Education Bulletin ' Spring 2021

• Published date: 09 April 2021
• Subject Matter: Employment and HR, Consumer Protection, Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Health & Safety, Education
• Law Firm: Wrigleys Solicitors
• Author: Mr Chris Billington and Graham Shaw

Welcome to our Spring education bulletin

As schools return from lockdown and prepare for another summer of exam uncertainty, we highlight updates and some of the legal issues of working within a pandemic.

We are continuing to hold webinars, in place of our education briefings, on topics relevant to schools. To assist, recorded webinars are available for you and your colleagues, governors, trustees, and academy members to access at times that best suit you.

As always, we really welcome feedback and suggestions for further topics that may be of interest to you, so please get in touch.

Employer should have refreshed equality and diversity training as a reasonable step to prevent racial harassment

EAT: assessment of whether employer took all reasonable steps to prevent discrimination should include deciding if a step is likely to be effective.

Under the Equality Act 2010, employers can be vicariously liable for an employee's discrimination, harassment or victimisation of another person. Employers can defend such claims on the basis that they took "all reasonable steps" to prevent the unlawful act from happening. This is sometimes known as "the statutory defence".

What are reasonable steps to prevent discrimination in the workplace?

Reasonable steps might include putting in place and regularly reviewing equality and diversity and anti-bullying and harassment policies; providing regular training on these issues to all staff; ensuring that disciplinary policies and workplace rules make clear that discriminatory acts will be a disciplinary matter; ensuring that managers are aware of how policies and procedures should work in practice; and taking rigorous steps to deal with breaches.

It is of course advisable to deal rigorously with any allegations of harassment or discrimination once they are received, investigating the matter and following a grievance and/or disciplinary procedure as appropriate. However, "reasonable steps" must be undertaken before the discriminatory act; retrospective action will not assist an employer in using the statutory defence.

There are very few reported cases which consider the "reasonable steps" defence. A recent EAT case has shed light on how tribunals should approach the assessment of whether an employer took all reasonable steps and can therefore avoid liability for an employee's unlawful actions.

Case details: Allay (UK) Ltd v Gehlen

Mr Gehlen, an employee of Allay, was dismissed following performance concerns shortly before he reached one year's service. He brought claims including harassment related to race to an employment tribunal.

The tribunal accepted Mr Gehlen's evidence that a colleague had regularly harassed him in relation to his Indian origin, making comments about his skin colour, suggesting that he should go and work in a corner shop, and asking him why he was in the country. The tribunal also found that Mr Gehlen's colleagues had heard these comments and taken no action. When Mr Gehlen reported the harassment to a manager, the manager told the claimant to make a report to HR, but took no action to report or deal with the issue himself.

Allay argued that it had taken all reasonable steps to prevent the harassment from taking place and that it was not therefore liable for the harassment. It pointed to its equal opportunity policy, anti-bullying and harassment procedure, and the fact that the harasser had undertaken equality training 20 months before Mr Gehlen began to work for Allay.

The tribunal did not accept that Allay had taken all reasonable steps. It found that the...