Employer’s defence failed where equality training was stale and required refreshing (Allay (UK) Ltd v Gehlen)

Under section 109(4) of the Equality Act 2010 (EqA 2010) an employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it can demonstrate that it took all reasonable steps to prevent those actions (or actions of that kind). In determining whether the employer has established that defence, it is legitimate to consider how effective the steps taken were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice. For example, a tribunal may find that the defence is not made out where the behaviour of employees shows that the training has become stale and requires refreshing, according to the EAT.

Allay (UK) Limited v Gehlen (UKEAT/0031/20/AT (V))

What are the practical implications of this case?

It has always been notoriously difficult to succeed in the ‘employer’s defence’ to a discrimination case, which is why it is infrequently pleaded.

In this case, the EAT reiterates that the defence is only available to an employer that can show that it has taken all reasonable steps, which is a high threshold. The provision of training on issues such as equal opportunities and harassment is not simply a tick box exercise. If an employer wants to succeed in running the employer’s defence is it likely to have to show that, alongside any other relevant steps, the training provided to employees was comprehensive, rigorous, regularly refreshed and is being effectively applied in practice by those who have undergone it, not only evidenced by incidents being prevented but also by managers taking appropriate action and reporting to HR when incidents do occur.

Employers may wish to review policies and training materials to look at whether they expressly and effectively cover all relevant issues. For example, the EAT was unimpressed in this race discrimination and harassment claim that:

• the equal opportunities policy did not make any reference to harassment
• the anti-bullying and harassment procedure only referred to harassment in the title and thereafter only referred to bullying, and made no mention of race
• the training:
  • defined harassment as ‘behaviour which is intended to trouble or annoy someone, for example repeated attacks on them, or attempts to cause them problems’
  • gave an example of harassment as ‘offensive jokes, suggestive or degrading comments’
  • made no reference to race or racial stereotypes

An employer may also want to assess whether the training was and continues to remain effective, for example by:

• reviewing case studies with those who have undertaken the training to ensure they understood it (e.g. as part of a post-training test), and
• carrying out regular refresher training

Case details

• Court: Employment Appeal Tribunal
• Tribunal: His Honour Judge Tayler, Mr Clancy and Mrs McArthur BA FCIPD
• Date: 4 February 2021

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.