As Members will be aware, an employer can be liable for acts of discrimination or harassment committed by its employees in the course of employment.  This means that, even if an employee acts without your knowledge or approval, the business can still be held liable for that employee’s discriminatory acts.

However, there is a defence available to an employer if it can prove that it took such steps as were reasonably practicable (the standard in Northern Ireland) or all reasonable steps (the standard under the Equality Act in GB) to prevent the employee from doing the discriminatory act.  This is often referred to as “the statutory defence.”

On 4 February 2021, the EAT in England and Wales delivered its Decision in Allay (UK) Ltd v Gehlen.  This was a Claim of race discrimination claim in which the employer argued that it had provided training and therefore should not be held liable for acts of racial harassment carried out by its employee.

The EAT did not accept the employer’s arguments and found the employer could not rely on the statutory defence.

The employer had an equal opportunity policy and an anti-bullying and harassment procedure dating from 2016.  Equality and diversity training had been given by the employer at various times, that training included a slide on what could be considered to be harassment.

However, the training had been given over a year before the harassment took place.  This led the EAT to describe the training as “stale and no longer effective to prevent harassment.” 

The EAT also went on to state “Brief and superficial training is unlikely to have a substantial effect in preventing harassment…Thorough and forcefully presented training is more likely to be effective, and to last longer.”

This case is a timely reminder of the need for employers to keep their equal opportunities training up to date.  The EAT focused not only on the frequency of such training, but also the content stating that whilst employees may attend anti-harassment training, they may not understand it.  It is therefore important to ensure that the training you provide is comprehensive and is delivered in a way that employees can ask questions so they understand the legal position and your organisation’s rules and standards.