Can an employer rely on the 'reasonable steps' defence to harassment where it provided training to the perpetrator of harassment and other employees?
Not where that training had become "stale" and needed refreshing, held the EAT in Allay v Gehlen.
The Claimant was subjected to racist comments on a regular basis. In a claim for harassment related to race, the employer relied on the 'reasonable steps' defence under s109(4) Equality Act 2010: that it had taken all reasonable steps to prevent the harassment, due to its provision of relevant training to the perpetrator and other employees.
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.
Additionally, 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.
Thanks to Paul Livingston of Outer Temple Chambers for preparing this case summary.