Allay (UK) Ltd v Gehlen

The Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal’s (ET) decision in finding that an organisation did not go far enough in preventing racial harassment and was thus liable for the harassment faced by the claimant.

The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for all protected characteristics. The focus of this case is race.

Harassment is unlawful where a person is subjected to unwanted conduct ‘related to’ race, and the conduct has the ‘purpose’ (intentionally) or ‘effect’ (unintentionally) of:

  • violating that person’s dignity, or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her.

Organisations can successfully defend a claim of unlawful discrimination or harassment committed against an employee if they can show that they have taken all steps which are reasonable to prevent the act from continuing or taking place – in accordance with Section 109(4) of the 2010 Act.

FACTS

The claimant, of Indian origin, was employed by the organisation in October 2016 but was later dismissed in September 2017 due to his performance. After his dismissal he brought a claim to the employment tribunal (ET) on the grounds of race discrimination and harassment, claiming that he was subjected to discriminatory and racist comments from one his colleagues.

The organisation attempted to rely on section 109(4) of the 2010 Act as a defence.

ET

The ET heard evidence which included the fact that the organisation has an equal opportunity policy as well as a bullying and harassment procedure dating back to February 2016. However, this did not form the basis of the anti-bullying and harassment training that the offending employees underwent in February 2015 as well as the equality and diversity training they took part in, in January 2015 – the ET determined that an older version of the procedure must have been used for this training.

The ET went on to dismiss the claimant’s argument that direct discrimination had taken place but upheld his harassment claim because the organisation had not successfully shown that they did all that they reasonably could to prevent the offending behaviour from taking place. They described the training received by the offending employees as having been outdated and “stale”.  

The organisation went on to appeal this decision.

EAT

The appeal was dismissed by the EAT. Just as the ET had noted, the EAT held that the organisation could not rely on the defence of having taken all reasonable steps and agreed that the training that the organisation offered had become stale and ineffective for the following reasons:

  1. the offending employees had not seen anything wrong in their behaviour towards the claimant
  2. their other colleagues had also not challenged the discriminatory behaviours, and
  3. those in a managerial position also had not known how to deal with the situation when it was reported to them.

The EAT ultimately decided that more could have been done for the claimant at the time so, therefore, the organisation was indeed liable for the harassment the claimant faced.

Note for employers 

The judgement in this case emphasises the need for organisations to ensure that their equality and harassment training programmes are conducted often enough to be impactful on the employees who are taking them. It may be helpful for organisations to set regular training sessions for all staff (including managers), ensure that the sessions are kept up to date, and assess the effectiveness of these sessions as often as possible.

That said, the risk associated with ignoring or simply relying on the fact that training sessions are in place to tackle discrimination, harassment, or victimisation in the workplace may be graver for organisations than they may anticipate. Whilst employment tribunals will examine each situation on a case by case basis, it may be difficult for organisations to rely on a defence that all reasonable steps had been taken to prevent the issue from developing or advancing if the steps are found to be ineffective.

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