Racial Discrimination Case: Allay (UK) Ltd v Gehlen (4 February 2021)

Protected Characteristic involved: Race
Legal Principle involved: Reasonable steps defence under s109(4) Equality Act 2010
UK or EU Judgement? UK – EAT

Why is this case important?

There are only a few reported cases regarding the reasonable steps defence. There is a high  threshold to establish all reasonable steps have been taken, and offering training as a tick-box exercise is unlikely to suffice. When seeking to rely on training as a step, employers should note that the Tribunal will review the quality of the training and how regularly it is provided.

What’s the case about?

The Claimant, Mr Gehlen, worked as a senior data analyst and after being dismissed for poor performance, he claimed at ET that he had been subject to race discrimination and racial harassment. The Tribunal determined that Mr Gehlen had been subjected to regular racist comments and his claim for racial harassment was upheld. The Respondent tried to on the reasonable steps defence, namely that it had taken all reasonable steps to prevent the harassment, due to its policies and provision of relevant training to employees including the perpetrator. The perpetrator had received anti-bullying and harassment training, and equality and diversity training, some 20 months earlier. However, the defence failed and the Respondent appealed.

The EAT stated that it was entitled to find that the training delivered to employees had become “stale” and required refreshing. The original ET decision was upheld.

The EAT said it is legitimate to consider how effective the steps were likely to be and how effective they have proved to be in practice. In this case, the training was no longer effective as demonstrated by the racist comments. A further reasonable step would have been to offer refresher training, and therefore the employer could not show that all reasonable steps had been taken. The fact that the perpetrator was required to undergo training after the harassment was further evidence that it was necessary.

What do you need to know?

Simply offering training as a tick-box exercise is unlikely to suffice, employers must consider the quality of the training and how regularly it is provided.

Read more discrimination case law articles.