Senior solicitor, Jayne Nevins, explores this in more detail…
We have spoken at length before about how important it is for a leader to make their teams feel safe and supported – and that is certainly the case when it comes to internal policies, training and guidance. A perfect example of this was in the case of Mr Gehlen.
He brought a claim against his employer, Allay (UK) Ltd in the Employment Tribunal for race discrimination and racial harassment. He alleged that he had been subjected to racist comments from one of his colleagues. Although he lost the discrimination claim, Mr Gehlen succeeded with the claim for harassment and Allay (UK) Ltd appealed the judgment to the Employment Appeal Tribunal (EAT).
The Equality Act 2010 defines harassment as unwanted conduct which is related to a protected characteristic, which has the purpose or effect of violating their dignity or creating a hostile or intimidating environment. Any act committed by a harasser during their employment is viewed as having been done by the employer as they assume responsibility for the acts of their employees in these circumstances.
However, there is a defence that the employer can rely upon – and Allay (UK) Ltd did just that. The defence being, if an employer can show they took all reasonable steps to prevent the harasser from carrying out said harassment, or any harassment, then they may not be held responsible for the harasser’s actions. Allay (UK) Ltd relied upon its training programme for preventing discrimination in the workplace, in order to action this defence.
In this case, it was found that the training had taken place two years before the incidents occurred and therefore the EAT confirmed it was too long ago to be able to rely upon as a defence. It agreed with the decision made by the Employment Tribunal – thereby dismissing Allay’s appeal.
Overall, this is a case which goes a long way towards highlighting exactly why it is important to ensure that regular training is taking place, and policies and procedures are up to date, in order to avoid liability in discrimination and harassment claims. We have provided more information on how vital this is, via this blog.
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Senior solicitor, ESP Law Ltd
Jayne has 20 years experience in all areas of employment law. She initially trained as a barrister and cross qualified to become a solicitor 16 years ago. She has specialist experience within the field of healthcare and the hospitality sector. However, for many years she has advised commercial clients in a huge variety of business sectors and so has an in-depth understanding of their needs. Jayne has litigated many complex cases and prior to joining esphr was also an advocate in the employment tribunal.