Allay (UK) Ltd v Gehlen UKEAT/0031/20/AT

Appeal against the ET’s decision upholding the Claimant’s claim of harassment related to race. Appeal dismissed.

The Claimant was dismissed by the Respondent, after less than a year's employment, by reason of his performance. Following his dismissal, he raised a claim of race harassment by a fellow employee; an internal investigation found that the employee had made racist comments, and that employee underwent further Equality and Diversity training. On the Claimant's claims of direct race discrimination and harassment related to race, the ET upheld the latter claim only; in doing so, it rejected the Respondent's defence under section 109(4) of the Equality Act 2010 ("EqA"), concluding that the Respondent had not taken "all reasonable steps" to avoid discrimination in the workplace, since a reasonable step would have been to refresh its training. The Respondent appealed on the ground that it was unlawful and/or perverse for the ET to fail to properly engage with the statutory defence at section 109(4) EqA.

The EAT held that the ET did not err in its approach to the law or reach a determination that came close to being perverse. While the ET could have made more detailed findings, it was entitled to conclude that the training was stale and was no longer effective to prevent harassment; as a result, the Respondent could not rely on the defence under section 109(4) EqA.

Published: 11/02/2021 13:56

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