A summary of the decision in Allay (UK) Limited v S Gehlen and a reminder to employers to keep equal opportunities training up to date to be able to rely on the all reasonable steps defence under s 109 (4) of the Equality Act 2010.
It is common for employers to provide employees with equal opportunities training, to underpin workplace culture as well as to prevent discrimination from taking place. A recent case, however, provides a salutary reminder to keep such training up to date.
Purpose of equal opportunities training
As well as using equal opportunities training to support culture, values and behaviours within an organisation, many employers seek to rely on such training when defending complaints of discrimination brought against them as part of the reasonable steps defence under s 109 (4) of the Equality Act 2010. The defence relies on the employer having taken all reasonable steps to prevent an employee from committing a particular discriminatory act, such as through the provision of relevant training to all its employees.
The adequacy of such training in the context of the reasonable steps defence was considered in the case of Allay (UK) Limited v S Gehlen.
Facts of the case
The Claimant describes himself as being of Indian origin. He was dismissed in September 2017 for performance-related reasons following which he raised a complaint of harassment related to his race. His former employer investigated the complaint and concluded that a colleague had made racist comments, which the colleague thought was no more than banter, as a result of which the colleague was made to attend further equality and diversity training.
The Claimant brought various claims against his former employer, including a complaint of harassment on the grounds of his race. The employer sought to rely on the reasonable steps defence, relying on the fact that the colleague had received training that covered harassment related to race early in 2015.
Both the initial Employment Tribunal and the Employment Appeal Tribunal (EAT) found that the reasonable steps defence was not be available to the employer on the basis that the training relied upon had become “stale”. In particular, the EAT took into account the fact the training had been given over a year (1 year and 8 months) before the racist comments were made, it was accepted that the racist comments were made, a colleague who overheard the comments did not report the matter and two other managers in the organisation also failed to report the comments, once they had become aware of them, indicating that the previous training was no longer effective.
In addition to the fact the training provided by the employer was considered to have become “stale”, the EAT also held that a further reasonable step for the employer to have taken would have been to refresh the training. When considering whether refresher training is a further reasonable step that could have been taken the EAT held that Employment Tribunals should consider both the nature of the training received to date and the effectiveness of such training.
The fact that refresher training was provided by the employer to the colleague following the incident in this case suggested that further refresher training would have been effective and therefore, another reason why the employer had not taken all reasonable steps on this occasion.
What does this mean for employers?
It is likely in the future, where an employer raises the reasonable steps defence Employment Tribunals will scrutinise the employer’s policies, procedures and training provided to make detailed findings as to the adequacy of such training, when it occurred, whether it remains effective and how regularly it has and should have been refreshed following the EAT’s comments in this judgement.
Ultimately the EAT suggested that the all reasonable steps defence is a high threshold to meet and reminded employers that the burden of proof to meet this threshold is with the employer.
This decision presents another task for HR teams to get to grips with in 2021 - to refresh and implement effective training on diversity and inclusion for all employees. If you need any assistance with the review of your training or the provision of such training, please do not hesitate to get in touch.