Are you really doing enough to prevent the risk of harassment in the workplace?
As most employers are aware, there are many instances when the organisation may be liable for the wrongful actions of their staff. One area of risk is of employers being liable for discriminatory acts committed by their employees against each other. The Equality Act makes it clear that a discriminatory act, such as harassment, by one employee against another will be treated as if the employer itself carried out that act, which does lead to the sorts of bullying and harassment claims regularly reported. There are defences available to claims of discrimination and the ‘Reasonable Steps’ defence is well-established as a mechanism by which an employer will seek to show that it took all reasonable steps to prevent discriminatory acts by its staff.
Many employers ensure that regular equality & diversity training is provided on this basis, so that they have the opportunity of reminding staff about standards of behaviour, as well as reducing the risk of claims. The recent case of Allay v Gehlen considered the employer’s provision of equality training and whether this would amount to ‘reasonable steps’ taken to prevent employees from harassing colleagues. In its defence, the employer stated that it had provided such training and that harassment related to race, and how employees should deal with unacceptable remarks, was specifically addressed in the course.
However, both the employment tribunal and the Employment Appeal Tribunal (EAT) found that the training had taken place over a year previously and that it had been ineffective since a number of managers and employees had failed to report continuous racist comments which they had witnessed. The EAT held that the employer had failed to take all reasonable steps, since it had not put in place any refresher training, or ensured that the original training was effective.
The findings have been widely reported and are a very timely reminder to employers of the need to ensure that they provide regular and effective equality training – a ‘sheep-dip’ short refresher course rolled out to all staff every few years is unlikely to amount to a reasonable step defence in the face of a discrimination claim.
We can help you with delivery of effective training sessions which are designed to satisfy the reasonable steps defence test – if you would like advice about limiting the risks, or you would like to talk to us about training your staff, please do get in touch.