Legal update: race discrimination and the “all reasonable steps” defence

A recent case demonstrates the importance of employers regularly reviewing and refreshing equality and diversity training to help prevent discrimination in the workplace

In the case of Allay (UK) Limited v Gehlen, the Employment Appeal Tribunal considered the application of the “all reasonable steps” defence that can be used by employers to defend discrimination complaints.

Mr Gehlen, who is of Indian origin, started working for the respondent, Allay, on 3 October 2016 as a senior data analyst and was summarily dismissed on 15 September 2017 for performance reasons.

Following his dismissal, Mr Gehlen complained that he had been subjected to racial harassment from a colleague on a regular basis during his employment. The respondent investigated the claim and established the colleague had made racist comments, and that Mr Gehlen had brought this to the attention of his managers who took no action. Mr Gehlen submitted a race discrimination claim and the Employment Tribunal upheld his harassment complaint.

At the Employment Tribunal, the respondent asserted the “all reasonable steps” defence provided by section 109(4) of the Equality Act 2010, on the basis that it had provided equality and diversity training to its staff.

The Tribunal accepted the respondent had an anti-bullying policy dating from February 2016 and that managers at the company had received equality and diversity training in January 2015, but it rejected the defence.

Although the respondent’s management team had received training, the Employment Tribunal found that it was “stale” and it would have been a reasonable step for the respondent to refresh the training. As it hadn’t done this, the “all reasonable steps” defence could not succeed. The respondent appealed the decision.

The Employment Appeal Tribunal held the Employment Tribunal was entitled to conclude the training was “stale” and therefore was no longer effective to prevent the harassment that had occurred.

This decision is a useful prompt that employer’s equality and diversity policies should be reviewed and updated as a matter of course otherwise, they may cease to be effective in preventing discrimination in the workplace.

Joanne Galbraith-Marten
Head of Legal (Employment)

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