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Recent Employment Appeal Tribunal decision reiterates need for training to be effective

View profile for Leanne Day
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In the recent case of Allay (UK) Ltd v Gehlen, it was held that even where employees have been trained in the past, this does not mean that the statutory defence to vicarious liability can be satisfied if that training has become stale and ineffective.

What is the law?

Section 109 Equality Act 2010 states that where an employee commits an act during the course of employment, their employer can be vicariously liable.  This means that anything done by a person in the course of their employment is also treated as being done by their employer.  The employer does not have to have knowledge of the act nor show they approve.

However, Section 109(4) provides a statutory defence whereby the employer is only deemed vicariously liable if they have failed to take all reasonable steps to prevent such acts from happening.  As such, they must prove that they have taken such steps, for example by demonstrating that policies and procedures are implemented and adhered to throughout the workplace.

What was the case about?

The employee brought a claim for harassment following dismissal from his role on the grounds of performance.  He had been subjected to regular racial discrimination by a colleague and claimed that others had been aware of the comments being made but did nothing to address or stop it.  The employer sought to rely on the statutory defence by claiming that they had taken reasonable steps to prevent the harassment by providing training to their employees on this topic some years prior. 

The Employment Tribunal held that the reasonable steps defence was not satisfied in this case and the employer remained vicariously liable for the harassment.  Their reasoning was that there were further steps the employer could have taken to avoid acts of discrimination and harassment from occurring, such as refresher training.  The employer appealed this decision.

The Employment Appeal Tribunal agreed with the decision and rejected the employer's arguments.  They were satisfied that the training which took place in 2015 had become stale and ineffective and this was evident from the fact that racist comments had been made and that no steps were taken by fellow colleagues to report it.  The training was therefore no longer at the forefront of their minds.  Training had been subsequently given to the employee who made the racial comments, which showed that the employer only took steps after the event and could have done more to avoid it altogether.

What does the decision mean?

The outcome of this case shows that even where employers have taken some reasonable steps to prevent an act from occurring in the workplace, if they have not taken all reasonable steps and provided up to date training that is effective, then the s.109(4) defence may fail and mean they are vicariously liable for the acts of their employees.

Employers should ensure that training is refreshed on a regular basis and investigate whether this is actually having a positive effect in the workplace and is serving its purpose.  Employers should aim to create a culture of zero tolerance of poor behaviour and ensure all employees feel happy and valued at work.  Only then will they perform to their best ability and help to enhance productivity and efficiency.

Whether you are an employer in need of guidance or an employee in a similar situation, we are here to help.  Please do not hesitate to contact our friendly Employment Law team on 01205 351 114 or 01522 814 638.