Using the “reasonable steps” defence

Many employers when faced with a discrimination or harassment claim by one employee in relation to conduct by one or more other employees will seek to use the “reasonable steps” defence under s109(4) of the Equality Act 2010. If the employer can show that it took all reasonable steps to prevent employees from committing either the particular discriminatory act or discriminatory acts generally, the employer may have a defence against the claim.

In the recent case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal has ruled that employers cannot rely on “stale” equality and diversity training in order to raise this defence. The employee in this claim complained that he had been subjected to harassment by another employee on the grounds of his race. The employer used the “reasonable steps” defence, relying on equality and diversity training which had taken place two years earlier. The employment tribunal had held that the training was “clearly stale” and that it would have been a reasonable step to provide refresher training. It noted that the comments made by the harasser and the fact that three colleagues did not respond appropriately (two of whom were managers) made it clear that that training was no longer effective. The employer’s appeal to the EAT was unsuccessful, with the EAT further noting that there was no reason to consider that refresher training would not have affected the managers’ failure to respond appropriately when made aware of the harassment.

This is an important reminder to employers of the need to ensure equality and diversity training is carried out on a regular basis.

If you have any questions on making a discrimination or harassment claim, please contact our employment law solicitors.