Leanne McKeown

The recent GB case of Allay (UK) Ltd v Mr S Gehlen (2021) demonstrates the continuing duty on employers to review on a regular basis their equality and diversity training and as such, ensure that their employees are trained and regularly participate in refresher training throughout the course of their employment.

The claimant was dismissed from his employment due to performance-related issues. He did not have two years’ continuous service, which is required to bring a claim of unfair dismissal in GB. As such, he brought claims of racial discrimination and harassment related to his race. These claims stemmed from racist comments that were directed towards him from a colleague.

The employer investigated the allegations and found that the comments were made, but argued that it had taken reasonable steps to prevent such behaviour as its workforce had undertaken equality and diversity training.

However, the Employment Tribunal and subsequently the Employment Appeal Tribunal held that the training which took place only two years previously had become stale and ceased to be effective given that the employee admitted to making the comments but thought that they were no more than ‘banter’ and other employees overheard the comments but failed to report these to HR.

On that basis, it was held that there were further reasonable steps the employer should have taken, such as providing refresher training on equality and diversity. Therefore, they were not entitled to rely on the ‘reasonable steps’ defence. As such, the claimant’s claim of harassment was upheld.

Whilst this case was heard in GB, employers in Northern Ireland should be mindful of the decision given Article 32(5) of the Race Relations (NI) Order 1997 contains a similar ‘reasonable steps’ defence and the onus is on the employer to prove that the steps taken were in fact reasonable in the circumstances.

• Leanne McKeown is an employment solicitor at Rosemary Connolly Solicitors in Warrenpoint, Co Down.