Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Employers may find themselves subject to claims under the Equality Act 2010 (EQA) relating to discrimination, harassment, or bullying in the workplace. This will usually be as a result of one of their employees, for which they bear the liability under Section 109 which says:

  • Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.

 Naturally, there are occasions where, despite the best efforts of the employer, one of its employees will nonetheless engage in acts of harassment or similar. To reflect this, included in the EQA is Section 109(4), which states that:

  • In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A—
    • from doing that thing, or
    • from doing anything of that description.

The question for consideration in this case was: what constituted “reasonable steps”, and whether the effectiveness of those steps could be considered when addressing a defence under s109(4).

The facts in Allay (UK) Ltd v Mr S Gehlen: UKEAT/0031/20/AT

Mr Gehlen was subject to race harassment from a colleague, ‘IP’. IP had told Mr Gehlen that he should “work in a corner shop”, and similar comments, and apparently regarded them as ‘banter’. The comments were reported to a manager, who suggested to Mr Gehlen that he should report the issue to HR, despite knowing that it was his responsibility as a manager to do this himself.

The Respondents relied on the fact that they had provided both IP and the other manager with training on harassment and bullying, and had therefore taken all reasonably steps to stop something like this happening.

All reasonable steps defence

As was established in Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, there are a number of factors to consider when looking at reasonable steps. Firstly, what steps had been taken; secondly, what other steps could be taken, and whether it would be reasonable to do so. Essentially, if there was, in theory, the option of prolonged and costly training which would have little to no effect on that specific workplace, it wouldn’t necessarily be reasonable to invest in it.

However, effectiveness of the training was something to consider in this case. The Tribunal had concluded that, although training had been given to both IP and the other manager, it must clearly have been stale as less than two years later, one was still racially harassing under the guise of ‘banter’, and the other was failing to report this behaviour further. As such, the Tribunal concluded that a s109(4) defence was not available, as the employer knew, through its managers, that harassment was happening, and therefore refreshing, updating, and re-running training would all have been further reasonable steps which they could have taken.

On appeal, the EAT agreed with the Tribunal, and gave a more in-depth discussion surrounding effectiveness as it relates to reasonable steps.

Our lawyers’ comments

Chris Hadrill, the partner in the employment department at Redmans, commented on the case: “This case demonstrates that employers must take an effective, regular and consistent approach to training employees on anti-harassment and anti-bullying measures in the workplace – a failure to take such steps could result in a successful claim for discrimination being brought against such employers.”

Link to judgment: https://www.gov.uk/employment-appeal-tribunal-decisions/allay-uk-ltd-v-mr-s-gehlen-ukeat-slash-0031-slash-20-slash-at

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    330 Reviews

    Arabella B

    I am so grateful to Caroline Lewis at Redmans Solicitor’s for helping me with my Unfair Dismissal Case. I was seriously impressed how easy Redmans made the whole case, and am very happy with my Settlement. I have recommended your firm to at least 5 people in the last 3 months.. Thank you Caroline and everyone at Redmans. You are Brilliant .

    Posted 7 hours ago

    Anonymous

    Highly professional and efficient service.

    Posted 12 hours ago

    Tanya T

    I had the pleasure of Chris and Sacha’s experience with a work matter. They made me feel at ease with the process and explained everything thoroughly. Would happily recommend Redmans especially Chris and use them if needed I’m the future. Thank you!

    Posted 13 hours ago

    Anonymous

    I used the services of Redmans solicitors and was a quick outstanding service I engaged them in a settlement agreement after been made redundant extremely professional at all that was done and would definetly use them again

    Posted 14 hours ago

    Adrian A

    Spot on support, enough to get the matter at hand sorted. No beating around the bush, no nonsense - got the job done and we all moved on.

    Posted 14 hours ago

    Mark Q

    Five Stars I was most impressed by the attention, courtesy, speed and above all, professionalism in dealing with my Settlement Agreement. I would certainly have no problem in recommending this firm to anyone in need of their services.

    Posted 1 week ago

    Ade A

    I was surprisingly impressed by how Redmans Solicitors handle my case. From the moment I call them to the absolute end of my case, they always look after my best interest.

    Posted 1 week ago

    Malcolm P

    they were there when others were not

    Posted 2 weeks ago

    Anonymous

    Excellent service all the way through from start to finish. Really great support and guidance from the team, they secured the offer that I wanted. I can't recommend Redmans highly enough and will be sure to use their services again should the need arise.

    Posted 2 weeks ago

    Anonymous

    Efficient and quick service!

    Posted 1 month ago

    Karen B

    Quick response very helpful Issue raised dealt with very quickly

    Posted 1 month ago

    Carmen T

    Redmans give Great service and advice on reading contracts. They can explain all the solicitors jargon into words that you can understand. I received excellent service an I will use them again and again.

    Posted 1 month ago

    Anonymous

    Very grateful for Mel’s efforts in handling my case from start to finish which I would have found very stressful without it. She was very professional, friendly and we had a positive outcome. Highly recommend.

    Posted 1 month ago

    Nalin W

    Mel Chin was my Legal Executive when I engaged the services of Redmans Solicitors to help with a redundancy matter. She was incredibly approachable and professional from start to finish. Specially I have to mention regarding prompt reply to all my email queries, It was super quick. I would thoroughly recommend Mel Chin. Many Thanks

    Posted 2 months ago

    Anonymous

    I'd highly recommend Redmans Solicitors. Mel was very helpful and assisted me throughout my case.

    Posted 2 months ago

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 2 months ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 2 months ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 2 months ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 2 months ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 2 months ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 3 months ago