Equality & Diversity – protecting your organisation from liability
Equality Act 2010 – the protected characteristics ● ● ● ● ● ● ● ● ●
sex race (including national origin) disability religion or belief sexual orientation age pregnancy and maternity gender reassignment marriage and civil partnership
Types of Discrimination ●
Direct Discrimination
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Indirect Discrimination
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Harassment
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Victimisation
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Discrimination arising from a disability and the duty to make reasonable adjustments
Claims • Can be made:• by unsuccessful job applicants • by current employees e.g. if unsuccessful for promotion, if bullied or harassed • by workers • by employees who have left
• No upper limit on amount of compensation (requirement of EU law) & injury to feelings • Can be brought against the company and named employees • Two years’ qualifying service not required
Liability of Employers • For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer (section 109(1)) • The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer's knowledge or approval (section 109(3)) • However, there is a defence available to an employer if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act or from doing anything of that description (section 109(4)) • The responsible employees may also be held personally liable under the Act for unlawful harassment committed in the course of employment, whether or not the employer has a defence against liability (section 110)
Recent Cases • Taylor v Jaguar Landrover – ET decision https://assets.publishing.service.gov.uk/media/5f68b2ebe90e077f5ac3b b5a/Ms_R_Taylor_V_Jaguar_Land_Rover_Ltd_-_1304471_2018__judgment.pdf
• Allay (UK) Limited v Gehlen – EAT decision https://assets.publishing.service.gov.uk/media/601bc9e3e90e07128691 d2c2/Allay__UK__Ltd_v_Mr_S_Gehlen_UKEAT_0031_20_AT.pdf
Taylor v Jaguar Landrover Case • All ET decisions now available online • 10 days of hearing to decide on liability alone and case management hearings before that • Protected characteristics of gender reassignment and sexual orientation • Finding against the employer of a continuing course of harassment, direct discrimination, victimisation and constructive dismissal • Claim raised September 2018 and merits hearing August 2020
Taylor v Jaguar Landrover
The respondent’s statutory defence to the above allegations fails, and is totally without merit.
...this Employment Tribunal considers it appropriate to award aggravated damages in this case because of the egregious way the claimant was treated and because of the insensitive stance taken by the respondent in defending these proceedings. We are also minded to consider making recommendations in order to alleviate the claimant’s injury to feelings by ensuring the respondent takes positive steps to avoid this situation arising again.
The claimant’s compensation shall be uplifted by 20% because of the respondent’s complete failure to comply with the ACAS Code of Practice in relation to the claimant’s grievance about short term measures to assist her transitioning.
Taylor v Jaguar Landrover
The Employer had a Diversity Committee none of the witnesses had heard of.
The Claimant’s evidence was that when she queried who the Committee members were, and what its function was, she was informed that: ‘It didn’t really do anything, but could not be got rid of for political reasons’. Surprisingly, there was no Equal Opportunities Policy in the bundle. All of the Respondent’s witnesses thought that there must be one, but none of them had actually seen it.
Taylor v Jaguar Landrover
After the evidence was completed and on the day we heard submissions the Diversity & Equal Opportunities Agreement was handed in. It is a collective agreement between the Respondent and the relevant Trade Unions. Although it was in force at the relevant time none of the Managers who dealt with the Claimant was advised to read it. The sad truth, as this case very clearly demonstrates, is that no steps were taken to implement it or bring it to the attention of employees or managers - none of the managers who gave evidence had received specific training about it.
Taylor v Jaguar Landrover It has been quite rightly accepted by the Respondent’s witnesses that the Claimant was subjected to harassment related to gender reassignment over a sustained and prolonged period of time. The Respondent’s witnesses also accepted that the Claimant raised concerns about this on numerous occasions but that no action was taken to prevent the harassment from occurring and/or continuing. This was because the Respondent’s managers took the view that unless the Claimant “named names”, there was nothing they could do. In other words, they viewed harassment as a purely disciplinary matter, where the victim must identify the alleged perpetrator and the perpetrator, if found guilty, would then be dealt with appropriately. Clearly, that is not the only way the Respondent could have dealt with this situation.
