Why employers need to provide regular and effective equality and anti-harassment training
An employer has failed to show that it took all reasonable steps to prevent racial harassment as the training it had provided around 2.5 years previously was ‘stale’ and had been forgotten by employees.
Employee claims racial harassment
Following his dismissal on performance grounds, Mr Gehlen complained that a colleague, Mr Pearson, had subjected him to racial harassment. His employer investigated and concluded that Mr Pearson had made racist comments, which he described as ‘racial banter’. The employer required Mr Pearson to have further equality and diversity training.
Mr Gehlen, who describes himself as being of Indian origin, brought an employment tribunal claim complaining of race discrimination and racial harassment. The tribunal found that Mr Pearson had regularly made racial comments to Mr Gehlen throughout his employment. It also found that two managers and another employee were aware of the comments but did nothing about it (apart from one of the managers issuing Mr Pearson with a mild rebuke).
Employer's reasonable steps defence fails
The employer relied on the “reasonable steps defence” to distance itself from Mr Pearson’s discriminatory comments and to reduce its own liability. It argued that it had taken all reasonable steps to prevent the discrimination/harassment by providing equality and diversity training and training on bullying and harassment.
The employment tribunal found the training had been delivered so long before the events in question that it was clearly “stale”. It had been provided in early 2015, around 20 months before Mr Gehlen began his employment and over 2.5 years before he was dismissed. The tribunal concluded that the employer had not taken all reasonable steps to prevent the harassment and a reasonable step would have been to refresh the training.
The Employment Appeal Tribunal rejected the employer’s appeal. When considering whether an employer has taken all reasonable steps to prevent discrimination/harassment, a tribunal should first consider the steps the employer has taken. In this case the employer had provided training. The employment tribunal had to consider the nature of the training, whether it was likely to be effective and whether anything that happened since suggested it was not effective (indicating further steps may be required). The tribunal should then consider whether there are any other reasonable steps the employer should have taken.
The employment tribunal had clearly found that the training was “stale”. Mr Pearson had made racist comments but thought they were ‘banter’. The managers and another member of staff were aware of the racist comments but took no further action. That was sufficient evidence for the tribunal to conclude that, whatever training there had been, it was no longer effective and had faded from employees’ memory. This demonstrated the need for the training to be refreshed and this was a reasonable step for the employer to take.
What does this mean for employers?
A key reason for training employees is to try to stamp out or reduce incidences of harassment and discrimination. A related benefit is that the training might give the employer a defence to a claim by arguing that it took all reasonable steps to prevent the discrimination from occurring. This defence can be used to limit liability where the company wants to distance itself from the actions of the perpetrator employee. In this case the employer was unable to rely on the historic training as limiting its liability for the discriminatory actions of its employees.
This case demonstrates the importance of employers providing good quality and regular training on equality and diversity issues and on bullying and harassment to all staff. Employers should also monitor the effectiveness of their training and provide refresher training where any gaps in knowledge or understanding are identified. Employers seeking to rely on the reasonable steps defence need to show that they have taken all reasonable steps to prevent discrimination and this is a high threshold.
If you would like help with providing equality and diversity training to staff or training on bullying and harassment, please get in touch with your usual Doyle Clayton contact or any member of our employment team.
Allay (UK) Ltd v Gehlen
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