Race discrimination and an employer’s defence of reasonable steps

An employer can defend a claim resulting from unlawful discriminatory actions made by an employee, if it is able to rely on section 109(4) Equality Act 2010. This section states that it is a defence for the employer to show that it took all reasonable steps to prevent an employee:

• From doing that thing, or
• From doing anything of that description.

This means that an employer will avoid liability if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.

Reasonable steps would usually include:

• Having and implementing an equal opportunities policy, together with an anti-harassment and bullying policy.
• Reviewing those policies as appropriate.
• Making all employees aware of the policies and their implications.
• Training managers and supervisors in equal opportunities and harassment issues.
• Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

In Allay (UK) Ltd v Gehlen, the employment appeal tribunal considered how effective the steps taken by the employer were likely to be when they were taken, together with how effective those steps were in practice. In this case, the tribunal dismissed a claim of direct race discrimination, but upheld a complaint of harassment related to race.

Mr Gehlen started working for the company, Allay (UK) Limited, in October 2016 as a senior data analyst. He was dismissed with immediate effect in September 2017 and the tribunal accepted that the reason for his dismissal was his performance.

After being dismissed, Mr Gehlen brought a complaint that he had been subject to race harassment by another employee, IP. The company carried out an investigation and it was established that IP had made racist comments. As a result of the investigation, IP underwent further equality and diversity training.

Based on the evidence provided, the tribunal concluded that the racist remarks made by IP were made on a regular basis. The tribunal also heard evidence from DA, the customer service manager, who stated that he had not heard IP making racist comments to Mr Gehlen. However, he said that Mr Gehlen had told him in August 2017 that IP had made racist remarks to him and that DA had told Mr Gehlen to report it to HR. The tribunal felt that, as a manager, DA himself should have reported the matter further.

The company sought to rely on the defence provided for by section 109(4) Equality Act 2010. The tribunal accepted that the company had an equal opportunity policy and an anti-bullying and harassment procedure dating from February 2016. The tribunal also found that IP and DA had undergone bullying and harassment training, together with equality and diversity training in 2015. However, the training had been delivered several years before the events in question and was ‘clearly stale’. The tribunal found that the company had not taken all reasonable steps to avoid discrimination in the workplace, as a reasonable step would have been to refresh the training. The tribunal found that this was demonstrated by the remarks made by IP and the fact that DA, together with two other employees, failed to properly react to the allegations of harassment. The training had made clear to employees what they should do if they heard unacceptable remarks and the three employees had all failed to follow the guidance.

Summary

In order for employers to rely on the section 109(4) defence, they need to ensure that they have taken reasonable steps to prevent harassment. Training should be provided and it needs to be of a good standard. Employers also need to ensure that employees have understood the training. If managers become aware that employees are continuing to engage in harassment, or that it is not being reported correctly, then this should highlight to employers that the training needs to be reviewed, renewed or refreshed.