Andrew Willshire | 8th February 2021

Harassment in the workplace : the importance of equality and diversity training

SHARE

Andrew Willshire | 8th February 2021

Harassment in the workplace : the importance of equality and diversity training


In the recent harassment in the workplace case of Allay (UK) Limited v Gehlen, the Employment Appeal Tribunal (EAT) upheld an Employment Tribunal’s decision that the employer (Allay (UK) Limited) could not rely on the reasonable steps defence when defending a claim for racial harassment.

Harassment in the workplace defined

In this blog we particularly look at racial harassment in the workplace but the guidance relates to all cases of harassment.

Racial Harassment

The Equality Act 2010 contains a definition of harassment in the employment context. It states that:

A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:

  • The perception of B;
  • The other circumstances of the case; and
  • Whether it is reasonable for the conduct to have that effect.

The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

Vicarious liability

For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee’s acts were done with the employer’s knowledge or approval.

Therefore, an employer can be vicariously liable for discrimination, harassment or victimisation committed by an employee in the course of employment. However, there is a defence available to the employer- the reasonable steps defence.

Reasonable steps defence

Where an employee has committed an act of discrimination, harassment or victimisation against a colleague, the employer will not necessarily be liable. It might have a defence. Section 109(4) of the Equality Act 2010 states:

In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A-
(a) from doing that thing, or
(b) from doing anything of that description.

Therefore, an employer will avoid liability if it can show that it took all reasonable steps to prevent its employee committing a particular discriminatory act or committing that type of discriminatory act.

To succeed with a reasonable steps defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient.

Reasonable steps will usually include:

  • having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate;
  • making all employees aware of the policies and their implications;
  • training managers and supervisors in equal opportunities, equality and diversity and harassment issues; and
  • taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

The facts of the case

The facts of Allay (UK) Limited v Gehlen were as follows. The Claimant complained that he had been harassed by a fellow employee because of his race. The Respondent found that racist comments had been made to the Claimant and the offending employee was instructed to undertake further equality and diversity training.

The Claimant brought a claim for racial harassment against the Respondent and the Respondent sought to rely on the reasonable steps defence. The Employment Tribunal rejected the Respondent’s reasonable steps defence on the ground that, although equality and diversity training had been given to staff in early 2015, this was now “stale” and ineffective.

Importantly, the Tribunal found that a reasonable step would have been to provide refresher training for equality and diversity within the workplace. Accordingly, the Respondent had not met the reasonable steps threshold. The Respondent appealed to the EAT.

The EAT dismissed the appeal. Its reasoning was as follows:

  1. The training provided by the Respondent was stale and should have been updated;
  2. Simply providing training is not sufficient. An employer must be conscious of the nature and effectiveness of the training;
  3. The EAT referred to the fact that, not only had racist comments been made by a fellow employee, but another employee (who heard the comments) had failed to report this. This was further evidence that the training received years ago was no longer effective to prevent discrimination in the workplace;
  4. When managers of the Respondent became aware that harassment was taking place, they should have done more to prevent it, including providing updated equality and diversity training to staff;
  5. Accordingly, the Tribunal was entitled to conclude that the diversity training was stale and, accordingly, the Respondent could not rely on the reasonable steps defence.

Comment

This is a stark reminder to employers that providing regular and up to date equality and diversity training to staff is crucial, not only in preventing discrimination in the workplace, but also to show that reasonable steps have been taken to prevent discrimination in the workplace, should a claim be made against them.

In this case, training had been provided early in 2015 and the harassment had taken place during n 2017. However, it wasn’t just the time that had elapsed, the Tribunal also considered that the training had been ineffective. In this regard, the Employment Tribunal considered it relevant that colleagues and managers had either heard or been told about the racial harassment but had not taken any meaningful action.

The EAT commented that, where training has not been effective, further action will be required, even if refresher training would not usually have been provided within such a timescale. The EAT’s judgment included the following:

  • If management become aware that despite such training employees are continuing to engage in harassment, or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as a notification to the employer that they need to renew or refresh the training.
  • The fact that harassment takes place after such training, even if unknown by the management at the time, may provide some evidence that demonstrates the poor quality of the training that was provided, particularly if it is not only the alleged harasser who did not understand the training, or act on it, but that was also the case with other employees.

The case makes it clear that employers cannot automatically rely on training provided years ago and the training provided must be effective.

Action points for employers

  1. The Employment Tribunal and EAT were clear that equality and diversity training should not become stale. Therefore, employers would be well advised to review when they last provided equality and diversity training to staff. If this was several years ago, then employers should carefully consider if refresher training should be provided.
  2. Employers should choose their training provider carefully and make sure the training is of good quality.
  3. We recommend separate or additional training for managers to ensure they know how to deal with “banter” in the workplace which might be unlawful harassment and what to do if they see or hear harassment taking place.
  4. Training will need to be regularly reviewed by employers and a careful assessment made as to whether refresher training is required.
  5. Put in place an anti-harassment policy and equal opportunities policy if you do not have one. This will be further evidence to show an Employment Tribunal that reasonable steps have been taken to prevent discrimination in the workplace. Employers should make sure employees are aware of these policies.
  6. Make sure allegations of discrimination in the workplace are dealt with effectively, consistently and in line with your policies.

Paris Smith Training

At Paris Smith LLP, we offer a variety of training for line managers, including equality and diversity training. We also offer in house training. If you would like to know more about the training we offer, please visit our designated Training page.

If you would like to discuss the training we provide in further detail, do not hesitate to contact me.