Keeping Equality & Diversity Training Up to Date and Relevant

In an ideal world harassment and discrimination in the workplace would not exist, but the reality is those complaints are frequently brought in the employment tribunals. The Employment Appeal Tribunal (“EAT”) reminded us of the importance of keeping equality and diversity training fresh, up to date and relevant in the recent decision of Allay (UK) Limited v Gehlen [2021] UKEAT 0031_20_0402.

In this case the claimant was employed by the respondent, a small company for 11 months.  During that time, he was the victim of regular racist comments that were overhead by colleagues but not reported. The employer as the respondent was vicariously liable for the acts of its employees. The respondent sought to rely on the statutory defence in section 109 (4) Equality Act 2010. The employer can defend a claim of this type by demonstrating that they have taken all reasonable steps to prevent their employees from acting in a discriminatory way. The Tribunal allowed the Respondent to partially rely on this defence stating that the Equality and Diversity Training “which had been delivered…several years before the events in question…was clearly stale. We do not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training.” The original employment tribunal upheld the claimant’s claim of harassment related to race but dismissed his claim of direct race discrimination. The claimant appealed to the EAT and succeeded.

The EAT said that: “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. If training involved no more than gathering employees together and saying "here is your harassment training, don't harass people, now everyone back to work", it is unlikely to be effective, or to last.” Where incidents of discrimination have been reported, the employer should recognise that the training is no longer effective and take steps to refresh the training. In this case the EAT said that refresher training would have been a reasonable step for the employer to take given the time that had elapsed since the training was last delivered.

Employers, regardless of their size need to provide regular good quality equality and diversity training to all staff. This may not completely prevent discrimination, but it should at least mean that any discrimination is dealt with swiftly and fairly. The benefit to an employer of investing in training and policies is that costly tribunal claims can be avoided. If a claim is brought, the employer would be able to show that all reasonable steps were taken to prevent discrimination and therefore have an effective defence. When was the last time you ran comprehensive equality and diversity training? When did you last review your equality and diversity policies?

If you have any queries regarding this communication or need employment advice please do contact a member of the Employment Team on employment@rowberrymorris.co.uk or by telephone on 0118 951 6621.