It might be tempting to think that you ‘have that box ticked’ when it comes to having provided training on discriminiation and harassment. But a recent judgment in the Employment Appeals Tribunal Allay v Gehlen makes it clear that employers cannot rely on the argument that they have taken ‘reasonable steps’ to prevent discriminiation, just because they’ve done some training at some point. In this important case, the EAT found that the training had become ‘stale’ and needed refreshing, ultimately holding the employer responsible for an employee’s harassment as a result.
Background
The Claimant, Gehlen, described himself as being of ‘Indian origin’. He complained to his employers (Allay UK Ltd) that he had been subjected to race-related harassment by another employee. This had been witnessed by two other managers but not reported to HR at the time. Following an investigation the employee in question was required to undertake additional equality and diversity training.
Not satisfied with this Gehlen brought a claim for harassment, related to race, against his employer. In the Employment Tribunal Allay UK Ltd relied on the ‘reasonable steps’ defence under s109(4) Equality Act 2010. Allay argued that it had taken ‘all reasonable steps to prevent the harassment’ because it had previously required all of its employees to take equality and diversity training.
The decision
The Employment Tribunal rejected Allay UK Ltd’s defence of ‘reasonable steps’. They found that as the training had taken place over two years before the harassment incident it was ‘stale’. Allay UK Ltd had failed to provide refresher training and, as a result the ET found that Allay UK Ltd had not, in fact, taken ‘all reasonable steps’ to avoid discrimination.
Allay UK Ltd took this decision to the Employment Appeal Tribunal, who dismissed their appeal. The EAT upheld the tribunal’s decision to reject the defence. They considered that the ‘reasonableness’ of steps taken should consider how effective the training was, not simply whether it had been carried out. The EAT felt that it was clear that the training was ‘stale’ due to the perpetrator believing that the remarks he made were only ‘banter’, that other employees had failed to report them and that the managers did not know what to do when they also witnessed the harassment. Furthermore, the EAT felt that as the investigation had resulted in a requirement for the perpetrator to do further equality and diversity training, Allay UK Ltd itself considered additional training would be beneficial and necessary.
What you need to know
All employers need to take note of this case. It demonstrates the need for mandatory training to be up-to-date and refreshed regularly. This is particularly important in areas such as equality and diversity, with ever-changing societal standards.
At enlightenHR we are able to provide all mandatory training, through our network of HR professionals. For more information about how we can help you to keep your mandatory training up-to-date and refreshed, please contact us directly.
