The recent UK case of Allay (UK) Ltd v Gehlen [2021] has persuasive power in Ireland and contains a strong lesson for employers, regardless of the jurisdiction in which they operate.

This case before the UK equivalent of our Labour Court concerned an employee who was dismissed for apparent poor performance with less than one year’s continuous service.

After being dismissed, the claimant alleged that he had been subjected to harassment relating to his race by another employee. The respondent investigated the allegations and found that the employee in question had indeed made the racist comments and was ordered to undertake further equality and diversity training.

The claimant brought claims on the basis of harassment, but the respondent sought to argue that they had taken reasonable steps under the Equality Act 2010 (similar to Section 15 of the Employment Equality Act 1998 in Ireland) because the workforce had received training in equality and diversity.

The original employment tribunal found that the training (only two years before the harassment took place) had become ‘stale’. The fact that there had been racist comments made by a colleague and they had been heard by other colleagues was sufficient to conclude that the training was no longer effective.  The argument by the employee that it was mere ‘banter’ was taken into account for showing that the training had lost its effect.

The Employment Appeal Tribunal in the UK agreed:

“…they were entitled to conclude the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken.”

Full case decision:

https://assets.publishing.service.gov.uk/media/601bc9e3e90e07128691d2c2/Allay__UK__Ltd_v_Mr_S_Gehlen_UKEAT_0031_20_AT.pdf

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