Can employers who train their staff still be held liable for the discriminatory acts of their employees?

Where an employee commits an act of discrimination against another employee, both the employee who committed the act of discrimination and their employer will be liable to pay compensation. However, an employer can escape liability if it can persuade an Employment Tribunal that it took "all reasonable steps" to prevent the act of discrimination occurring.

The Employment Appeal Tribunal (the EAT) recently examined what steps an employer must have taken in order to be able to rely on this defence, which we discuss below.

What happened in this case?

In the recent case of Allay (UK) Ltd v Gehlen UKEAT/0031/20UKEAT/0031/20, the employee complained that he had been subjected to racial harassment by a colleague during his employment. The employer undertook an investigation and determined the colleague had indeed made racist comments.

 On hearing his claim, the tribunal found that the colleague had regularly made a number of highly discriminatory racial comments to the employee - including ‘that he should go to work in a corner shop’ and ‘he drove a Mercedes car like all Indians’. However, the tribunal also found that the employer in question had:

• an equal opportunities policy; and
• an anti-bullying and harassment procedure; and
• that all relevant employees and managers had indeed received equality, diversity and bullying and harassment training too.

 Had this employer taken all reasonable steps?

No. The EAT set the bar high for the employer, making clear that although relevant training had been provided the employer could not rely upon the ‘reasonable steps defence’ because:

• the training was too old, taking place 20 months prior to the harassment, and was therefore “stale”; and
• the training appeared to be insubstantial - the employees appeared to have forgotten it.

Accordingly the employer had not taken all reasonable steps and was liable for the discriminatory comments.

What does this mean in practice for employers?

To be able to rely upon the reasonable steps defence, employers are likely to have to provide very high quality and in-depth training that is refreshed on an annual basis. Without this an employer is unlikely to be able to rely upon the reasonable steps defence and so will be liable to pay compensation for any discriminatory acts of its employees.

Regular, high quality, training should of course reduce the risk of discrimination occurring in the first place.  However, even if such discrimination does occur, provided an employer can demonstrate it has provided high quality training to employees on a regular (probably at least annual) basis then it should be possible for an employer to rely upon the reasonable steps defence and avoid liability.

 Our team provide bespoke training - so do get in touch if you need support in this area.