The Employment Appeals Tribunal (EAT) has recently handed down its judgment in the case of Allay v Gehlen. This case concerned a Claimant who had been subjected to regular racist comments and he brought a case of harassment on the grounds of race against his employer.
The employer defended the claim on the basis of the defence contained in section 109(4) of the Equality Act 2010, asserting that it had taken all reasonable steps to prevent the harassment; it had a written equal opportunities policy and it had trained its staff; as such, it asserted that it was not vicariously responsible for the misconduct of other members of its staff.
The EAT found that the Employment Tribunal (ET) had been right to reject the Respondent’s defence. It held that the training was given over a year before the harassment complained of and that management had failed to report the existence of racist comments once they became aware of them.
The EAT further held that an employer needs to demonstrate that they have taken all reasonable steps. In Allay, this would have been satisfied by providing a refresher of the relevant training which was something the employer did not do until after the events in question.
The practical impact
The EAT’s decision in Allay shows that the simple existence of written policies and past training are not sufficient for employers to establish the defence of having taken ‘all reasonable steps’ and as such, demonstrates the need for employers to not only have proper policies in place but to also to ensure that their staff are sufficiently and regularly trained to ensure that their employees are aware of their responsibilities in the workplace.
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