The Importance of Regular Equality and Diversity Training: A Case Study

The recent case of Allay (UK) Ltd v Gehlen has highlighted the importance of employers providing regular and effective equality and diversity training for their staff.

The background

An employer will have a defense against a claim for an act of harassment committed by one employee against another where the employer can show that it took all reasonable steps to prevent the employee from perpetrating such an act.

Having an Equality and Diversity policy is a good start, but the Gehlen case emphasizes the importance of keeping this up to date and for employees to be provided with regular, quality training on this issue.

The facts of the case

The Claimant, who describes himself as being "of Indian origin", was employed as a senior data analyst by the Respondent from 3 October 2016 until his dismissal on 15 September 2017. After his dismissal, the Claimant complained he had been subjected to racial harassment by a fellow employee during his employment. The employer undertook an investigation which determined that the Claimant's colleague had made racist comments, which he characterized as "racial banter".

The Claimant subsequently brought proceedings to the employment tribunal for direct race discrimination and harassment related to race. The tribunal upheld the complaint of harassment related to race.

The tribunal found that the Claimant's colleague regularly made racial comments to the Claimant. Additionally, the tribunal found that one of the Claimant's colleagues and two managers were aware of the racist comments but took no action, other than one manager issuing the perpetrator with a mild rebuke.

In this case, the employer had an equality and diversity policy but it had not been updated for a number of years. Similarly, employees had been provided with equality and diversity training, but this had not been refreshed or updated and had been conducted about one year and eight months before the Claimant began his employment and two years and eight months before his dismissal.

The fact that managers took minimal and only informal action upon becoming aware of discriminatory comments demonstrated the lack of understanding of the importance of the issue amongst the workforce; this was a result of the employer’s failure to train its staff effectively. 

Findings from the Employment Appeal Tribunal

The Employment Appeal Tribunal identified, from previous case law on the subject, that there is a three-stage approach to the question of whether the employer has taken all reasonable steps:

1. Identify any steps that have been taken.

2. Consider whether they were reasonable.

3. Consider whether any other steps should reasonably have been taken.

The third point is crucial. In determining whether steps are reasonable, the following factors should be considered:

1. Likelihood of steps being effective in preventing discrimination (however it does not need to be more likely than not)

2. Cost

3. Practicality

It’s clear that having equal opportunity policies and procedures is not enough for an employer to escape liability for acts of discrimination carried out by its employees. However, this case emphasizes that the mere fact of having training on those policies and procedures is also insufficient; the quality of the training is a significant factor.

In this case the EAT noted that "brief and superficial training is unlikely to have a substantial effect in preventing harassment nor will it have long-lasting consequences". It is also clear that if an employer has cause to believe that employees have forgotten the training, it should be refreshed.

Final thoughts

In light of this, employers should ensure that workplace training on discrimination is substantial in nature and conducted regularly, perhaps annually (if this is proportionate based on the size of the business and available resources), to avoid it becoming "stale".

If an employer wishes to rely on the defense that it took all reasonable steps to prevent discrimination, it must take a zero tolerance approach to any act of discrimination and it must ensure that it properly assesses the most effective way to impress this on their staff.