Employers can be vicariously liable under the Equality Act 2010 (EqA) for an act of discrimination committed by an employee even though they did not know about the acts of discrimination. However, there is a potential statutory defence for employers if they can show that they took ‘all reasonable steps’ to prevent the discrimination from occurring under section 109(4) of EqA.
There is no defined list for what reasonable steps amounts to, however this may manifest in actions such as;
- Up to date equality policies;
- Regular training;
- Quality of the training; and
- Dealing with allegations of discrimination thoroughly
If an employer can establish an all reasonable steps defence then the Tribunal may find that the employer is not liable for the discriminatory acts even if they occurred during employment. The successful use of this defence can be seen in the case of Leader v Hossack [2019] UKET 1808211/2018. In this case the employer was successful in showing that it had a clear dignity at work policy, training for all staff and a culture of allowing employees to raise concerns. The result of this defence meant the Leeds City Council (the employer) was removed from the pleading and the case continued against the employee alone.
However, there are limits to this argument and the all reasonable steps defence will not always succeed. This can be seen in the recent case of Allay (UK) Ltd v Gehlen UKEAT/0031/20/AT.
The Claimant (Gehlen) brought claims for racial discrimination relating to a number of harassing comments related to his race. The Claimant raised a complaint with the Respondent (Allay UK Ltd) who upheld the Claimant’s complaint. The Respondent attempted to use the all reasonable steps defence asserting that they had implemented equality training. However, the Tribunal rejected the Respondent’s defence, accepting that they had implemented training which covered harassment related to race but this was provided in early 2015 and was ‘clearly stale’. The Tribunal held that it would have been reasonable for the Respondent to have implemented a refresher course.
The Respondent appealed the Tribunal decision contending that the effectiveness of the training was not relevant. However, the Employment Appeal Tribunal found differently and stated that the fact that the Claimant’s colleague overheard these racist remarks but did not report it because they believed it to be ‘banter’ was adequate in establishing that any training that was provided was no longer effective. Overall, the Employment Appeal Tribunal found that the training provided was stale, no longer effective, and a refresher course would have been reasonable in an attempt to prevent discrimination.
This case is a reminder to employers that in order to rely on the all reasonable steps defence the actions taken by an employer in relation to training must be effective and up to date.
