We supported SHL to run a compliant collective consultation process, following the need to...
Harassment is defined in s.26 of the Equality Act 2010 as being when one person engages in “unwanted conduct which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. The conduct has to relate to one of the protected characteristics covered by the Equality Act, such as age, sex, race, disability or religion.
Importantly, in order for an employee to show that they have been harassed, they do not need to show that the perpetrator intended for their actions to have such an effect, just that a reasonable person would have felt that it was harassment.
Most employers will be aware of what harassment is and the fact that employees have a right of action against the organisation, if they do experience harassment at work, for example by a colleague or manager. The harassed individual will usually bring a claim against the employer either instead of or in addition to the harasser.
An employer will be liable for the discriminatory acts of its employees towards each other unless it has taken all reasonable steps to prevent such conduct (section 109(4) Equality Act, often known as the “statutory defence”). This is a very important defence for employers and one which can place 100% liability on the alleged wrongdoer.
In the case of Allay (UK) Limited v Gehlen the Employment Tribunal accepted that Mr Gehlen had been the subject of a number of racist remarks by a colleague. Allay was therefore liable unless it could establish the statutory defence.
When Allay sought to rely on its equality training as a defence to Mr Gehlen’s allegations of harassment, it was found lacking. Allay stated that the alleged wrong-doer had undertaken equality training 1 year prior to the date of the allegations and further, that when it heard of the allegations it ordered the colleague undertake further equal opportunities training to avoid this happening again.
Was this response enough to satisfy the statutory defence?
No. This was because the earlier training was “clearly stale”, according to the EAT. At the time of the harassment, it had been over a year since the harasser had undertaken any training and there was no refresher training planned at that time. Also, the EAT noted that colleagues of Mr Gehlen who were aware of the offensive comments made chose to do nothing. This called into question both the effectiveness of the training itself and also whether there was any monitoring of its effectiveness.
Discrimination and harassment cases cost time, money, and reputation, not to mention the impact it can have on the victim. Setting aside some time to reflect on the subject of the statutory defence now, and whether there is more that could be done in your organisation (and acting on it if so) could be time well spent. Some things to consider:
Review your suite of equal opportunities policies
- Are they up to date and comprehensive?
- Do your harassment policies actually cover harassment? Are they all about gender or do they cover the other protected characteristics too? Allay’s equal opportunities policy made no reference to harassment. There was a similar omission in its anti-bullying and harassment policy, which only mentioned harassment in its title, and made no reference to race.
- Regularly remind workers where to find policies and procedures, and have systems in place to ensure that they have read and understood them.
Revisit your equality and diversity training
- How long ago was your last harassment training and who attended?
- Have you had significant staff turnover since then?
- Have there been any instances since then which show that the relevant messages were not taken on board by those present (either as harassers or bystanders)?
- If the training was recent, was it sufficiently comprehensive - will workers understand the key concepts of discrimination and harassment? Did it contain relevant examples to effectively illustrate the different protected characteristics as well as the kinds of discrimination and harassment that can occur in the workplace? If not, consider updating it. If some time has passed since the last organisation-wide training, consider a new session or refresher.
- Consider providing tailored training to those charged with investigating complaints of discriminatory treatment so that they understand the subtleties in this area - investigating allegations of harassment is complex and needs careful handling.
- Consider putting in place a process for assessing how effective training is and how long that lasts, perhaps by testing attendees on their response to case studies after training and again at regular intervals.
Finally, consider setting aside time to reflect on the subject of the statutory defence, perhaps annually, and whether there is more that could be done (and acting on it if so). Keeping a record of this reflection time and actions taken as a result of it should take you a very fair distance towards satisfying the statutory defence in the future.
If you need further advice on discrimination and harrassment please call us now for a friendly chat about your needs.