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Employers beware of ‘stale’ equality and diversity training!

Partner, Paul Johnstone

The Employment Appeal Tribunal (“EAT”) in the case of Ally (UK) Ltd v Gehlen has considered whether an employer could rely upon the ‘reasonable steps’ defence to a claim of harassment on the basis that they had previously given their employees equality and diversity training.

Background

The Claimant began his employment with the Respondent as a Senior Data Analyst in October 2016. The Claimant was dismissed with immediate effect in September 2017 as a result of his performance. However, the Claimant raised a complaint after his dismissal that he had been subjected to harassment by a colleague on the basis of race, as the Claimant describes himself as being of “Indian origin”. Following an investigation, it was found that the Claimant’s colleague had made racist comments to the Claimant. Importantly, the Respondent had an equality and diversity policy and had previously given equality training to the Claimant’s colleague accused of harassment, which took place in January/February 2015.

The Claimant brought claims of direct race discrimination and harassment related to race to the Employment Tribunal against his previous employer for the actions of his ex-colleague.

The Law

Harassment is a form of discrimination and is defined under s.26 of the Equality Act 2010 as where, a person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. It is worth highlighting that harassment claims can be brought against the perpetrator of harassment and the employer where the perpetrator is an employee, as an employer can be held vicariously liable for the actions of its employees.

S.109(4) of the Equality Act sets out the ‘reasonable steps’ defence which an employer can seek to rely upon. It states that “in proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A from doing that thing or from doing anything of that description.”

Decision

The Tribunal dismissed the claim for direct race discrimination but upheld the harassment claim. In reaching its decision, the Tribunal noted that the training which had been delivered was several years old and was “clearly stale”. The Respondent appealed the decision.

In dismissing the Respondent’s appeal, the EAT concluded that the Tribunal was able to find that the training given to the employee, and the two managers who had failed to report matters to HR, had become stale and needed refreshing. The EAT emphasised that an employer seeking to rely on the defence that it has taken all reasonable steps to prevent discrimination has to cross a high threshold.

In particular, the EAT gave guidance on equality training organised by employers, stating that “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.

Comment

This decision highlights the need for a proactive and thorough approach to equality and diversity within the workplace. Employers should be making sure that new employees receive this type of training as part of their induction and that ‘refresher’ sessions are run for existing employees which are detailed and not just ‘tick box’ exercises. Also, as we have seen in this case, where an employer allows such training to become ‘stale’, this may affect their ability to rely upon the ‘reasonable steps’ defence in the event of a discrimination claim being brought against them based on the actions of one of their employees.

Collingwood Legal is running a series of training sessions in March on Essential Managers Skills. In particular, we are running a session on essential equality law which will cover issues such as harassment and the ‘reasonable steps’ defence for employers. You can register for that session, as well as accessing details about the other sessions, here.

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