Am I my employees’ keeper? Defences under s109(4) of the Equality Act 2010 – Allay (UK) Ltd v Mr S Gehlen: UKEAT/0031/20/AT

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