Introduction

Just last month, the decision of the EAT in the case of Allay (UK) Ltd v Gehlen UKEAT/0031/20/AT (“Allay”) was widely reported in the context of the high threshold employers must reach in order to rely on a reasonable steps defence when faced with a successful harassment claim.  This is of particular interest because there are very few cases which have considered this question.

The case involved an individual who brought proceedings against his former employer for race discrimination and harassment. The allegations included claims that the individual had been regularly subjected to racial abuse by a fellow employee and two managers were aware of it (either as a result of hearing it or being told by the Claimant about it) but took no action to stop it or discipline the employee involved in making the inappropriate comments.

The employer, being vicariously liable for the discriminatory acts of its employees, sought to rely on the reasonable steps defence (see below), citing the existence of an equal opportunity and anti-bullying and harassment procedure in the first instance. They also evidenced training undertaken by the employee and the managers involved as a means of advancing this defence.

The Employment Tribunal found in favour of the Claimant, accepting that they were the subject of racist remarks at least once per month. The employer’s appeal to the EAT was dismissed holding that the Tribunal were entitled, “to conclude the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken.” (p.53, Allay).

The EAT emphasised that an employer seeking to rely on the defence that it has taken all reasonable steps to prevent harassment or discrimination has to cross a high threshold.

In the course of its judgment the EAT identified a three-stage approach:

1. Identify any steps that have been taken;
2. Consider whether they were reasonable; and
3. Consider whether any other steps should reasonably have been taken.

When considering this third point, the EAT said that issues such as the cost or practicality of taking the steps should be considered, as well as its likely effectiveness.

What Is The Reasonable Steps Defence?

Under Northern Ireland’s equality legislation, A person (A) harasses another (B) if A engages in unwanted conduct, related to a relevant ‘protected characteristic’ (such as race, religious belief or gender), which has the purpose or effect of either:

• violating B's dignity; or
• creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The general rule is that an employer will be vicariously liable for acts of discrimination or harassment carried out by their employees in the course of their employment.

You may be able to avoid vicarious liability for an employee's actions if you can show you have taken all reasonable steps to prevent the behaviour. But what does this mean?

The equality legislation provides that in respect of anything alleged to have been done by an employee in the course of their employment, it is a defence for the employer to show that they took such steps as were reasonable to prevent the employee from:

• doing that thing; or
• from doing anything of that description.

This is often known as the ‘reasonable steps’ defence.

The Existence Of Anti-Harassment Policies

In order to establish that ‘reasonable steps’ have been taken by the employer to prevent the discriminatory conduct, there is no minimum legal requirement. However, in a guide produced by the Equality and Human Rights Commission (EHRC) in England and Wales, they advise that all employers will be expected to have in place:

1. An anti-harassment policy that is communicated to workers and is effectively implemented, monitored and reviewed.
2. An appropriate procedure for reporting harassment, protecting victims of harassment and taking action if harassment occurs.

Having a policy on bullying and harassment is advisable not only to protect your business from legal risk, but also because everyone has the right to work in an environment free from unacceptable behaviour.

While many employers choose to draft a policy specifically focused on setting out expectations around bullying and harassment, shaping such a policy as a 'Promoting Dignity at Work Policy' may engender a more positive approach towards promoting a working environment free from hostile behaviour.

Training

The mere existence of training on anti-harassment policies is unlikely to be sufficient to establish that reasonable steps have been taken by an employer to prevent such treatment in the workplace. In the case of Caspersz v Ministry of Defence UKEAT/0599/05, the EAT held that employers must show they have taken effective steps to implement the policies.

Training is of central importance in the process of implementation, and employers must take practical steps to deliver training to workers and management on their anti-discrimination policies.

Where training is no more than a tick box exercise and employees are simply sent back to work being told not to harass people, this is unlikely to be effective or long lasting, and certainly unlikely to pass the threshold to establish a successful reasonable steps defence.

