07841706203 louise@watersidehr.uk

There has been a recent Employment Appeal Tribunal case concerning Harassment.  Harassment is unwanted conduct which relates to a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).  A one-off act can constitute harassment, and this can include spoken, written words, banter, gestures, facial expressions and jokes.  An employer will be vicariously liable unless they can demonstrate they took all ‘reasonable steps’ to prevent the act.

What was the case?

In Allay v Gehlen the claimant was subjected to racist comments on a regular basis and claimed for harassment related to race.  Comments included that Mr Gehlen should work in a corner shop and drove a Mercedes ‘like all Indians’.  The employer responded that they had taken all reasonable steps to prevent the harassment, due to its provision of relevant training to the perpetrator and other employees.

What was the result?

The Employment Appeal Tribunal upheld the tribunal’s decision to reject the defence.  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 after the training had taken place.

What does this mean for employers?

The employer needs to have taken all reasonable steps.  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.

As an employer, ensure that you provide training for equality and diversity on a regular basis i.e., yearly to be able to defend any claims and to avoid it becoming ‘stale’.  Of course, it won’t always provide a defence depending on the circumstances but does demonstrate that you have put measures in place.