i.e. it needed refreshing.

Tip. EAT rulings are binding on the tribunal. In future cases involving harassment allegations, it will almost certainly scrutinise how recent and relevant any training is. If it’s years old or some key issues have not been covered, it is unlikely that the reasonable steps defence will be available to the employer.

Tip. On that basis, not only should you ensure that your relevant policies are clear and robust, e.g. your dignity at work policy, but you must train all staff and continue to provide them with regular refresher training (see The next step ).

For the EAT’s ruling in this case and a dignity at work policy, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 05.