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The ‘statutory defence’ against discrimination claims

When defending a discrimination claim in the employment tribunal (ET), it is common for employers to rely on what is known as the ‘statutory defence’.

Section 109(4) of the Equality Act 2010 (EQA) provides a defence for employers facing a claim for unlawful discrimination in the ET. This only applies where the employer is able to demonstrate that it took all reasonable steps to prevent the perpetrator from committing the discriminatory acts alleged. Such steps could, for example, include providing staff with training relating to equal opportunities in the workplace.

The recent Employment Appeal Tribunal (EAT) case of Allay (UK) Limited v Gehlen has demonstrated how high the threshold for successfully arguing this defence can be.

Following his dismissal in 2017, the Claimant (who described himself as being of Indian origin) complained to the Respondent that he had been racially harassed by another employee. The complaint was upheld, and the harassing employee was required to undertake equality and diversity training.

The Claimant brought claims in the ET for race discrimination and harassment. The Respondent attempted to rely on the statutory defence, referring the ET to the training that it had provided to its staff. However, it failed in this attempt and the Claimant’s harassment complaint was successful.

The ET found that, whilst the Respondent had provided staff with equality and diversity training two years prior, this training had become ‘stale’ by the date of the incident of harassment. The ET took the view in this case that a reasonable step for the Respondent to have taken in order to establish the statutory defence would have been to provide staff with ‘refresher’ training.

The Respondent appealed the decision. Dismissing the appeal and upholding the ET’s finding, the EAT agreed that the Respondent could not rely on the statutory defence. The EAT held that section 109(4) is designed to encourage employers to take proactive steps aimed at effectively combatting discrimination in the workplace. Here, the Respondent’s training did not meet the requirements of a ‘reasonable step’ as it was too far in the past to still be effective in preventing harassment and it should have been refreshed. As a result, the Respondent’s defence failed.

This case is a useful reminder to employers not only of how high is the threshold for establishing the statutory defence but also of the importance of regularly reviewing and updating policies and training provision.

If you have any questions about the statutory defence, please email or call our Employment Law team today on 0113 207 0000.


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Paul Kelly

Partner and Head of Employment
Employment Law
0113 227 9249
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Paul Kelly Blacks Solicitors LLP