Taylor v Jaguar Landrover There was no evidence whatsoever that the managers who gave evidence, or indeed anyone else working for the Respondent, had been trained on the Dignity at Work procedure. Some of the managers who gave evidence vaguely recalled that that they may have had some form of training on equal opportunities many years previously. It does not appear that the people who dealt with the Claimant throughout this period had regard to the Dignity at Work procedure, even though they were aware of it when they dealt with the Claimant’s case. By way of example, Mr Bingham told us that when he dealt with the Claimant’s grievance appeal, he did not look at the procedure and simply relied on what he was told by a Human Resources Advisor. We heard no evidence from any member of the Human Resources Team.
Taylor v Jaguar Landrover I have had negative comments and advice from Human Resources”. She made reference to the “Not to be sensitive”, and the “What would you want them to call you?” comments. The Claimant then said: “When trying to understand the dress-code, I was told: “No allowances would be made for transition” and that when she asked Human Resources for support and guidance, she received no answer. The Claimant said she had raised two HR tickets but there had been no progress or resolution and that: “Vehicle engineering is like a step back in time. We are expected not to be sensitive. It sets the tone that you should expect in this environment. The Claimant also referred to a lack of LGBT+ visibility in JLR and the fact that there was no diversity leader to speak up for the rights of LGBT+ people.
Taylor v Jaguar Landrover This is perhaps an opportune time to point out that what the Respondent could have done was issue a notice to employees highlighting serious concern at the highest level that incidents had been reported of people being subjected to unacceptable harassment due to protected characteristics.“ As to naming names, we have already observed that this could well have made the Claimant’s situation worse and led to a spiralling problem. In our view, singling out individuals is a very unhelpful approach, and can deter other people from complaining about lack of respect from colleagues. A much more productive and positive approach would have been to give a clear message to the workforce and to contractors, about unacceptable conduct in the workplace and its potential consequences.
Taylor v Jaguar Landrover We told the parties that we wanted to make it absolutely clear that we would regard very dimly any attempt by the Respondent to suggest that the failings in this case were the responsibility of the individual managers. That is simply not the case.
Mr Poole, as we have observed, was completely out of his depth and looking for a lifeline, which was not there. That applies equally to Mr Morrison, Mr Glithero and Mr Bingham. They are employed as Engineers and we have no doubt they are experts in their chosen field. The Respondent did not give them the tools or support to deal with a situation such as this, which was completely outwith their area of expertise.
The advice from HR was woeful, but they (the managers) cannot be blamed for relying on it.
We thought it astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the Claimant raised the issue in 2017, bearing in mind how long the legislation has been in force.
We had not seen a wholesale failure in an organisation of this size in our collective experience as an industrial jury. This case came about as a result of the culture of the organisation. The culture is not aligned to the Respondent’s policies, agreements, or statements of intent.
Taylor v Jaguar Landrover •
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Statutory recommendation that the Respondent’s Board of Directors read and discuss the written reasons for this judgment at a Board meeting on or before 1 March 2021. A copy of the minutes recording that this has taken place is to be sent to the claimant by 15 March 2021. The respondent (“JLR”) agrees to appoint one of its number as a Diversity and Inclusion Champion. The respondent’s Board shall commission a report by a recognised diversity organisation, such as Stonewall, to investigate diversity and inclusion throughout JLR (to include speaking to the claimant) and produce a report setting out the current position and the steps necessary for JLR to become a “standard setting organisation” in the diversity and inclusion field across all the protected characteristics. Thereafter, for the next five years, an expert appointed in the same way will produce an annual report of progress by reference to the original report. Compensation to the Claimant of £180,000 + costs
Allay (UK) Limited v Ms Gehlen – EAT Decision An employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it is able to rely on section 109(4) Equality Act 2010 because it can demonstrate that all reasonable steps were taken to prevent the employee from doing “that thing”, or “anything of that description”. In considering the steps that have been taken, and whether further reasonable steps were required, it is legitimate to consider how effective the steps that have been taken were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice. The tribunal in this case was entitled to conclude that such training as 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.
