UK Employment Tribunal Decisions

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

Summary: An employer was unable to rely on the defence contained in section 109(4) of the Equality Act 2010 that it had taken all reasonable steps to prevent an employee from being the subject of racial harassment. The Employer pointed to the fact that it had delivered a training session on equality and diversity to its workforce some 20 months prior to the acts taking place. The Employment Tribunal was presented with evidence that this training was ‘stale’, insubstantial and in fact that the employees had forgotten about it! The Tribunal subsequently concluded that the Employer had not taken all reasonable steps to prevent the racial harassment.

Action Point: The defence of ‘reasonable steps’ is contained at Article 32(3) of the Discrimination (Jersey) Law 2016 so this judgment could be of persuasive effect if a similar fact pattern was presented before it. This case illustrates that in determining whether the defence is made out, tribunals will consider the steps that have been taken by the employer in some detail, including the quality of any training, together with how recently it was provided. Ultimately it confirms that an employer must clear a high threshold if it is to establish that it has taken all reasonable steps.

Cumming v British Airways plc (UKEAT/0337/19)

Summary: The Employer had a policy that any aircrew who took three days’ unpaid parental leave would lose one paid rest day during the month those unpaid parental leave days were taken. The Claimant argued that this policy indirectly discriminated against women. At first instance, the Employment Tribunal rejected the Claimant’s claim on the basis that the policy applied equally to all aircrew so there was no particular disadvantage to women. This was overturned on appeal. The Appeal held that when determining whether a policy such as in the present case was indirectly discriminatory consideration should be given as to whether the policy itself put women at a particular disadvantage, not whether the policy applied to all employees in the pool equally.

Action Point: This tribunal decision highlights the importance of analysing policies prior to their implementation to determine whether its impact particularly disadvantages any employees who have protected characteristics

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