And speaking of musings brings me to the not so reasonable case of Allay (UK) LTD v Gehlen 2021, in which the Employment Appeal Tribunal determined whether the employer could rely on the “all reasonable steps” defence.

Mr Gehlen joined Allay (UK) LTD as a Senior Data Analyst in October 2016 until his dismissal in September 2017 for performance reasons.

Mr Gehlen describes himself as being of Indian origin and following his dismissal, he complained about racist comments made by a colleague, Mr Pearson, during his employment. These included comments that he should work in a corner shop, references to his “brown skin”, comments about him driving a Mercedes “like all Indians” and asking why he was in the country.

Following his dismissal, Mr Gehlen filed claims for direct race discrimination and harassment relating to race to the Employment Tribunal.

It was found that when Mr Pearson had made the racist comments he was subsequently given further Equality and Diversity training. However, it was also found that managers and colleagues had failed to respond appropriately when they became aware of the comments.

Allay sought to rely on the “all reasonable steps” defence under section 109(4) Equality Act 2010. It pointed to its equal opportunities and anti-bullying and harassment policies, together with equality, diversity, bullying and harassment training provided in 2015.

The ET rejected the direct discrimination claim but upheld the harassment claim and awarded Mr Gehlen £5,030.63 in compensation.

The ET accepted that Allay had relevant policies in place and that Mr Pearson, managers and colleagues had received appropriate training. However, it found that the training, provided in 2015,  had become “clearly stale” by the time the harassment took place and should have been refreshed.

The ET considered that the need for refresher training was demonstrated not only by Mr Pearson's continued racist comments, but also by the response of managers and colleagues. Their failure to report or escalate the behaviour appropriately suggested that the lessons from the original training were no longer being followed in practice.

The ET therefore concluded that refresher training would have been a further reasonable step for Allay to take. As it had not done so, Allay could not rely on the “all reasonable steps” defence.

Allay appealed to the Employment Appeal Tribunal (EAT), challenging this.

The EAT dismissed the appeal.

It confirmed that the burden is on Allay to show that it took “all reasonable steps” to prevent the discriminatory act. This is a high threshold, not satisfied simply because an employer has policies and training in place. When assessing whether the defence applies, the ET should consider:

• what steps the employer had taken;
• whether those steps were reasonable and effective; and
• whether there were any further reasonable steps the employer should have taken.

The EAT agreed with the ET that the 2015 training had become stale and ineffective. Importantly, this was not based solely on Mr Pearson's conduct. The fact that managers and a colleague had also failed to act appropriately when they became aware of the racist comments provided further evidence that the training was no longer having the necessary effect.

The EAT also rejected Allay's argument that the ET had simply treated “reasonableness” as being the same as “effectiveness”. The ET was entitled to consider the effectiveness and durability of the training when deciding whether further reasonable steps were required.

There was also nothing to suggest that refresher training would have been ineffective. In fact, Allay provided further training following the complaint, supporting the ET's conclusion that refresher training was a reasonable step that could have been taken earlier.

The appeal was therefore dismissed. Allay had not demonstrated that it had taken all reasonable steps and could not rely on the statutory defence.

This case is a useful reminder that having policies in place and providing training once will not necessarily be enough to protect an employer from liability.

Employers should:

• Keep training up to date: Equality, diversity and anti-harassment training should not be treated as a one-off exercise. Consider whether refresher training is needed and keep appropriate records.
   
• Make sure managers know what is expected of them: Managers should understand how to recognise inappropriate behaviour and what action to take if concerns are raised.
   
• Act on concerns rather than passing the responsibility to the employee: If a manager becomes aware of potential harassment, they should take appropriate action and escalate the issue where necessary.
   
• Check that policies and training are working in practice: It is not enough for the right documents to exist if employees are not following them.
   
• Use incidents as an opportunity to review training: If an incident suggests that employees have forgotten or misunderstood previous training, further training or other preventative measures may be appropriate.

The key message is that the “all reasonable steps” defence is not a box-ticking exercise. Employers need to be able to show that their policies, training and management processes are not only in place, but remain effective in practice.