‘Stale’ training not enough to defend employer from discrimination claim
Wednesday 17th February 2021
Is your training fit for purpose?
If not, then you maybe unable to rely on the ‘reasonable steps’ defence if an employee claims discrimination.
In Allay (UK) Ltd v Gehlen, the employer could not establish the ‘reasonable steps’ defence where one employee had discriminated against another as the equality and diversity training it had provided was outdated.
The Claimant, Gehlen, described himself as being ‘of Indian origin’. He complained to Allay (UK) Ltd that he had been subjected to harassment in relation to his race by another employee. Two managers had also witnessed the harassment but failed to report it to HR. It was found during an investigation that the racist comments had been made to Gehlen, and the offending employee was subsequently required to undertake additional equality and diversity training. Gehlen then brought a claim of harassment against Allay (UK) Ltd in the Employment Tribunal, in which Allay relied on the defence of ‘reasonable steps’ having been taken in order to prevent employees from committing discriminatory acts. The basis of this defence was that Allay had required all of its employees to previously take equality and diversity training.
The Employment Tribunal rejected Allay (UK) Ltd’s defence of ‘reasonable steps’. This was because the equality and diversity training it relied upon had taken place over two years prior to the harassment, and the Tribunal found that the training had now become ‘stale’. Allay had failed to provide ‘refresher’ training, and the Tribunal therefore found that Allay had not taken all reasonable steps in order to avoid the discrimination.
The Employment Appeal Tribunal dismissed Allay’s appeal. The EAT held that when considering how reasonable the steps an employer has taken are, consideration should be given to how effective training has been rather than just whether or not it has been carried out. The EAT concluded that it was clear the training had become ‘stale’ due to the perpetrator believing the remarks he made were only ‘banter’, that other employees who overheard the racist remarks had failed to report them, and that managers did not know what to do when they witnessed the harassment, thus showing the training had evidently faded from their memories. Furthermore, the fact that the employer had required the offending employee to undergo additional equality and diversity training showed that it itself considered additional training would be beneficial and effective. Therefore Allay (UK) Ltd could not rely on the defence of reasonable steps having been taken.
This case demonstrates the importance of ensuring that all employee training is kept up to date and refreshed periodically. This is particularly the case in areas such as equality and diversity, where societal standards are often changing. You should also bear in mind the effectiveness of any training provided to your employees as this will be crucial; providing training is not simply a ‘tick-box’ exercise.
If you would like to discuss this further, then please contact one of our employment experts below. To view the full February Employment Law Update, click here: