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Legal Corner: Can an employer defend itself where employees made inappropriate comments?

26th Feb 2021
Legal Corner: Can an employer defend itself where employees made inappropriate comments?

Whilst many of you will be familiar with the prohibition on discrimination contained in the Equality Act 2010, the Act also contains protection against harassment.

Harassment is defined as unwanted conduct related to a relevant protected characteristic (such as race, sex, disability, religion and belief, and several others), with the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Where an employee is found to have harassed someone during their employment, their employer will be responsible for their actions (i.e., vicarious liability) unless the employer can show that it took all reasonable steps to prevent harassment.

This month, the Employment Appeal Tribunal considered a case of harassment that had brought in the Employment Tribunal by Mr Gehlen, arising out of his employment with Allay (UK) Ltd. Mr Gehlen was employed as a Senior Data Analyst. He alleged that during his employment, he had been harassed by a colleague, Ian. Mr Gehlen, who is of Indian origin, was told to go and work in a corner shop, was subjected to comments on his skin colour and asked why he was in the country.

The Employment Tribunal accepted that these sorts of remarks were made regularly throughout Mr Gehlen’s employment. Ian was not called as a witness in the case, but the Employment Tribunal heard from a manager, to who Mr Gehlen had reported the harassment

. He had told Mr Gehlen to raise the issue with HR but had not reported the matter further himself. Mr Gehlen also alleged that another colleague had been present when the comments were made, and had said (in response) “Ian, man”; although that colleague denied it, the Employment Tribunal did not find his evidence credible, and concluded that he had taken Ian to task in a relatively relaxed way, but had not taken further action.

The Tribunal found that Mr Gehlen had been harassed as the comments from Ian were clearly unwanted and related to his protected characteristic of race. However, they also rejected the employer’s attempts to rely on the ‘reasonable steps’ defence, that although employees had been provided with training on race discrimination in the workplace, that had been several years before the events in question was clearly ‘stale.’

They considered that a reasonable step for the employer would have been to provide refresher training, which had not taken place until after the harassment of Mr Gehlen occurred.

The employer appealed; the Employment Appeal Tribunal noted that an Employment Tribunal needed to consider what steps had been taken to prevent harassment, whether they were reasonable and consider whether any other steps should reasonably have been taken. In assessing the training that had been provided, it was necessary to consider the nature of the training, the extent to which it was likely to be effective, and how long it might last.

Here, it was reasonable to conclude that the training had become stale, in circumstances where racist comments had been made by an employee, they had been heard by another employee who had not taken any proper steps to prevent or report it and had been reported to a manager who had not reported it either.

In addition, written evidence from Ian suggested that he thought that his comments were no more than ‘banter’, which clearly showed that whatever training he had undertaken had clearly faded from his memory. The employers’ appeal, therefore, failed.

This case is an important reminder to employers (and employees) of the important role they play in actively taking steps to prevent harassment (of any kind) from occurring in the workplace.

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Over 120 people attended a landmark conference on the media reporting of Islam and Muslims. It was held jointly by The Muslim News and Society of Editors in London on September 15.

The Muslim News Awards for Excellence 2015 was held on March in London to acknowledge British Muslim and non-Muslim contributions to the society.

The Muslim News Awards for Excellence 2015 was held on March in London to acknowledge British Muslim and non-Muslim contributions to the society.

The Muslim News Awards for Excellence event is to acknowledge British Muslim and non-Muslim contributions to society. Over 850 people from diverse background, Muslim and non-Muslim, attended the gala dinner.

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