In Allay (UK) Ltd v Gehlen, an employer was unable to rely on “stale” equality diversity training as a reasonable step it had taken to avoid an employee’s racial harassment.
Mr Gehlen, a senior data analyst at Allay (UK) Ltd, described himself as being of Indian origin. He was dismissed in 2017, following which he complained that a colleague, Mr Pearson, had subjected him to racial harassment whilst he was employed at Allay. This was investigated by Allay, which found that Mr Pearson’s “racial banter” comprised racist comments.
Mr Gehlen brought employment tribunal claims for direct race discrimination and racial harassment. He was successful in the latter claim.
The Tribunal found that Mr Gehlen was regularly subject to Mr Pearson’s racial comments, including commenting on his skin colour, telling him he should work in a corner shop, and asking him why he was in the country. It was also found that another colleague of Mr Gehlen and two managers were aware of these comments, but the only action that had been taken against Mr Pearson was a mild rebuke.
Allay sought to argue the defence that it had taken all reasonable steps to avoid workplace discrimination. It had an equal opportunity policy and an anti-bullying and harassment procedure dating from February 2016. It had also provided both equality and diversity training and bullying and harassment training to staff, including Mr Pearson and managers, in 2015.
However, the Tribunal rejected Allay’s defence, holding that the training provided was “clearly stale”. It did 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”.
Allay appealed, and the case went to the Employment Appeal Tribunal (EAT).
The EAT dismissed the appeal. It held that the Tribunal was “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 [Allay] should have taken”. Thus, Allay could not rely on an all reasonable steps defence.
The EAT stressed that it was “clearly a high threshold” that an employer would need to overcome in order to show that it had taken all reasonable steps.
