The case of Allay v. Gehlen
This ViewHR blog is the latest in our series looking at case law in the field of employment law, and what potential impacts this may have for employers. In this edition, we will focus on one important case in particular heard by the Employment Appeals Tribunal (EAT) earlier in 2021: Allay (UK) Ltd v Mr S Gehlen.
Allay (UK) are an insurance company, and Mr Gehlen was employed there as a Senior Analyst. His employment was terminated on the grounds of poor performance, and following his dismissal, he submitted a complaint, stating that he had been subject to harassment on the grounds of his race by one of his peers.
It was found that the other employee had indeed made racist comments on a regular basis about Mr Gehlen. For example, comments had been made to the effect that Mr Gehlen, who is of Indian origin, should work in a corner shop, and that he drove a Mercedes “like all Indians”. He had also been asked why he was in the country. It was found that Mr Gehlen had reported the racist remarks to a manager, but that the matter had not then been reported to HR or taken any further. It was further identified that two of Mr Gehlen’s peers had overheard some of the comments being made, but that they also took no positive action to address or report those.
Allay (UK) Ltd sought to argue in its defence that it had taken all reasonable steps to prevent the harassment by having in place equal opportunities and anti-bullying policies and had provided relevant training to employees.
However, the original Employment Tribunal and subsequent EAT judgements found that staff equality training had become stale after 20 months. The employer’s failure to refresh the training meant it couldn’t rely on the “reasonable steps” defence to a race harassment claim. As Mr Gehlen had been subject to the harassment, and this had been witnessed by others who had taken no action, this provided evidence that the training had ceased to become effective in the time that had passed since delivery. Further, it was found that the training and company policies did not make appropriate reference to race.
This is a shocking case in terms of the blatant racial harassment that Mr Gehlen was subjected to. However, it also offers a stark warning to employers about the need to ensure that they arrange for employees to undergo regular, good quality training and refreshers on the topic of harassment, and associated topics including bullying and discrimination. Here at ViewHR, we recommend that employers implements annual training/refreshers, plus an annual review of their policy (this is reiterated by this case).
The ViewHR team regularly undertake investigations into bullying and harassment complaints, and so if you have been made aware of employee concerns and are unsure about how to respond to these, please contact us for support. We are also able to deliver comprehensive training, bespoke to the needs of your workforce. Please contact us for an initial discussion to find out more.
And if you are keen for more case law updates, please check out our other recent updates here: https://viewhr.co.uk/employment-case-law-update-september-2021/ and here: https://viewhr.co.uk/employment-case-law-update-2021-so-far/, and come back soon for our next instalment!