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Equality and diversity | Court rules ‘stale’ training not enough to defend harassment claim
Training can be a great way to raise awareness of appropriate workplace conduct. Equal opportunities training in particular is something that every employer should consider, as this will help to create an environment that is based on inclusivity, dignity and respect.
As well as helping employees and managers to recognise their own biases and prejudices and identify what changes that can make in how they interact with colleagues, equal opps training – like other forms of HR training – can improve your claims defensibility should you find yourself in front of an Employment Tribunal.
However, sometimes employers can fall into the trap of training for training’s sake, and rather than being meaningful and kept under review, these courses can be treated as a box-ticking exercise. In fact, a recent case has emphasised the importance of staying on top of and ‘giving teeth to’ equal opps training and has shown that those who fail to do so may forfeit the ‘reasonable steps’ defence in the event of employee claims.
The 'reasonable steps' defence
Under Section 109(4) of the Equality Act 2010, “anything done by a person (A) in the course of A’s employment must be treated as also done by the employer”. In other words, employers can be held “vicariously liable” for acts of discrimination or harassment committed by an employee in the course of employment, even if the employer didn’t know about or approve those acts.
“Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.”
With this in mind, employers must take care to foster the right behaviours – ensuring managers know how to spot and deal with issues such as bullying, harassment and discrimination and, equally, that employees understand what is and isn’t acceptable conduct.
When it comes to avoiding vicarious liability, training is employers’ first line of defence. Not only should this help to prevent issues before they arise, but in the event that things do escalate to a Tribunal, being able to demonstrate that you provided training to the perpetrator of the harassment/discrimination will give you scope to argue that you took all reasonable steps to prevent such behaviour from occurring.
This is known as the ‘reasonable steps’ statutory defence, and whilst providing training can help to strengthen your position, it is not a ‘Get out of Jail Free’ card.
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Allay v Gehlen
The claimant in this case, Mr Gehlen, was a Senior Data Analyst who was subjected to racist comments at work on a regular basis. He subsequently brought a number of claims against his employer, Allay (UK) Ltd, including a claim for harassment related to race.
He alleged that:
- A colleague, identified as ‘IP’, made comments to the claimant at least once a month that he (the claimant) was “stealing jobs” and that he should “go and work in a corner shop”, as well as comments in relation to his skin colour.
- Another colleague, DA, a manager, told the claimant that he had heard IP make a racist comment about him, but he would not tell the claimant what the comment was.
- A third colleague, CR, told the claimant that he had heard IP say that the claimant should be working in a corner shop and that he was like all Indians in that he drove a Mercedes car. CR also told the claimant the comments were uncalled for and should not have been said.
- He heard IP make a comment as to why he (the claimant) was in the country, to which another colleague laughed and replied, “IP, man!”
In response, Allay argued that it had taken all reasonable steps to prevent its employees doing such things, namely providing relevant training to the perpetrator, IP, and other employees. That training included a slide on what could be considered to be harassment and included “offensive jokes, suggestive or degrading comments”.
'Stale' training
The Tribunal rejected this defence. In the judgment, it stated: “We note and accept that all three employees had received training by the respondent in race discrimination and how it should be avoided in the workplace. We accept that that training had covered harassment related to race. However, in all cases the training which had been delivered was several years before the events in question and was clearly stale.”
Ultimately, the Tribunal concluded that, by not refreshing the training (despite indications that this was needed due to the remarks made and managers failing to report them), Allay had not taken all reasonable steps to avoid discrimination in the workplace. What’s more, the fact that the employer had provided the perpetrator with further training in respect to equality and diversity after the incidents in question suggested that it acknowledged there was a requirement for such.
The claimant was awarded £5,030.63 in compensation for harassment related to race. Allay appealed, but the Employment Appeal Tribunal upheld the Tribunal’s decision to reject the employer’s ‘reasonable steps’ defence.
Lessons for employers
This case is an excellent reminder that employers cannot just pay lip service to equality and diversity training and then expect that to provide a defence to a discrimination claim at Tribunal. The training must be regular and embed a culture of inclusion into an organisation where discriminatory treatment will be dealt with and punished. In that sort of environment, the reasonable steps defence has a much greater chance of being successful.
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For more information on how Ellis Whittam can help you to develop a fairer, more inclusive working environment, stay on top of training requirements and manage difficult employee situations including issues of harassment, call 0345 226 8393.