Discrimination – An Employer’s Defence?

Posted on 16th March 2021

Employers can be responsible for the unlawful acts of discrimination of their employees even if such acts were committed without the employer’s knowledge or approval.

It is however open for the employer to argue in its defence that it took all reasonable steps to prevent the discriminatory conduct from occurring in the first place. This is commonly referred to as ‘the Employer’s Defence’.

When the Employer’s Defence is relied on, it is usually on the basis that the employer has equal opportunities and harassment policies and that the employees accused of unlawful discrimination had received appropriate relevant training.

 A recent case before the Employment Appeal (Allay (UK) Ltd v Gehlen) considered such an Employer’s Defence in relation to a claim by an employee that he had been harassed by a fellow employee on grounds of his race.

The case provides a useful indication of the approach that should be taken when employers raise the Employer’s Defence. It confirms that it is not sufficient for an employer to simply seek to rely on the existence of policies and procedures and staff training. The bar is much higher than that. In order to successfully rely on the Employer’s Defence, the employer must be able to demonstrate that staff training was comprehensive, rigorous and regularly refreshed and policies were clear, accessible and relevant.

Employers will need to be more proactive in the way equal opportunities policies and procedures are operated, monitored and applied in order to stand any chance of successfully running the Employer’s Defence. This could include, for example:

1.       Regular refresher training in equal opportunities and harassment.

2.       Conducting a review of current policies to ensure that they are clear, accessible and relevant to the issues of discrimination and harassment.

3.       Ensuring that management are familiar with the policies and procedures and the need for them to be applied effectively and consistently.

4.       Taking complaints seriously and enforcing any breaches of the policies through disciplinary procedures and appropriate disciplinary sanctions.

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