In Allay (UK) Ltd v Gehlen UKEAT/0031/20, Mr. Gehlen was employed by Allay (UK) Ltd from October 2016 until he was dismissed in September 2017.
After he was dismissed, he raised a complaint that he was subjected to racial harassment by a work colleague during his employment. This was investigated by his employer who found that racist comments had been made.
Mr. Gehlen brought an employment tribunal claim for direct race discrimination and harassment related to race. The tribunal upheld the complaint of harassment related to race, finding that the colleague in question regularly made racial comments to Mr. Gehlen, including that he should go and work in a corner shop and asking him why he was in the country.
The tribunal also found that one of Mr. Gehlen’s other colleagues and two managers were aware of the racist comments but took no real action.
There was an equal opportunity policy and an anti-bullying and harassment procedure in place. Also, those involved had received equality and diversity training in January 2015 and bullying and harassment training in February 2015. As such, the employer sought to defend the claim by detailing that it had taken all reasonable steps to prevent the harassment.
The tribunal rejected this defence. It held that the training carried out was clearly “stale” and that the employer had not taken all reasonable steps to avoid discrimination in the workplace. It detailed that a reasonable step would have been to refresh the training, and that this refresher training was evidently necessary, due to the conduct of the colleagues involved.
The employer appealed to the Employment Appeal Tribunal (EAT).
The EAT dismissed the appeal, holding that the tribunal was entitled to conclude that the training was stale and no longer effective to prevent harassment, and that there were further reasonable steps that the employer should have taken.
Having an equal opportunities policy and procedure in place is not enough for an employer to avoid liability for acts of discrimination carried out by its employees. In addition, the EAT emphasises that the fact employees had training on these policies was not sufficient. The quality and substance of the training is going to be of paramount importance to help avoid and defend such claims, as will keeping training up to date with regular refreshers.
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