Equality training: is training once not enough?
Allay (UK) Ltd v Gehlen UKEAT/0031/20
In the context of a racial harassment claim, the Employment Appeal Tribunal (EAT) has held an employer cannot rely on the 'reasonable steps' defence where equalities training had become "stale" and needed refreshing. The EAT stated, “it is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective.”
Back to basics: Race Discrimination
Under the Equality Act 2010, race is a 'protected characteristic'. This makes it unlawful for an employer to discriminate on the basis of race. There are four main types of race discrimination:
- Direct discrimination;
- Indirect discrimination;
- Harassment; and
The race discrimination legislation protects both job applicants and those "in employment" under a contract of employment, a contract of apprenticeship and a contract personally to do work. This covers employees, employee shareholders, workers and a wider category of individuals who are self-employed, provided that they are "in employment" and their contract obliges them to perform work personally.
Understandably, if an employer unlawfully discriminates against a job applicant or someone "in employment", they will be liable. However, employers may also be liable for the unlawful actions of their employees if they were carried out 'in the course of employment'. Therefore, employers may be vicariously liable regardless of whether they had knowledge of the unlawful actions carried out by an employee.
Importantly, an employer may be able to defend a claim resulting from the above if it is able to show that all 'reasonable steps' were taken to prevent the employee from doing the discriminatory act or from doing anything of that description.
Facts of the Allay (UK) Ltd v Gehlen case
The employee worked for the employer as a Senior Data Analyst from October 2016 until September 2017, when he was dismissed for performance related reasons. The employee, who described himself as being of Indian origin, complained after his dismissal that he was harassed by a fellow employee due to his race. Following an investigation, it was found that this fellow employee had indeed made racist comments and was ordered to undertake further equality and diversity training.
In the claim for harassment related to race, the employer relied on the 'reasonable steps' defence under the Equality Act 2010. The employer argued it had taken all reasonable steps to prevent the harassment, highlighting its provision of relevant training to the perpetrator and other employees.
Findings of the Employment Tribunal (ET)
The ET rejected the employer's reasonable steps defence, finding that the employer had not taken all reasonable steps to avoid discrimination. Therefore, the employee's complaint of harassment was upheld. The ET considered the steps taken by the employer, and whether further reasonable steps were required. In doing so, it was important to reflect on how effective the steps that had been taken were likely to be and, in some circumstances, how effective they had proven to be in practice.
The ET found a reasonable step would have been to provide refresher training, noting that whilst employees had received training that covered harassment related to race, this was back in 2015 and was "clearly stale". In this case, the ET also found that a colleague who had heard the racist comment did not report it and two managers who had been informed about the racist remarks did not take any action either. Consequentially, the need to provide additional training was demonstrated by not just the remarks made by fellow employees, but also the failure of three other members of staff to properly react to the harassment. The employer was ordered to pay compensation of £5,030.63 to the Claimant, including interest.
Findings of the EAT
The EAT upheld the ET's decision. The EAT noted the ET was entitled to conclude that the training was stale and was no longer effective to prevent harassment; the fact that the employer provided the perpetrator with training after the harassment was deemed to show that it must have thought it was likely to be effective.
What this means for employers
Whilst many industries have been working from home during the Covid-19 pandemic, this is a reminder that employers should regularly review their equality and diversity training. This case highlights the need to have regular training and 'refresher' courses, whether these are in person or online. Employers should consider whether policies in place actually effective or merely a tick-box exercise.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.