Well, it turns out very! The case of Allay Ltd v Gehlen highlights the importance that it is simply not enough to rely on the fact that you have the relevant policies in place and that you provide some form of diversity and equality training.
Mr Gehlen’s employment was terminated after around a year of service on the grounds of poor performance. However, following this, Mr Gehlen claimed that he had been the victim of harassment based on his race. Mr Gehlen was of Indian origin and an internal investigation determined that he had been the subject of regular racist comments by a colleague (“P”). Based on this finding, the employer sent P on further equality and diversity training.
During the Tribunal hearing, it was found that Mr Gehlen had previously reported further instances of racism to his manager, but no action had been taken. Several other employees had also overheard racist comments directed towards Mr Gehlen, but again, no further action had been taken in response.
Whilst the employer had the necessary equal opportunity, anti-bullying and harassment policies in place, and had provided training to all employees and had sent P on a further training course, the Tribunal decided that Mr Gehlen had been the victim of race related harassment.
The employer sought to rely on the fact that it had taken all reasonable steps to prevent the harassment, however this was dismissed by the Tribunal. One reason was that the training course for all employees was over a year before the harassment took place and therefore it would have been reasonable for the employer to have provided refresher training. The training course was also the subject of criticism as it neglected to mention racial stereotypes and was considered basic by the Tribunal.
The employer appealed to the Employment Appeal Tribunal, but this was rejected. The EAT held that the employer, through its managers, was aware of the harassment that Mr Gehlen was receiving and had not taken all reasonable steps to prevent it.
Whilst employers may be able to rely on the defence that it had taken reasonable steps to prevent an employee from carrying out a certain act, unless they can prove that all reasonable steps were taken, the employer will still remain vicariously liable for its employees’ actions.
What do employers need to do?
It goes without saying that employers need to ensure that they implement up to date policies surrounding diversity and equality, however, as can be evidenced, that is not always enough.
Regular training should be provided to all employees – in this case it was held that the training provided a year ago had become “stale”. Further, employers need to make sure that the employees not only understand the training, but also implement it. The Tribunal will take into account what actually happens in practice along with the quality and regularity of diversity training.
Please contact a member of our experienced team on 01752 663295 if you would like us to review your policies or training material, to ensure that they are sufficient. We also offer bespoke training tailored to your individual business needs, either virtually or in person.