302: Defending harassment claims: The impact of ‘stale’ equality and diversity training
Under the Equality Act 2010, an employer may have a defence to a harassment claim if all reasonable steps were taken to prevent employees committing discriminatory acts, for example, by implementing appropriate equal opportunities policies and training. Reasonableness will depend on cost, practicality, and the likelihood of the steps being effective in preventing discrimination.
In today’s blog we look at the decision of Allay (UK) Ltd v Gehlen, where the Employment Appeals Tribunal examined whether an employer had taken all reasonable steps to avoid an employee being racially harassed by a colleague and whether the employer could rely on ‘stale’ equality and diversity training.
Mr Gehlen was an employee of Allay (UK) Ltd who describes himself as being of Indian origin. After his dismissal for performance-related issues, he complained that he had been subjected to racial harassment by a colleague, Mr Pearson. Allay’s investigation confirmed that Mr Pearson had made racist comments which he characterised as ‘racial banter’. Mr Gehlen subsequently brought a claim of race discrimination and racial harassment in the Employment Tribunal.
The Tribunal upheld Mr Gehlen’s racial harassment claim. It found that Mr Pearson had regularly made racist comments to Mr Gehlen, and that another colleague and two managers were aware of these comments but had taken no action other than a mild rebuke. Allay’s defence that it had taken all reasonable steps to avoid this harassment was rejected. The company had an equal opportunities policy and an anti-bullying and harassment procedure, and had run training courses on equality and diversity, bullying and harassment. However, the Tribunal held that the training was clearly ‘stale’ and that a further reasonable step would have been to provide refresher training.
Allay appealed to the Employment Appeals Tribunal on the ground that the Employment Tribunal had failed to properly engage with its defence that all reasonable steps had been taken to prevent the harassment. However, the Employment Appeals Tribunal dismissed the appeal and confirmed the Employment Tribunal’s reasoning, emphasising that employers have a high threshold to cross when seeking to rely on this defence. The Employment Appeals Tribunal upheld the decision that the employer had failed to take all reasonable steps to avoid an employee being racially harassed by a colleague and could not rely on ‘stale’ equality and diversity training.
Allay had conducted its training one year and eight months before Mr Gehlen started his employment, and two years and eight months before his dismissal. There was sufficient evidence that this training was no longer effective given that Mr Pearson had described his racist comments as ‘banter’, and Mr Gehlen’s colleague and two managers had not taken appropriate action. Refresher training would have been a reasonable step and there was nothing to suggest that it would not have had a good chance of being effective. The Employment Appeals Tribunal also commented that Allay’s policies and training did not appear to be very impressive, even for a relatively small employer. For example, the training materials did not refer to race or racial stereotypes, and the equal opportunities policy did not refer to harassment.
This case illustrates that the ‘reasonable steps’ defence is designed to encourage employers to take significant and effective action to combat discrimination. This case is a timely reminder that tribunals will consider not only the reasonableness of steps which have been taken, but also whether any other steps should reasonably have been taken. In practice, this means that simply having well-drafted equal opportunities policies and procedures is not enough. Good quality, in-depth training on those policies and procedures must be conducted sufficiently regularly to ensure they are effective to prevent harassment and discrimination within the entire workforce. It may be that annual training is necessary to avoid it becoming stale, although as the Employment Appeals Tribunal pointed out in this case, the less effective training is, the more quickly it becomes stale. Employers should also note that tribunals are likely to look in detail at the content and quality of policies and training provided to employees.