Potentially, but it will depend on the circumstances.
An employer can avoid liability for acts of harassment committed by its employees if it has taken all reasonable steps to prevent it happening. The EAT in a recent case (Allay v Gehlen) has, however, held that harassment training was no longer effective to prevent harassment in the workplace where it had become stale. As such, the “all reasonable steps” defence failed.
The EAT commented:
“If training involved no more than gathering employees together and saying "here is your harassment training, don't harass people, now everyone back to work", it is unlikely to be effective, or to last.”
For the “all reasonable steps” defence to succeed, the employer must prove that they have taken all reasonable steps to prevent the harassment - a high threshold. The defence is there to encourage employers to take significant and effective action to combat discrimination.
In deciding whether “all reasonable steps” have been taken and their effectiveness, the Tribunal will look at how effective the anti-harassment training was in practice, when the training took place and if there were any further reasonable steps to take, for example, refresher training. The less “effective” the training the more quickly it becomes stale.
If employers become aware of harassment, the EAT held that this will serve as a notification to renew or refresh harassment training.
Nick Benton comments:
“This recent case highlights the importance of having appropriate policies in place (equal opportunities and harassment) as well as up to date and effective anti-harassment training. Doing so may give the employer the option of the reasonable steps defence if faced with a harassment claim.”
Howes Percival offers training on a wide range of employment issues that can be tailored to your workplace, including interactive training on Equality and Diversity, which includes an anti-harassment section. To discuss the case above or any training requirements in more detail contact a member of the team here.
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