An employer can be vicariously liable for the harassment of one employee by another. One defence which can be put forward by an employer is the ‘reasonable steps’ defence under section 109(4) of the Equality Act 2010 which states:
‘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—
(a) from doing that thing, or
(b) from doing anything of that description.’
In some instances, the provision of training can form part of the ‘reasonable steps’ defence but not where that training has become ‘stale’ as in the recent Employment Appeal Tribunal case of Ally v Gehlen UKEAT/0031/20/AT.
The EAT in this case decided that the claim was brought following racist comments made to an employee on a regular basis. Training had been given by the employer over a year before the comments and had done nothing to hinder the comments taking place. There had been no refresher training, which would have constituted a reasonable step, until after the comments had been made. Given that training was later provided to the individual making the comments, the EAT deemed that the employer must have held an opinion that it was effective therefore it should have been held sooner. This was also coupled with concern that managers failed to report comments even though they were aware of them.
Being able to evidence that regular training has been carried out in line with your equal opportunity policy is always best practice and would assist to form a defence, if needed.
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