Allay (UK) Limited v Ms Gehlen – EAT Decision We did not hear evidence from Ian Pearson (“IP”) and only saw the result of the investigation of CB with the employees of the respondent including IP. In the course of that investigation IP accepted that he had engaged in some limited so called “racial banter” with the claimant. We did hear the evidence of the claimant and in this respect we found the claimant to be a truthful witness. We accept that comments were made to the claimant on a regular basis by IP to the effect that the claimant should go and work in a corner shop and references were made by IP (and indeed the claimant) to the fact the claimant has brown skin. We also accept that IP made references to the claimant driving a Mercedes car like all Indians and asked why the claimant was in the country. We conclude that the remarks made by IP were made on a regular basis throughout the employment of the claimant and we accept the evidence of the claimant that such remarks were made at least once per month. We reject as not credible the evidence of the respondent that the remarks were one off remarks. If that were so it would be highly unlikely that such remarks were overheard on the two occasions they were uttered by AB and by CR as we accept they were. We accept the evidence of the claimant that the remarks were made regularly. The tribunal in this case was entitled to conclude that such training as 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.
Allay (UK) Limited v Ms Gehlen – EAT Decision We did hear evidence from DA and we accept his evidence that he did not hear IP making any racist remarks to or about the claimant. However, we accept his further evidence that the claimant told him in August 2017 that IP had made racist remarks to him and that DA had told the claimant to report the matter to HR. We note that DA himself did not report the matter further which given his position as a manager (Customer Service Manager) could have been expected. We have considered the defence advanced by the respondent in respect of the remarks of IP and the reaction of AB and CR to them. We note and accept that all three employees had received training by the respondent in race discrimination and how it should be avoided in the workplace. We accept that that training had covered harassment related to race.
Allay (UK) Limited v Ms Gehlen – EAT Decision The fact that it needed to be refreshed is amply demonstrated by the remarks made by IP and the way both AB and CR and DA failed to properly react to the harassment or allegations at least of harassment. The training had made plain to the employees what they should do if they heard unacceptable remarks and they all failed to follow that guidance. The training patently needed to be refreshed and it would have been a reasonable step to do so. The statutory defence advanced by the respondent is not made out.
Allay (UK) Limited v Ms Gehlen – EAT Decision Considering this matter during the Coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last. It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective. 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. If management become aware that despite such training employees are continuing to engage in harassment, or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as a notification to the employer that they need to renew or refresh the training.
Allay (UK) Limited v Ms Gehlen – EAT Decision Once the tribunal has considered what, if any, steps have been taken by the employer, the tribunal should go on to consider whether there were any other reasonable steps that the employer should have taken. The likelihood of such steps being effective will be a factor in determining whether such further steps are reasonable.
The determination of whether further steps are reasonable may, when appropriate, include considerations such as the cost or practicality of taking the steps.
Allay (UK) Limited v Ms Gehlen – EAT Decision The provision has to be considered having regard to its purpose within equality legislation. It is designed to encourage employers to take significant and effective action to combat discrimination. The defence is available, but only to the employer that can show that all reasonable steps to prevent harassment have been taken.
The training had been delivered around one year and eight months before the Claimant began his employment and around two years and eight months before the Claimant was dismissed.
Allay (UK) Limited v Ms Gehlen – EAT Decision There might be circumstances in which an employee has undergone training but is contemptuous of it and continues to harass. If the training was of a good standard and the employer was unaware of the continuing harassment, the defence might be made out. However, it appears in this case that Mr Pearson, despite having undergone the training, thought that what he was doing was no more than “banter”.
That provided some further evidence that the training that was provided had faded from his memory. The Tribunal was also entitled to conclude the fact that managers did not know what to do when they observed harassment, or it was reported to them, suggested that the training had also faded from their memories.
How To Comply • Educate the workforce • Put policies in place – Equal Opportunities and Bullying and Harassment and apply them • Regular training • Managers’ roles & leadership • Investigate promptly with clear channels to report issues • Take consistent action • Refresh and update regularly – re-educate • Keep clear evidence of doing this
Further Information • Robin White article: https://oldsquare.co.uk/diversity-andinclusion-how-not-to-do-it/ • Morton Fraser podcasts: https://www.morton-fraser.com/knowledgehub/diversity-training https://www.morton-fraser.com/knowledgehub/taylor-v-jaguar-land-rover
Further Training Equality & Diversity Training
Establishing the reasonable steps defence to protect your organisation 3 June – 10am to 12pm https://attendee.gotowebinar.com/register/2124 098549085719823