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Has your diversity training gone ‘stale’?

Employers not to be remiss or let things slide in respect of training their employees on matters such as equality & diversity, bullying & harassment.

The recent case of Allay (UK) Ltd v Gehlen is a stark warning to employers not to be complacent in terms of employee training. The EAT held that it was entitled to reject the employer’s ‘reasonable steps’ defence to a claim of harassment related to race on the basis that its equality and diversity training had become ‘stale’ and ineffective.

The Law: the ‘reasonable steps defence’

Legally, an employee can be ‘vicariously liable’ for the unlawful discriminatory actions of an employee. However, under s.109(4) Equality Act 2020, an employer can defend such a claim if it can satisfy the employment tribunal that it took ‘all reasonable steps’ to prevent such actions occurring. To decide whether this defence should be successful, the employment tribunal will consider both how effective the steps were likely to be when taken; and also how effective they proved to be in practice.

The employer must show it has taken all reasonable steps, which is a high threshold for the employer to overcome.

What happened?

Mr Gehlen is a man of Indian origin. He was dismissed from his role as a Senior Analyst for the Respondent (Allay (UK) Ltd) on 15 September 2017 for performance reasons. After Mr Gehlen’s dismissal, he raised a complaint that he had been subject to harassment relating to his race by a fellow employee, Mr Pearson. Following an investigation into the complaint, it was found that Mr Pearson had made racist comments to Mr Gehlen and he was required to complete further training on equality and diversity.

Mr Gehlen brought a claim for race discrimination and harassment related to race in the employment tribunal and Allay (UK) Ltd relied on the ‘reasonable steps’ defence on the basis that the company had an equal opportunities policy and an anti-bullying and harassment procedure, and that its employees (including Mr Pearson) had received training on such matters in early 2015.

The employment tribunal found that Mr Gehlen had been subject to numerous comments that amounted to harassment related to race; including comments to the effect he should go and work in a corner shop and also references to the colour of his skin. It was also found that, prior to Mr Gehlen’s dismissal, at least two other colleagues had witnessed such comments being made. Mr Gehlen had also reported the comments to the Customer Service Manager in 2017 and informed Mr Gehlen to report the matter to HR rather than taking action himself.

The employment tribunal rejected Allay’s defence on the basis that the training had been delivered several years prior to the events and was clearly stale. The fact that Mr Gehlen’s colleagues had witnessed remarks and failed to act appropriately to them (as set out in the training) demonstrated that the training had become ineffective and required refreshing. On that basis, the tribunal did not accept all reasonable steps had been taken; as a further reasonable step would have been the provision of refresher training.

The Appeal: Guidance for employers

Allay appealed to the EAT and argued that the reasonable steps defence only required reasonable steps to be taken; and that the tribunal had wrongly equated the effectiveness of the training with ‘reasonableness’. The EAT dismissed the appeal and in doing so offered some helpful guidance on the approach that should be adopted when considering the reasonable steps defence:

The starting point is to consider whether an employer has taken any step, or steps, to prevent harassment;

In considering reasonableness, the tribunal will analyse the extent to which the step or steps would likely prevent harassment. It is not sufficient to merely consider whether there has been training, but also the nature of the training and the likelihood of effectiveness (For example, ‘brief and superficial’ training would be unlikely to have long lasting consequences or have a substantial effect in preventing harassment);

It is also relevant to consider what happened in practice. (For example if an employee attends training they do not understand, or chooses not to follow it, this could be relevant in determining whether all reasonable steps had been taken. If it becomes clear to an employer that harassment is still occurring this should demonstrate the need to improve or refresh the training);

Once the tribunal has considered the steps taken; they should go on to consider whether there were any other reasonable steps that should have been taken. The employment tribunal should have regard to other considerations such as cost and practicability.

Whilst in this case the employment tribunal did not make detailed findings on the policies Allay had in place, the tribunal had been entitled to conclude the training was stale and no longer effective at preventing harassment, and a further reasonable step would have been the provision of refresher training.

What does this mean in practice?

This case is a stark warning to employers not to be remiss or let things slide in respect of training their employees on matters such as equality and diversity and bullying and harassment.

Employers should ensure they have well drafted, clear and comprehensive equal opportunities, anti-harassment and bulling polices in place, and that employees are aware of and understand them.

To facilitate this, it is important that employers deliver effective, high quality training in respect of these policies at the outset; which is likely to have a longer term impact. Employers need to ensure, as far as possible, that employees understand how to apply training in practice and what they can do if they suffer from harassment or, equally importantly, if they witness it. The aim is to embed training into workplace culture, rather than to simply ‘tick boxes’.

There are, of course, a number of ways training can be delivered, but it is important that it is tailored to the needs of an employer’s workforce. Face to face in groups (in person or virtually), with an element of interaction, can help promote engagement. A ‘knowledge test’ or feedback session at the end of training may be helpful to test understanding, and it is important wherever possible that employees have the opportunity to ask questions.

Refresher training should be delivered regularly to ensure that messaging remains fresh, and is consistently understood and enforced. If an employer becomes aware of an incident of harassment, this may be an indication that the training requires a refresher.

Weightmans' employment law experts can take the hard work out of workplace policy reviews, helping you to establish new policies and procedures, or update and maintain those already in place. Drawing on specialist expertise and experience from across the firm, we also offer a broad range of bespoke training, tailored to your organisation’s particular needs. For more information please speak to your usual Weightmans advisor, visit our website, or contact Mark Landon, Head of Client Training.

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