Allay (UK) Ltd v Gehlen [2021]

The claimant was employed by the respondent, a company specialising in processing consumer claims relating to financial mis-selling, on 3rd October 2016.   The claimant was dismissed by reason of his performance on 15th September 2017.  There was no claim for unfair dismissal due to the two year continuous service requirement in England and Wales.  After being dismissed, the claimant alleged that he had been subjected to harassment relating to his race by another employee.   The respondent investigated the allegations and found that the employee in question had made the racist comments and was ordered to undertake further equality and diversity training.   

The claimant brought claims on the basis of harassment, but the respondent sought to argue that they had taken reasonable steps as seen under Section 109(4) of the Equality Act 2010 (Article 32(5) of the Race Relations (NI) Order 1997 in Northern Ireland) because the workforce had received training in equality and diversity.  

At first instance, it was held that the respondent had not taken all reasonable steps on the basis that the training delivered to the employee in question was in early 2015 and that it had become ‘stale’.   This was especially so considering that it had also been heard by another colleague yet the proper steps of bringing it to the attention of management/human resources was not followed. 

The respondent appealed the decision to the EAT, stating that the approach taken to the ‘reasonable steps’ defence was erroneous by the Tribunal.   The EAT stated that in determining the reasonableness of a step taken it is insufficient to merely ask if there had been training given.  The Tribunal’s examination must be deeper and examine the nature of the training and the likelihood that it would be effective.   The Tribunal must also take into account whether there are other reasonable steps that could have been taken by the respondent.  The determination that the training had gone ‘stale’ by the Tribunal was not to be interfered with by the EAT as it was a factual matter.   

The fact that there had been racist comments and they have been heard by other colleagues was sufficient to conclude that the training was no longer effective.  The argument by the employee that it was mere ‘banter’ was taken into account for showing that the training had lost its effect.   Indeed, the fact that the repercussion of the investigation was that the employee had to undertake further training demonstrated how the respondent felt that such training would be effective. As a result, the EAT dismissed the appeal, holding that there was a failure to take reasonable steps, and the claim of harassment was upheld. 

Practical Lessons 

This case demonstrates the need to keep equality and diversity training up-to-date.   The training can go ‘stale’ for a number of reasons.  This may range from natural societal shift and what then constitutes racism in the workplace, to other issues, such as the training fading from the individual’s mind.   Therefore, employers may want to review when such training had last been undertaken with a view to ensuring that a refresher event is held to ensure that the ‘reasonable steps’ defence will be applicable if an event of harassment unfortunately occurs.
https://assets.publishing.service.gov.uk/media/601bc9e3e90e07128691d2c2/Allay__UK__Ltd_v_Mr_S_Gehlen_UKEAT_0031_20_AT.pdf

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