If an employer can show that it had taken "all reasonable steps" to prevent an employee carrying out unlawful discriminatory actions, then it can defend a subsequent claim arising out those actions, for example by showing that it had provided diversity training for its employees. However, as the case of BC and Allay (UK) Ltd v Gehlen has demonstrated, such a defence does not always succeed. Here the Employment Appeal Tribunal (EAT) decided that the relevant training was two years old and 'stale'.

The employee in this case, Mr Gehlen, who described himself as being ‘of Indian origin’ was subjected to racist comments.  Other employees heard these including two managers who had failed to report matters to HR.  They had all received diversity training over a year prior to the comments which were made. Mr Gehlen brought an employment tribunal claim for harassment related to race. His employer argued that it had taken all reasonable steps to prevent the harassment due to providing relevant diversity training. 

The employment tribunal disagreed. It heard that the employee who had made the racist comments thought that what he was doing was no more than ‘banter’ and concluded that the managers did not know what to do either when they observed harassment, or when it was reported to them. While the tribunal accepted that the employer had an equal opportunity policy and an anti-bullying and harassment procedure, and that the employees had undergone equality and diversity and bullying and harassment training it concluded that the training had faded from their memories. It had been delivered over a year prior to the harassment and was ‘clearly stale’ and in need of refreshing. The employee who had made the comments was provided with further training after the event, but a reasonable step would have been to provide refresher training more widely.

The employer appealed to the EAT arguing that the effectiveness of the equality and diversity training was irrelevant to the question of what is a "reasonable step". The EAT was not persuaded and dismissed the appeal. It agreed with the tribunal's decision and also rejected the employer's defence. The evidence of continuing harassment in the workplace reflected poorly on the quality of the training, which in turn harmed the employer's defence. It was relevant to consider:

• how effective the steps that had been were likely to be when taken, and how effective they are in practice. Here the tribunal clearly concluded that the training that the employees had received was stale as demonstrated by the subsequent racist comments and managers failing to report them when they were aware
• whether there were other reasonable steps that should have been taken, and if so, would they be effective so that to take such further steps are reasonable. 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 that this would be the case.

Key takeaway points

This case indicates that, going forward, tribunals will be more apt to scrutinise the quality and efficacy of the training to employees relied on by businesses as a 'reasonable steps' defence to harassment. It would be good practice to:

• carry out training on a regular basis, not just a one-off every few years. This should be documented
• consider the quality of the training so that if racist/sexist/homophobic banter is still rife, this should be a red flag that you have not done enough to educate staff 
• if harassment still occurs after training has been provided, and a reasonable period has elapsed, you should provide a refresher.