Allay (UK) Limited v Gehlen UKEAT/0031/20/AT - Lessons from the Pandemic

In a judgment handed down on 4 February 2021, the EAT dismissed an appeal brought by Allay (UK) Ltd in Allay (UK) Limited v Gehlen UKEAT/0031/20/AT. The case concerned the vicarious liability of the Allay (UK) Ltd for racial abuse of the Claimant by another employee and involved consideration pf whether or not the employer was entitled to rely on s. 109(4) Equality Act 2010 (EqA).

The Claimant was a Senior Data Analyst who was dismissed on grounds of performance in September 2017, and who after his dismissal raised a complaint of racial abuse which was substantiated following an investigation. At the ET, the tribunal rejected the defence put forward under s. 109(4) EqA which provides: ‘In proceedings against A’s employer B in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A -  (a) from doing that thing, or (b) from doing anything of that description.’ The burden of proof falls squarely on the employer in showing that all reasonable steps have been taken.

Despite noting that the employer had provided training in race discrimination and how it should be avoided in the workplace (which covered harassment related to race as experienced by C), the defence under s.109(4) was rejected by the ET because it had been provided several years before the events in question and ‘was clearly stale’. The ET considered that it would have been a reasonable step to have provided refresher training.

The EAT noted, citing paragraph 22 of Canniffe v East Riding of Yorkshire [2000] IRLR 555,that the analysis required when determining whether all reasonable steps have been taken involves consideration of 3 stages i.e., (1) identify any steps that have been taken (2)  consider whether they were reasonable and (3) consider whether any other steps could have reasonably been taken.

The EAT rejected a written submission on behalf of the employer that reasonableness of a step cannot be equated with it effectiveness as a ‘brave submission’. This submission was modified in oral argument to the extent that it was then submitted that effectiveness is not the sole determinant of whether a step is reasonable. This submission was also rejected.

In dismissing the appeal, the EAT made an analogy with the coronavirus vaccination programme. At paragraph 36 of the judgment, it was stated that in the vaccination programme ‘we are interested not only in whether a vaccine elicits an immune response’ but also how long the response will last. This was equated with diversity training i.e., there had to be consideration not only as to whether it was effective training but also as to how long it would be effective for.

The EAT agreed with the ET that the training provided by the employer had ‘gone stale’, and considered that refresher training would have been a reasonable step for the employer to have taken. The lesson for employers is that a single ‘shot’ of diversity training without consideration of ‘booster’ doses will not likely offer immunity under s. 109(4) EqA.