A recent case reminds employers why they shouldn’t rely on old equal opportunity and diversity training as a defence for a discrimination claim.
Employers may rely on the defence that they took “all reasonable steps” to prevent one of their employees from discriminatory (or similar) acts and therefore not be held liable for such discriminatory actions.
However, In the case of Gehlen v Allay (UK) Ltd the tribunal found that the Company’s diversity training had become “stale” and “needed refreshing” and as a consequence, the employer’s reasonable steps defence failed.
The Case – ‘stale’ diversity training
Mr Gehlen was employed by Allay (UK) Limited. After he was dismissed for his performance, he complained that he had been subjected to racial harassment by a colleague, Mr Pearson. On investigation the Company established that racist comments had been made by Mr Pearson, who was required to take equality and diversity training.
Mr Gehlen brought claims against Allay, including a claim of race harassment. The tribunal found that discriminatory comments had been made on a regular basis by Mr Pearson and that the Company had not acted on Mr Gehlen’s complaints.
Allay argued that it had taken all reasonable steps to prevent the discriminatory acts as it had an equal opportunities policy and an anti-bullying and harassment procedure. Furthermore, Mr Pearson and company managers had undergone equality and diversity training two years previously.
The tribunal disagreed stating that the training was “clearly stale” and that a reasonable step would have been to repeat the training.
Allay appealed, and the EAT dismissed their appeal.
The EAT’s comments give useful pointers to Employers:
- if training has been provided and the employer is aware that harassment is still occurring, or that employees are demonstrating that they do not understand the importance of preventing and reporting harassment, it is clear that further steps should be taken.
- brief and superficial training is unlikely to have a substantial effect in preventing harassment, or to have long-lasting consequences.
- thorough and forcefully presented training is likely to be more effective and to last longer.
- the employer’s policies, which made very limited reference to harassment or race, were not “very impressive even for a relatively small employer”. The policies were not therefore helpful in establishing that the employer had taken all reasonable steps.
What does this mean for Employers?
This case underlines the importance for employers in being able to show that they have taken all reasonable steps to prevent harassment. Acting reasonably in response to a complaint of discrimination or harassment will not be sufficient. Superficial training and policies are unlikely to meet this requirement, and training (particularly where superficial) will lose its impact after a while. Employers should therefore consider refreshing diversity and anti-harassment training and reviewing their policies, and they should emphasise (particularly to managers) the importance of recognising harassment and stepping in to prevent it.
There have been increasing numbers of harassment and discrimination claims in the Employment Tribunal, employers would therefore be advised to ensure they review and, if necessary, update workplace policies and practices to ensure that they are up to date and reflect best practice.
As demonstrated by this case, it is important to ensure that appropriate training occurs on matters such as equal opportunities, bullying, harassment and discrimination ideally as part of induction process, and subsequently refresher training takes place on a regular basis.