A recent Employment Appeal Tribunal (EAT) decision has provided a stark reminder that equality and diversity training must not be a mere tick box exercise.
If an employer faces a claim of discrimination and they seek to rely on the 'reasonable steps' defence, the training that they point to must have achieved its purpose in raising workers' awareness of discrimination and harassment; their equality and harassment policies and procedures; and the routes available to workers for raising concerns. Testing the continuing effectiveness of the training is also key – refresher training on a sufficiently regular basis is likely to be required.
What is the reasonable steps defence?
Usually, an employer will be liable for acts of discrimination or harassment found to have been carried out by their employees, if the conduct occurs 'in the course of employment'. However, the employer may have a defence if they are able to show that they took all reasonable steps to prevent the employees committing a particular discriminatory act, or committing such acts in general. Examples of reasonable steps employers can take to prevent discrimination include having appropriate, up to date and properly implemented policies; and providing training in equal opportunities and harassment issues.
Allay (UK) Limited v Gehlen
An employee of Allay (UK) Limited ('Allay'), Mr Gehlen raised a claim of racial harassment by a fellow employee against Allay after he was dismissed for performance related issues in September 2017. Allay's investigation found that racist comments had been made towards Mr Gehlen (who defined himself as of 'Indian origin') by a fellow employee.
Allay sought to rely on the defence that 'all reasonable steps' had been taken to prevent employees from committing discriminatory acts of this nature or from doing anything of that description. The employment tribunal rejected this defence and upheld Mr Gehlen's claim of harassment. Whilst Allay had provided training in 2015, including racial harassment training, the tribunal found it was 'clearly stale' and a reasonable step should have been to provide refresher training.
Effectiveness of training
Allay unsuccessfully appealed to the EAT, which noted that in determining the reasonable steps that should have been taken, regard must be had to the nature of the training and how effective it had been, along with any other steps that could have been taken and their potential effectiveness.
When taken together, the EAT decided that the following key failings demonstrated that the training had been effectively forgotten by Allay's employees. The fact that:
- the comments were made in the first place and were considered to be 'banter';
- the colleague who overhead the racial harassment didn’t report it;
- the two managers informed of the harassment didn't report it.
The EAT was also not convinced that Allay's training was comprehensive. The training materials made no reference to race or racial stereotypes. In addition, their equal opportunities policy made no reference to harassment, and their bullying and harassment policy referred to harassment in the title only. Overall, the training was no longer sufficient nor effective to prevent harassment, therefore Allay wasn't permitted to rely on the reasonable steps defence.
What should employers be doing in light of this decision?
This case illustrates the importance of having quality, regular and up to date training on equality and diversity. Training needs to be comprehensive and sufficient for workers to understand what discrimination and harassment is; their own obligations; and what they should do if they witness or are the subject of any form of discrimination or harassment.
Training which is not effective, will not be enough to meet the threshold for the reasonable steps defence which the EAT has confirmed, is a high threshold.
- Review your suite of equal opportunities policies – are they up to date and comprehensive?
- Regularly remind workers where to find policies and procedures, and have systems in place to ensure that they have read and understood them.
- Revisit your equality and diversity training:
- Is it up to date & sufficiently comprehensive - will workers understand the key concepts of discrimination and harassment?
- Does it contain relevant examples to effectively illustrate the different protected characteristics as well as the kinds of discrimination and harassment that can occur in the workplace? If not, consider updating it.
- Do workers still remember the training? Employee surveys may help in assessing whether your training has been effective. You could also consider testing workers' knowledge about how they would raise a concern about their own treatment or of others. If there is any concern that the training may have been forgotten, refresh it and do so sufficiently regularly.
Arrange training for your team
Our team is experienced in designing and delivering comprehensive equality and diversity training. If this case has got you thinking about your organisation's training get in touch with Lynne Marr in our employment and immigration team; or your usual Brodies contact and we can help you deliver robust and effective training to your teams.
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