It is well known amongst employers that training of staff on equality and diversity needs to be carried out. But a recent case – in which an employer had a complaint of harassment upheld by the tribunal – highlights the importance of ensuring your training is up-to date, comprehensive, regularly delivered and is being effectively applied.
In the recent case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal (EAT) rejected an employer’s ‘reasonable steps’ defence to a claim of racial harassment on the basis that diversity training carried out two years earlier had become ‘stale’ and ineffective.
As a reminder, an employer will be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, whether or not it is done with the employer’s knowledge or approval. However, employers may be able to defend a discrimination claim by arguing that they took ‘all reasonable steps’ to prevent employees from either committing a particular discriminatory act or committing such acts in general. The threshold that must be met is a high one and will involve the employer demonstrating that they have taken all steps required to prevent the incidents occurring.
What happened in this case?
The case in question involved an employee who was subjected to harassment related to race by a fellow employee. The effected employee subsequently brought claims in the Employment Tribunal and the employer sought to rely on the reasonable steps defence. The Tribunal rejected this and upheld the complaint of harassment. Whilst the Tribunal accepted that training relating to harassment had been carried out, the training had been delivered two years earlier and was therefore held to be ‘stale’. The Tribunal considered that the passage of time between the training and the discriminatory acts meant that the training had clearly faded from the guilty employee’s memory.
The Tribunal held that the employer had not taken all reasonable steps to prevent the discrimination, as a reasonable step would have involved carrying out refresher training. Given that the employer organised subsequent training after the complaint was made, it was clear to the Tribunal that the employer agreed refresher training would be an effective way to eliminate these issues in the future. The training that the employer delivered was also held to be ineffective in practice on the basis that the employee making the comments thought it was merely ‘banter’ and that three other employees (two being managers) who heard or became aware of the racist comments failed to report it to HR or to take any action at all. Effective training would have warned against such ‘banter’ and highlighted the importance of dealing with such comments head on.
The employer appealed the decision, arguing that the effectiveness of the training was irrelevant to the question of what constitutes a reasonable step. The Employment Appeal Tribunal dismissed the appeal and concluded that the Tribunal had been right to reject the reasonable steps defence on these facts.
What does this mean for employers?
This case is an important reminder to employers of how fundamental diversity training is and that this training must be:
- regular; and
- updated and improved upon each time it is delivered.
The case also highlights that training carried out two years ago will not be sufficient.
This ruling highlights the best practice approach of having annual training as the the safest and most effective approach for employers to take going forward. This will remind employees of the importance of equality in the workplace and help employers in the event of needing to defend any Tribunal claims.
Our employment experts regularly provide specialist employment training courses on equality and diversity, which places a strong focus on practical examples and case studies.
The course can take the form of a workshop, a seminar for larger groups, or an online recording that can be watched by your staff at their own pace.
If you would like to discuss this case in more detail or speak with a member of the Team about delivering an updated training session to your workforce, please get in touch today. Our Employment Team would be happy to help.