A recent case involving Jaguar Land Rover (JLR) has emphasised the fact that a mere written equal opportunities policy nestled in the depths of a staff handbook will not, of itself, protect an employer against its vicarious liability for the discriminatory acts of an employee.

The facts

Ms Taylor had worked for JLR for almost 20 years. During most of that time, she identified as a gay male. She began identifying as gender-fluid in 2017, and started wearing women’s clothing to work. Ms Taylor was subject to abuse and discrimination from some of her colleagues, and claimed she was not adequately supported when she raised it with JLR’s management. JLR’s management said they were unable to take action unless Ms Taylor named the individuals concerned.

JLR’s ‘defence’ to the subsequent discrimination claim from Ms Taylor centred on 2 points, the second of which was that they had a ‘statutory’ defence under Section 109(4) of the Equality Act 2010, which provides that it is a defence (for an employer) if it “took all reasonable steps to prevent (an alleged discriminator) from doing that thing, or… …anything of that description”. JLR pointed to their anti-discrimination policies in support of this second aspect of its defence.

The judgment

The Tribunal dismissed JLR’s reliance on the Section 109(4) statutory defence, stating:

Given that the Respondent had some policies but did little or nothing to publicise or implement them, we found it hard to believe that the statutory defence continued to be pursued.”

It was found that although JLR did have anti-discrimination policies in place, there was little awareness of them at management or employee level. The Tribunal also took a dim view of JLR’s refusal to take action unless Ms Taylor named the individuals who had harassed and discriminated against her.

Similarities with Allay v Gehlen

The failed reliance on the statutory defence in Section 109(4) Equality Act 2010 bears striking similarities to the Tribunal’s conclusions in Allay v Gehlen reported in our earlier blog.

In this instance, a former employee, Mr Gehlen, brought a claim against Allay UK Ltd after he was subjected to persistent comments which were racist in nature from some of his colleagues during his employment. These comments went unreported at the time. Although the Tribunal accepted that Allay UK Ltd had given training covering racial harassment to all staff members involved in the claim, the Tribunal also found that “in all cases the training which had been delivered was several years before the events in question and was clearly stale. We do not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training.”

How Edwin Coe can help

The decisions in these 2 cases clearly demonstrates the need for businesses to go beyond merely having anti-discrimination/equal opportunities policies if it wishes to rely on the statutory defence of having taken ‘all reasonable steps’ to prevent the discriminatory conduct of some of its employees. Not only must those policies be in place but employers must ensure that staff are trained and that their training is routinely refreshed. Edwin Coe’s Employment team, headed up by Linky Trott, are ready to advise employers and employees on their rights and obligations under the Equality Act 2010 and to provide assistance with any training requirements.

If you have any queries on this topic, please contact Linky Trott or any member of the Employment team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

Please also see a copy of our terms of use here in respect of our website which apply also to all of our blogs.

Latest Blogs See All

Share by: