Employers can be liable for wrongdoings carried out by their employees during the course of their employment because of a legal principle known as vicarious liability.
This is a huge concern for employers in cases of discrimination, harassment, victimisation and whistleblowing claims, as it can lead to large awards for compensation because of poor conduct by staff that the employer would not, in most cases, have authorised or condoned.
Employers can defend such claims by arguing that they did everything that was reasonably practicable to prevent the unlawful treatment from taking place. This can be achieved by demonstrating that the relevant policies are in place and that the employees are trained on those policies.
However, the recent case of Allay (UK) Limited v Gehlen UKEAT / 0031 / 20 shows that it is not sufficient for employers to simply have a policy and provide training for this defence to succeed. The ruling declared that an employer did not have a valid defence to an employee’s claim that it was vicariously liable for his racial harassment by another employee because the training provided was stale.
The employee in this case is of Indian origin.
The employee commenced employment with the Company on 3 October 2016 as Senior Data Analyst.
The employee was dismissed on 15 September 2017.
After this, the employee complained that he had been racially harassed by a colleague during his employment. The company investigated and found that the comments had been made by the colleague, who classed them as banter.
The employee brought Employment Tribunal claims for race discrimination and racial harassment. The Employment Tribunal upheld the employee’s claims and the Employment Appeal Tribunal upheld the Tribunal’s decision.
The Tribunal had found that the racist comments were made and that one of the claimant’s colleagues and two managers witnessed the comments but did nothing other than mildly rebuke the harasser.
The Employment Appeal Tribunal agreed with the Employment Tribunal that the company could not rely on stale equality and diversity, and bullying and harassment training from 2015 to show that it had taken all reasonable steps to prevent the harassment. It noted that the fact that the company had provided refresher training after the investigation showed that the training did need refreshing.
Discrimination and whistleblowing are extremely complicated legal areas and compensation for breaches can be significant.
Having the right policies in place and ensuring that regular training is provided in these areas helps ensure that employees are aware of their legal obligations and therefore reduces their risk of successful claims against them as individuals. It also provides the employer with an invaluable defence to claims brought against it as a result of deliberate, unlawful actions by rogue employees.
This case should heighten employers’ awareness of the need to urgently review their policies and procedures to ensure that the relevant policies are in place and to ensure that training is delivered to staff and updated regularly.
Moore Kingston Smith HR Consultancy supports our clients by ensuring that they have up-to-date policies in place to minimise legal risk. MKSHRC also delivers equality, whistleblowing and management training and refreshers to help clients and their employees keep up to date with legal requirements and minimise their risk.
Should you require any support, the team at MKSHRC would be pleased to help.