Employers: Avoiding Harassment Claims

February 24, 2021

Harassment occurs when a person engages in unwanted conduct related to a relevant protected characteristic (such as sex or race) which has the purpose or effect of either:

• violating another person’s dignity, or

• creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

Under the Equality Act 2010, an employer can be liable for harassment and other discrimination claims where the harassment is carried out by one of its employees against another. However, the employer will have a defence if it has taken “reasonable steps” to prevent such actions by its staff.

Examples of reasonable steps that an employer could take include providing equality training and having a robust written policy on equal opportunities, anti-harassment and bullying. However, in the recent case of Allay v Gehlen, the Employment Appeal Tribunal (EAT) restricted the availability of the “reasonable steps” defence and emphasised the importance of ensuring these steps are not just token gestures.

The employee in this case, Mr Gehlen, had been subjected to racist remarks on a regular basis. He brought a claim of harassment in the Employment Tribunal. The employer, Allay, sought to rely on the reasonable steps defence on the basis that it had provided training on harassment two years previously, which included one slide on harassment and what employees should do if they overheard unacceptable comments in the workplace.

The EAT held that the steps taken by Allay were not reasonable, emphasising that an employer cannot rely on this defence where the training provided had ‘become stale’ and needed refreshing. A reasonable step for the employer would have been to refresh this training and it had not done this.

The learning points from this case for employers are:

• Ensure that equality policies and training are robust and easily accessible to staff

• Review polices and training annually, to ensure that they are as up to date. If at any time you become aware that the training may have ceased to be effective (e.g. that harassment, bullying or discrimination may be occurring), then take action immediately to rectify it. This could include appropriate disciplinary action and further training.

• Consider giving certain employees such as managers and HR professionals additional training on matters such as equality and harassment.

• Ensure that new employees are given appropriate training as part of their induction process.