United Kingdom employers need to ensure training is regularly refreshed so it remains effective.
Diversity, equity and inclusion training is something that many employers invest in, primarily in terms of ensuring a positive work environment free of discrimination. Often it will form part of orientation training for new hires or perhaps management training on promotion. In some cases, even when training has been provided, acts of discrimination, harassment or victimization may still occur.
In terms of the Equality Act 2010, any act carried out by an employee during the course of his or her employment is treated as also having been done by the employer—potentially rendering the employer vicariously liable for acts of discrimination. Employers can, however, avoid such liability if they can show they have taken “all reasonable steps” to prevent the employee from carrying out the discriminatory act.
In the case of Allay (UK) Limited v. Gehlen, the claimant had been subjected to harassment related to race by a colleague. The claimant raised this with his employer following his dismissal, which had been for performance-related reasons. The employer investigated the allegation, upheld it and required the colleague to undergo further equality and diversity training.
The colleague had already undergone anti-bullying and harassment training and equality and diversity training in 2015, around 20 months before the claimant began his employment. During the investigation it became clear that three of the claimant’s co-workers had been aware of the harassment when it happened but had not taken any action.
The employment tribunal dismissed a claim of direct race discrimination but upheld a claim of harassment related to race, holding the employer vicariously liable for the acts of its employee. The employer had attempted to defend the vicarious liability claim on the basis that the training the colleague had attended in 2015 meant that it had taken all reasonable steps to prevent the harassment from occurring. The training covered harassment related to race, and also what employees should do if they heard unacceptable remarks or had it reported to them.
However, the tribunal found that the reasonable steps defense was not made. The training was “clearly stale.” The colleague had not recognized his banter as harassment and the other employees had failed to act when it was brought to their attention. In the circumstances, it would have been reasonable to provide refresher training. Consequently, the employer had not taken all reasonable steps.
The employer appealed to the U.K. Employment Appeal Tribunal (EAT), arguing that the effectiveness of training that has been given was irrelevant to the question of whether it was a reasonable step. The EAT disagreed, finding that in assessing whether all reasonable steps had been taken consideration had to be given to the nature of the training and the extent to which it was likely to be effective. Whether initial training was effective would have an impact on the question of whether all reasonable steps had been taken or more needed to be done.
The purpose of the reasonable steps defense is to encourage employers to take significant and effective action to combat discrimination. Although there was sufficient evidence for the employment tribunal in this case to have reached its conclusion that the training was no longer effective, the EAT criticized the tribunal for failing to consider in more detail the steps the employer had taken to prevent the harassment.
The tribunal judgment seemed to accept that the training itself was adequate, just stale and in need of refreshment. The EAT meanwhile considered the training not to have been very impressive even for a relatively small employer, and it also criticized the quality of the equal opportunities and anti-bullying and harassment policies. As the EAT observed, the less effective the training is, the more quickly it will become stale.
This case highlights the need for employers to invest in good quality training—something that is both educational and memorable—if they are going to attempt to rely upon the reasonable steps defense.
Employers also need to consider whether refresher training is required and if so at what intervals—in this case the EAT had commented that the tribunal should, having found refresher training was needed, have considered the appropriate interval in its judgment.
In what is very much a sign of the times, the EAT also drew an analogy with the COVID-19 vaccination program. Not only are we interested in how effective the vaccine is in eliciting an immune response, but also how long that response will last. As with most things in people management, training is an ongoing requirement and not just a tick box exercise.
Sarah Gilzean is an attorney with Morton Fraser in Edinburgh. © 2021 Morton Fraser. All rights reserved. Reposted with permission of Lexology.