Who Is Responsible For Discrimination In The Workplace?

A recent employment law case has brought to light just how important anti-harassment and diversity training is in the workplace. The case of Allay (UK) Ltd v Mr S Gehlen was concluded that the training that had been provided to the perpetrator of race harassment, and a number of other employees, including two managers who failed to report matters to HR, had become stale and required refreshing. 

In this case, the Employment Tribunal dismissed a claim of direct race discrimination, however, it upheld a complaint of harassment related to race. The claimant was awarded £5,030.63 in compensation and the employer, Allay (UK) Limited, was responsible for paying this compensation, even though they were not the ones conducting the discriminatory behaviour. 

Throughout the claimant’s employment, he was subjected to racist comments from another colleague. These comments were to the effect that the claimant should go and work in a corner shop. The claimant was asked why he was in the country and references were also made to the claimant driving a Mercedes car like all Indians. 

The respondent, Allay (UK) Limited, relied solely on the defence provided by Section 109(4) of the Equality Act 2010; 

(4) In proceedings against A’s employer (B) in respect of anything alleged to have

been done by A in the course of A’s employment it is a defence for B to show that B

took all reasonable steps to prevent A-

(a) from doing that thing, or

(b) from doing anything of that description.

Whilst the Employment Tribunal accepted that the respondent had an equal opportunity policy as well as an anti-bullying and harassment procedure in place, and it was accepted that all employees had received training by the respondent, this training was clearly stale. Therefore, the respondent had not taken all reasonable steps to avoid discrimination of race in the workplace as a reasonable step would have been to refresh the training. 

There are multiple factors that resulted in the Employment Tribunal concluding that the training was stale. In addition to the racist comments being made, the fact that managers were aware that harassment had taken place shows that more needed to be done to prevent harassment. Not to mention, the respondent even knew that harassment was taking place but did not take action to prevent it, again showing that further training was required. 

What does the law say?

Whenever racial discrimination or racial harassment occurs in the workplace, an employer is potentially liable. Employers will usually be held responsible for the discriminatory acts carried out by their employees because of the provisions of section 109 Equality Act 2010;

(1) Anything done by a person (A) in the course of A’s employment must be treated

as also done by the employer.

However, as in the case above, an employer can use the defence that they took all reasonable steps to prevent the discriminatory acts. This case clearly shows that simply having a policy in place and providing one-off training is not enough though. Employers should be providing refresher training and updating their policies over time, especially if they want to be able to rely on the defence under section 109(4) of the Equality Act 2010 should a discrimination claim or harassment claim ever be taken to the Employment Tribunal. 

What should employees do if they are being discriminated against?

Should you be the victim of discriminatory comments or behaviour in the workplace due to your race, you can turn to the staff handbook your employer has in place that includes the Equal Opportunity Policy and procedure, and the Harassment policy and procedure. Often, within this handbook, you will find the details of who you should raise the matter with. For example, in the case above, the handbook stated that a victim of harassment should raise the matter with the line manager or another manager if the concern relates to the line manager.

It is always beneficial to try and resolve the problem with the help of your employer, whether you do this informally or you decide to raise a formal grievance. However, in the event that no further action is taken to address the matter and you have not been able to reach an agreement with your employer, you may be able to take action against your employer. 

When deciding whether or not to take legal action at an Employment Tribunal, it is beneficial to get some professional legal advice. You can turn to an independent organisation like Acas for this advice or you can reach out to an employment law specialist, like a solicitor or a lawyer. If you seek advice from an employment law discrimination solicitor, they will be able to advise you on how strong your case is and whether you have enough evidence to win your claim. 

It is important to note that there is a time frame for discrimination claims and most claims will need to be filed within three months less one day from the date the discrimination occurred. Therefore, it is important to speak to an employment law specialist as soon as possible to prevent any issues in regards to the Employment Tribunal not accepting your case.

An Employment Tribunal will then be tasked with determining whether the treatment you experienced was in fact discrimination and they will decide what you should be awarded for your mistreatment. In addition to awarding you compensations, an Employment Tribunal can also recommend that your employer does things such as; sends you a written apology, makes changes to their current policies, provides training to employees and implements new policies.

If an Employment Tribunal chooses to award you compensation, this will likely be for ‘injury to feelings’. The amount you can be awarded for this type of compensation is covered by something called the ‘Vento Bands’. There are three bands; lower, middle and top, and they award varying amounts of compensation in different circumstances.

Searching for an employment law discrimination solicitor in London?

If you think you have been the victim of race discrimination and you would like to speak to an employment law discrimination solicitor in London, do not hesitate to contact our team at Nationwide Employment Lawyers today. We specialise in discrimination law and discrimination issues, and we can provide you with the comprehensive assistance you require. Our team of experienced employment law solicitors, employment law barristers and senior employment law Advocates will be able to assist you with your claim, and we will be here to support you throughout all legal proceedings when you have been treated unfairly at work. 

We are very proud of our outstanding record representing a vast range of clients and we can assure you that we will be totally committed to achieving the best possible result for your case from start to finish. Whether you are the victim of direct discrimination, indirect discrimination, harassment or victimisation, you can trust that you will be in the best hands with our experienced team. We provide an extremely high standard of service and we really are the best law firm in London to contact if you need help with an employment law claim.