Under the Equality Act 2010 (the Equality Act), employers are potentially liable for acts of discrimination, harassment and victimisation carried out by its workforce.
For liability to attach, there has to be a sufficiently close connection with the wrongdoing so that it is considered to have been carried out in the course of employment. Case law has confirmed that acts outside of working hours and / or off site can be considered “in the course of employment” if they are sufficiently connected to employment. For example, events occurring at a work social event in a pub outside of work hours.
If the act is found to have taken place in the course of employment, it is possible for an employer to defend a claim brought by an alleged victim, if it can show that it took “all reasonable steps” to prevent the harasser(s) from behaving in a discriminatory way.
In terms of deciding whether an employer can show it has taken all reasonable steps, the Employment Tribunal will look at what steps the employer took to prevent the employee from doing the act in question, and whether there are any further reasonable steps that could have been taken.
Allay (UK) Ltd v Gehlen
In a recent case before the Employment Appeal Tribunal (EAT) (Allay (UK) Ltd v Gehlen), the employer was unable to rely on the all reasonable steps defence in relation to a claim of racial harassment. In coming to its decision on this point, The EAT referred to the following points:
- In considering the reasonableness of the steps an employer has taken, 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.
In this case, although the perpetrator of the harassment (and three other employees who were aware of the harassment) had received equality and diversity training, the training that had been given had been delivered 20 months prior to the harassment that was the subject of the claim.
- there was evidence that:
– the training was insubstantial; and
– that employees had forgotten it.
- a further reasonable step could have been taken was to offer refresher training and the employer, therefore, could not show that all reasonable steps had been taken.
This case confirms that employers must meet a high threshold if they are to establish that they have taken all reasonable steps to prevent discrimination.
As a minimum, employers should ensure that:
- they have an equality and diversity policy setting out the organisation’s approach to equal opportunities and discrimination at work;
- there is an anti-harassment policy is in place that complies with the Equality and Human Rights Commission Code of Practice on Harassment;
- the policies (which are readily available to all staff) identify what is considered as unacceptable behavior or unwanted conduct;
- the policies are communicated to workers and are effectively implemented, monitored, reviewed and updated;
- there is an appropriate procedure is in place for reporting harassment confidentially, protecting victims of harassment and taking action if harassment occurs;
- regular training of managers and supervisors takes place in equal opportunities and harassment issues (which includes guidance on how to spot and deal with complaints of harassment and also how to question complainants appropriately);
- steps are taken to deal effectively with complaints, including promptly and thoroughly investigating complaints and taking appropriate disciplinary action against harassers; and
- they treat harassment by a third-party just as seriously as that by a colleague.
Please note this article should only be considered as guidance and should not be taken as specific legal advice.
Training offer until 31 March 2021
Until 31 March 2021 we are offering some of our training courses to employers at the discounted rate of £750 plus VAT. These courses are via Teams for the foreseeable future and can be aimed at managers in order to ensure that they can deal with issues relating to discrimination and bullying and harassment should they arise, or at employees to better inform the workforce and increase employers’ likelihood of being able to rely on the statutory defence if needed.
Managers
- Anti-harassment and Bullying – covering the law, guidance on how to spot and deal with complaints of harassment and also how to question complainants appropriately, and ensuring your managers know how to follow your own policies.
- Discrimination: The basics – covering the different protected characteristics and types of discrimination and practical guidance on how to deal with allegations of discrimination and steps that can be taken to avoid them arising in the first place.
Employees
- Equality and Diversity – covering the protected characteristics and the types of behaviour that could be found to be discriminatory, your policies and the possible consequences of discriminatory conduct.
All training courses include a delegate pack with notes, examples and case studies which will be worked through on the day.
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