25 February, 2021
On 4 February 2021, the Employment Appeal Tribunal (EAT) handed down judgment in the case of Allay v Gehlen. The case not only addresses the issue of discrimination and workplace harassment but also highlights the importance of providing appropriate training to staff. We feel this case has relevance in the education sector, due to the increasing need to be mindful of the types of interactions that occur in school and the potential reputational impact of not managing these issues. Training needs to be adequate and updated, not only to provide updated knowledge to staff, but also to put school leaders in the best position to be able to prove that they have ensured they have taken all reasonable steps to avoid discrimination amongst staff.
Mr Gehlen, who describes himself as being "of Indian origin", was employed as a senior data analyst by Allay (UK) Ltd from 3 October 2016 until his dismissal on 15 September 2017. After his dismissal Mr Gehlen complained he had been subjected to racial harassment by a fellow employee, Mr Pearson, during his employment. Allay undertook an investigation which determined that Mr Pearson had made racist comments, which he characterised as "racial banter".
Mr Gehlen subsequently brought proceedings in the employment tribunal for direct race discrimination and harassment related to race. In defending the claim, Allay sought to rely on the defence that it had taken all reasonable steps to prevent a protected act from occurring, in accordance with section 109(4) of the Equality Act 2010.
In hearing the claim, the Tribunal found that one of Mr Gehlen's colleagues and two managers were aware of the racist comments but took no action other than one manager issuing Mr Pearson with a mild rebuke. The Tribunal also found that Allay had an equal opportunity policy and an anti-bullying and harassment procedure. In addition, Mr Pearson, his colleague and managers had received equality and diversity training in January 2015 and bullying and harassment training in February 2015, meaning training was provided about one year and eight months before Mr Gehlen began his employment and two years and eight months before his dismissal.
The Tribunal did not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace, as a reasonable step would have been to refresh that training.
In the most recent decision, the EAT have agreed with the Tribunal, making clear that consideration must be given to the nature of the training and the extent to which it was likely to be effective. The EAT ultimately determined that the Tribunal had sufficient evidence to conclude that whatever training there had been was no longer effective; Mr Pearson made racist comments and thought they were "banter" and Mr Gehlen's colleague and two managers took no further action on becoming aware of the comments. In concluding, the EAT commented that there was nothing in the case which suggested that further training of a good standard would not have had a good chance of being effective in preventing discrimination and emphasised that in trying to rely on the 'reasonable steps' defence, employers must meet a high threshold of proof before the defence can be successful.
Leading case law has suggested that the Tribunal will look at the following steps in order to determine whether the Employer has taken the required steps to prevent harassment from happening in the workplace:
For the education sector, it is important to be proactive about the steps take to reduce discrimination and harassment. If not, school leaders are put at risk of increasing instances of internal grievances and/or complaints of bullying and harassment. These process will not only require significant resource and school time but may also have an impact of staff relationships and overall morale.
Further, we suspect that a significant risk will be the reputational impact of seemingly not keeping training and support regarding equality and diversity up to date, therefore whilst it is important to highlight the steps you take to prevent discrimination in school, it is important to constantly have a mind to any other reasonable steps you could take to reduce risk.
It is extremely important that your policies, procedures and training are reviewed and updated regularly to ensure that this is not only compliant with the latest employment law updates, but also to ensure that staff are familiar with what discrimination is, what could amount to discrimination, and the possible consequences should they behave in any discriminatory way.
We can review your existing equal opportunities policy to ensure that this is up to date and as thorough and sufficient as possible to offer you the most protection, in the event that a claim is brought against you under the Equality Act 2010.
Amongst others, we offer bespoke, sector focussed training sessions about quality and diversity, which provides you with extensive information, knowledge and guidance around discrimination, disciplinary actions, and the steps we suggest you should take to manage this.