In the case of Smith v Renrod ET/1400166/15, the Tribunal rejected the employer’s argument that evidence of a manager’s attendance at a 1-day discrimination course was sufficient to show that steps had been actively taken by the employer to prevent sexual harassment in the workplace. The Tribunal held that the evidence showed that the employer had failed to take any steps to prevent a culture of sexual banter in the workplace which allowed a manager to actively participate in and encourage such behaviour without challenge.

Another danger of training as a tick box exercise is that it risks being a one-off activity or session which is often never revisited by employers by way of update or refresher training.

In Allay the EAT referred to “Brief and superficial training” as “unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective, and to last longer.”  (p.36)

For training to be considered effective, it is also important that employees understand it.

Ensuring policies and training are fit for purpose

With that in mind, how can an employer use effectively implement anti-discrimination policies to ensure that they are taking such steps as are reasonable to prevent discriminatory conduct occurring in their organisation?

We have set out some practical tips below for employers to consider both with regard to their anti-discrimination training and as part of a wider objective to truly embed equal opportunities and dignity at work into workplace culture:

1. Review - Conduct a regular review of policies and related training to ensure they are up to date. Consider if they cover off all important aspects, including providing description and examples of harassment, with regard to the protected characteristics that sit within the equality legislation. 
   
   In Allay, the EAT commented with regard to the employer’s policies that the Equal Opportunities policy did not mention the subject of harassment, and further that the anti-harassment policies made no reference to race or racial stereotypes by way of illustrative example.
   
   
2. Efficacy of training - Employers should be focused on the quality and effectiveness of the training. Where they believe there is evidence of lack of understanding or ignorance, this should trigger further steps being taken to revisit the training to ensure it is fit for purpose.
   
   
3. Refresher training - Ensure that training is not something that is a one-off event on commencement of employment, or on promotion. Refresher training should be considered periodically for management to ensure there is an effective understanding of what constitutes harassment and the steps that can be taken to prevent it, and to deal with instances of it. This will prevent against future risk of training being held to be ‘stale’ or ‘outdated’.
   
   
4. Inform and Educate - When rolling out anti-discrimination training in the workplace, consider the focus being on education rather than simply creating a list of things employees are told they should not do. This will help employees to better understand how their actions can impact on others, and when jokes and ‘banter’ could have an adverse or negative impact on others. Overall, a well devised programme of training could reduce the instances of complaints of harassment and make for a better working environment.
   
   
5. Dealing effectively with complaints - Where there has been a complaint of harassment, consider what further steps or learning points can be taken from that complaint. This could be:
   - ensuring that appropriate action under the disciplinary procedure is taken,
   - organising refresher training for staff members.
   - setting up confidential talking groups for employees to discuss issues such as their understanding of what harassment is, behaviours that are, and are not, acceptable and how employees feel about existing working culture. 
   
   
6. Points of contact - Lines of communication that enable employees to raise concerns without fear of adverse impact are also important. Depending on your organisation's size and resources you may wish to consider alternative reporting lines, such as a designated person in your HR team, or a confidential anonymous telephone line. Some employers may have a nominated Dignity at Work champion, to provide support and guidance for employees who have concerns about bullying and harassment

Quoting from the EAT’s decision in Allay, “Considering this matter during the Coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last.” (P.36 Allay).

Looking beyond this case, training is just one part of the picture when it comes to promoting equality at work. Employers should be taking steps to promote a positive equalities culture throughout their organisation, with visible, senior level sponsorship and clear reporting lines for employees who wish to raise concerns.

eLearning Training Resource

Diversity & Inclusion in the Northern Ireland Workplace

Legal Island’s Diversity & Inclusion in the Workplace eLearning course is tailored specifically to Northern Ireland law and provides comprehensive compliance training for all employees ensuring they are aware of their roles and responsibilities in promoting a diverse and inclusive workplace for everyone.

Learn more >