Harassment – Can I rely upon a ‘reasonable steps’ defence?

Not only is it good practice to provide regular staff training, but as the recent case of Allay (UK) Limited v Gehlen highlights, it is essential if you want to rely on a ‘reasonable steps’ defence in employment tribunal proceedings.

Allay v Gehlen – a summary

In the recent case of Allay v Gehlen, the employee, Gehlen, issued a claim for harassment after being subjected to continued racist comments from a colleague.

At the employment tribunal, the employer, Allay, attempted to rely on the ‘reasonable steps’ defence under s.109(4) Equality Act 2010.

Allay argued reasonable steps had been taken to prevent harassment because of the training that they had given to employees. The employees and managers of Allay, including the employee accused of the harassment, had all received training before the incidents raised by Gehlen.

Allay also had an equal opportunities policy and an anti-bulling and harassment procedure.

This defence was rejected by the tribunal and this decision was upheld on appeal by the Employment Appeal Tribunal. This was because the training had been provided over a year before the harassment and had therefore become ‘stale’. The managers were also aware of these racist comments and had failed to report them.

A reasonable steps defence may have succeeded had the employees undertaken refresher training or if there was nothing to suggest further training would have been effective.

Allay provided the perpetrating employee with training after the harassment occurred. This gave the impression that they thought the employee would benefit from refreshed training.

What is a ‘reasonable steps’ defence?

For the purpose of the Equality Act 2010, employees’ actions in their course of employment with a company are regarded to have also been committed by their employer. This is regardless of whether the actions are known to the employer or not.

In such a case, the employer is held ‘vicariously liable’ for acts of discrimination, harassment or victimisation committed by the employee in the course of their employment.

As an employer you may have a defence if you have sufficient evidence to prove that in all circumstances you have taken all reasonable steps before an alleged incident of discrimination occurring to prevent this, or from doing anything of that description. Acting in response to a complaint or issue will not be enough to run this defence.

A two-stage approach is usually taken by tribunals when considering this defence:

• Firstly, what steps the employer actually took.
• Secondly, whether there were other reasonable steps it could have taken.

Consideration is given to the size and resources of the employer to assess what would reasonably be expected from them to prevent the discriminatory act.

What do employers need to do to rely on this defence?

It is recommended that you:

• Have and implement a policy on equal opportunities, including anti-harassment and bullying.
• Ensure your employees are aware of the policy and the implications. This includes them understanding that if the policies are not followed it may lead to disciplinary proceedings.
• Consider displaying notices so your employees are aware what action is considered unacceptable and what action might be taken.
• Have a system that encourages employees to report unacceptable behaviour they might experience or witness.
• Act on all discrimination complaints and take disciplinary action if appropriate.
• Train managers and supervisors in equal opportunities and harassment issues.

In Allay v Gehlen, the fact that the employer had provided refresher training after the harassment had taken place was not sufficient. These steps must be taken before the harassment occurs.

It is also important to keep in mind that just having the policies is not enough. You must also be able to evidence that you have taken practical steps to implement it. It is also important that any training is reviewed and refreshed with employees on a regular basis.

Updating policies and procedures

The case of Allay v Gehlen highlights the importance of policies being regularly assessed to ensure they are up to date, relevant, and are actually being implemented and enforced. The reasonable steps defence is likely to be ineffective if you have a policy but are not adequately implementing it.

To minimise risk of successful discrimination claims, you should regularly review and update policies and procedures and associated training and ensure that this is evidenced.

Further support

Brachers Employment team offer expert support with drafting and updating policies and procedures. We can also provide training in this area.

For more information on how we can support you with ensuring you take all reasonable steps to prevent harassment or other forms of discrimination and create a safe working environment, please book a free 30-minute online appointment with a lawyer from our Employment team for an initial discussion about your needs and how we can help.

This content is correct at time of publication