"It was just banter" - four little words that send shivers down the spine of HR managers tasked with dealing with incident(s) of harassment.
In this article, we discuss the importance of rigorous anti-harassment policies, training and practice in the workplace, using the recent Allay (UK) Ltd v Gehlen case as an example.
For the purposes of the Equality Act 2010, anything done by an employee in the course of employment is treated as having also been done by the employer (section 109(1)), regardless of whether the employee's acts were done with the employer's knowledge or approval (section 109(3)). However, under section 109(4) there is a statutory defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or from doing anything of that description.
But how does an employer surmount the "all reasonable steps" hurdle?
Well, the bar is set high. Recently, the Employment Appeal Tribunal (EAT) has highlighted the need for employers to provide substantial training on discrimination issues both at regular intervals and on an ad hoc basis if it becomes apparent that prior training was ineffective or has been forgotten.
In the case of Allay (UK) Ltd v Gehlen, the employer failed to establish this statutory defence. Mr Gehlen complained that he had been subject to racial harassment by a fellow employee. An internal investigation found that the colleague had made a number of racist comments. Two managers were aware of the racist comments but took no action other than a very minor rebuke without reporting the incidents. The perpetrator and the managers involved had all undertaken the employer's anti-harassment training within the two years before the incidents.
In rejecting the employer's defence, the EAT reminds employers that the purpose of the defence is to encourage employers to take significant and effective action to combat discrimination. It is a high threshold only available if the employer can show that they have taken all reasonable steps.
The provision of training on equality and harassment is not simply a tick box exercise. If an employer wants to succeed in running the employer's defence it is likely to have to show that, alongside any other relevant steps, the training provided to employees was comprehensive, rigorous, regularly refreshed and is being effectively applied in practice by those who have undergone it. Evidence of effectiveness may not only be evidenced by incidents being prevented, but also by managers taking appropriate action and reporting to HR if incidents do occur.
How frequently staff training will be needed will depend on the particular case. In this case, training which took place less than two years before was found to be ineffective given one of the attendees, the perpetrator, still appeared to believe that his racist remarks were just 'banter', and managers were aware of the racist comments but took no or inconsequential action. Given that managers were aware that harassment was taking place, it would have been a reasonable step to provide refresher training.
Using a topical analogy the EAT said:
"Considering this matter during the Coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last."
While the focus in this case was the ineffective training, the EAT also criticised the employer's policies, as the equal opportunity policy did not expressly refer to harassment and the anti-bullying and harassment procedure did not mention race.
Can an employer ever surmount the "all reasonable steps" hurdle?
While the bar is set high, it is not impossible to surmount. Back in 2006, the EAT held that the existence of a good and proper policy that is conscientiously implemented may, depending on the facts, be sufficient (Caspersz v Ministry of Defence). In that case,
- the employer had a well written and comprehensive "dignity at work" policy;
- the policy was well promoted, being reviewed and republished on a regular basis; and
- the employer had followed the procedures outlined in the policy including managers reporting incidents without delay and prompt investigation made where a breach of the policy was alleged.
The EAT also stressed in that case that the mere existence of a policy is not sufficient, and that it is essential that the employer take practical steps to implement it.
What should employers do?
1. Promote policies
- Put in place comprehensive anti-discrimination, anti-harassment and bullying policies.
- Take steps to ensure that the policies are properly implemented, promoted and supported by the highest level within the organisation.
- To bring home to individuals the unacceptability of harassment and bullying, remind staff that harassment and bullying amount to gross misconduct for which dismissal may result, and that the individual perpetrator may face a claim resulting in personal financial liability to the victim.
- Ensure all employees are aware of the policies and their implications through a comprehensive training programme, which allows proper exploration and testing of staff understanding.
- Ensure managers and supervisors are trained in how to handle and report equal opportunities and harassment issues promptly and appropriately.
- Ensure policies and training are regularly reviewed and refreshed.
- Training should be conducted regularly but be prepared to adjust timescales. If there is cause to believe that employees have forgotten or not taken on board the training, it should be refreshed sooner than originally scheduled.
4. Follow through
- Take prompt action whenever there is evidence of harassment or bullying behaviour, whether or not anyone has complained.
- Ensure that reported incidents are dealt with promptly, appropriately and effectively. Take any complaint seriously.
5. Follow up
- Check that the policies and training are effectively applied in practice by those who have undergone it, not only evidenced by incidents being prevented but also by managers taking appropriate action and reporting to HR if incidents do occur.
- After any incidence has been resolved, check that working relationships have settled down and there are no recriminations.
Fingers crossed, HR will never have to hear "it was just banter" again.