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Can an employer rely on the ‘reasonable steps’ defence to harassment where it provided training to the perpetrator of harassment and other employees?

Makbool Javaid, Partner - Simons Muirhead & Burton

Not where that training had become “stale” and needed refreshing, held the EAT in Allay v Gehlen. The point of this case is that if an employer takes all reasonable practicable measures to reduce the risk of discrimination then the employer will have a defence. However the measures should include comprehensive and up to date regular training and awareness raising programmes. An employer cannot escape liability by relying on some training that was carried out many years before.

The Claimant was subjected to racist comments on a regular basis. The EAT upheld the tribunal’s decision to reject the defence. As to the reasonableness of the steps taken, the training, given over a year before the harassment, had become stale, as demonstrated by the racist comments and managers failing to report them when they were aware.

In this case, a reasonable step would have been to refresh the training, and there was nothing to suggest that this would not have been effective. In fact, the employer provided the perpetrator with training after the harassment, so must have thought it was likely to be effective.

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