Discrimination: “Stale” diversity training

Published 4 March 2021

An employer’s diversity training had become stale and needed refreshing, leading the tribunal to reject the employer’s reasonable steps defence.

BACKGROUND:

An employer will not be liable for an employee’s discriminatory actions if the employer can show that it has taken “all reasonable steps” to prevent the employee from doing the discriminatory (or similar) acts.

THE FACTS:

Mr Gehlen, who describes himself as being “of Indian origin”, was employed by Allay (UK) Limited.  He was dismissed for his performance, and subsequently complained that he had been subjected to race harassment by a colleague, Mr Pearson.  An investigation was undertaken by Allay, and it was established that Mr Pearson had made racist comments.  Mr Pearson was required to take equality and diversity training.

Mr Gehlen brought claims against Allay, including a claim of race harassment.  The tribunal held that discriminatory comments had been made on a regular basis by Mr Pearson  The tribunal also found that, on being told by Mr Gehlen that Mr Pearson had made racist comments, a manager told him to report to HR but took no further action.  Another manager overheard Mr Pearson making a racially harassing comment but, rather than taking any steps to report it, had just said “Ian, man!”.

Allay had an equal opportunities policy and an anti-bullying and harassment procedure.  Mr Pearson and one of the managers had undergone equality and diversity training two years previously.  On this basis, Allay argued that it had taken all reasonable steps to prevent the discriminatory acts. The tribunal disagreed.

It considered that the training was “clearly stale” (as was demonstrated by the fact that two managers and another employee failed to react properly to the harassment) and that a reasonable step would have been to repeat the training. 

Allay appealed, and the EAT dismissed their appeal. 

Of particular interest to employers are the EAT’s comments that:

• 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.  Superficial training and policies are unlikely to meet this requirement, and training (particularly where superficial) will go stale after a while.  Employers should 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.

Employers may find section 5 of the Equality and Human Rights Commission’s guidance useful.

Allay (UK) Ltd v Mr S Gehlen UKEAT/0031/20/AT