In a recent case, the employment tribunal ruled that the employer could not rely upon the “reasonable steps” defence to harassment where it had provided training to the perpetrator but this had not been updated.
The tribunal said that the training had become “stale” and needed refreshing. In Allay v Gehlen, the claimant was subjected to racist comments on a regular basis and claimed harassment relating to race. As a general principle, employers will be liable for the acts of discrimination carried out by their employees unless they can demonstrate that they have taken all reasonable steps to prevent this and this is generally known as the Due Diligence or Reasonable Steps defence.
The employer relied upon the defence but this was rejected as the training had been given over a year before the harassment had taken place. Racist comments continued and managers failed to report them when they became aware.
This case demonstrates that it will be very difficult for employers to rely effectively on the reasonable steps defence unless training is given and repeated on at least an annual basis. In this particular case, the employer fell foul of the law because not only were racist remarks repeated but managers overhearing such remarks did not take action to prevent harassment taking place.
