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In defence of discrimination

In defence of discrimination

Under the Equality Act, an employer is responsible for anything done by an employee during their course of employment.  So, if a colleague uses discriminatory language towards another, the employer can be liable for it.

However, all is not lost for an employer as there is a defence available.  If the employer can demonstrate they have taken all reasonable steps to prevent the discrimination from taking place, they can avoid liability.  Here, an employer will need to show what steps they had taken, that these steps were reasonable, and they could not have taken any other reasonable steps that would have stopped the discrimination happening.

Question:   So, will having an equal opportunities policy and providing equality training be enough to defend a discrimination claim?

 Answer:  Maybe, it depends on how effective it is at the time.

A recent case in the Tribunals, Alley UK Ltd v Gehlan, has highlighted this point.

The employee and Claimant, Mr Gehlan, was of Indian origin and had been harassed by a colleague at work for almost a year due to his skin colour, not ‘working in a corner shop’ and driving a certain car ‘like all Indians’.   After being dismissed and raising a grievance, the employer found he had been subjected to racist comments.  The harasser, who described it as ‘banter’, was made to undergo further equality and diversity training.

It was found by the Employment Tribunal that the Claimant had been regularly harassed and discriminated against, and also that two managers had been aware of what had been going on but did nothing to stop it.

As the company had an equality policy in place and had provided equality and diversity training to all staff, they said they had taken all reasonable steps to prevent the discriminatory acts at work.

The Employment Tribunal did not agree and found the policy was not being followed (by the colleague and managers) and that the training was ‘stale’ and should have been ‘refreshed’.  Mr Gehlan was awarded over £5,000 in compensation.

The employer appealed to the Employment Appeal Tribunal, but didn’t succeed.  The EAT found that the policy and training were not ‘impressive’ and that they had not acted in accordance with it by letting the situation continue.  Further, the EAT commented that more findings on the effectiveness of the policy content and training would have been welcome.

What does this mean?

When looking at these types of cases, an Employment Tribunal is likely to look at:

  • What does the policy actually say? Is the policy wording clear?
  • How far does the policy go to describe and detail who is protected and why?
  • Is it clear as to what is or is not acceptable behavior and why?
  • When was the last time workplace equality policies were reviewed and updated?
  • How are employees made aware of the policy and how can they access it?
  • How was the training delivered i.e. face to face, group setting, or online?
  • How does the employer know the training has ‘sunk in’?
  • When did the training last take place? Is quality refresher training needed?
  • Is the policy being followed by managers? Do they know what they need to do when they become aware the policy may not have been followed?
  • Do the managers need additional training?
  • Have records been kept of when the policy has been reviewed, communicated to employees and when any training was given?

What can we do?

Employees have the right to be treated fairly in the workplace free of discrimination against race, age, disability, religion, sexual orientation, sex or gender assignment, or other beliefs.

Hattons Solicitors provide a free initial consultation with an employment law solicitor.  We can review your particular circumstances and help to provide the protection you need.

Posted on: 12/Feb/2021 Posted in: Employment Law
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