Employers may be familiar with the phrase ‘all reasonable steps’ and how taking such steps can provide them with a defence to a claim for against vicarious liability in the event that their employee unlawfully discriminates against another individual.
The idea of reasonableness is a common theme in employment law and one that is particularly vague, however the Employment Appeal Tribunal’s recent decision in Allay v Gehlen sheds some light on its application in cases involving discrimination and harassment.
The Claimant submitted a claim for racial harassment. The Respondent sought to rely on the reasonable steps defence advising that they had provided training to all trainees, including the harasser.
The Employment Tribunal rejected this defence as the training had been provided over a year before the harassment took place. Furthermore, despite employees receiving the training, harassment had taken place and managers, though aware of its occurrence, failed to report it, demonstrating that the training had been ineffectual.
The Respondent appealed the decision and submitted that the effectiveness of the steps taken should not be the only criteria on which reasonableness is assessed.
The Employment Appeal Tribunal upheld the Tribunal’s initial decision and rejected the Respondent’s defence. It did so by drawing attention to the requirement that all reasonable steps be taken in order for the defence to hold.
When assessing whether or not all reasonable steps have been taken to prevent discrimination an employer must consider the effectiveness, or likely effectiveness, of the steps it has already taken. In this case, the Respondent had failed to consider what further steps it should take to prevent such treatment knowing that the initial training had not had the desired effect. Carrying out further refresher training or a different type of training would certainly have assisted.
What can you do to give your business the best protection?
With employment claims on the rise, now is the time for employers to carry out a thorough review of the steps they have taken to prevent discrimination and consider what further steps may be necessary. If you would like support with reviewing your current policies, we are happy to help. We can provide equal opportunities training for your staff and can also develop more bespoke training to help managers handle complaints involving discrimination or simply to act as a refresher on training you’ve already provided. The details of our current training sessions can be found on the training page. If you’d like to discuss a bespoke training session, please contact us.