The recent case of Allay UK Ltd V Gehlen UKEAT/0031/20/ is a salutary reminder to employers that they cannot rest on their laurels where equalities and diversity training is concerned.
In this case, the Claimant, who was of Indian origin, worked as a data analyst. He was employed on 3 October 2016 and dismissed for poor performance on 14 September 2017. Following his dismissal, he alleged that he had been subject to racial harassment by a fellow colleague.
An investigation by the company revealed that discriminatory remarks had been made and that two managers were aware of it but took no action. The complaint was upheld and the perpetrator was given additional equalities training.
At Tribunal, the employer sought to rely on the defence provided by S.109(4) Equality Act 2010. This provides that, whilst an employer will be potentially vicariously liable for harassment carried out by its employees, it will have a defence if it can show that it “…took all reasonable steps to prevent [the employee] from doing [the harassment]”. This means being able to demonstrate that it has adequate policies and procedures in place and staff have been trained appropriately on equalities issues. The burden of proving that all reasonable steps have been taken falls on the employer.
Although the employer in this case had Equal Opportunities and Bullying and Harassment Policies in place, this was held not to be sufficient to meet the reasonable steps test. The Equal Opportunities policy was criticised by the Tribunal for not referring to the Bullying and Harassment policy; the Bullying and Harassment policy was criticised for making no mention of race. Although all those involved had received some equalities training back in 2015, this was found to be stale. A “reasonable step”, so the Tribunal said, would have been to refresh that training, as it was clear by the employees’ inaction in reporting the harassment that they did not do what the training required of them.
The EAT upheld the Tribunal’s decision. A quick nod to equalities issues via out of date policies and/or superficial training will not be sufficient to protect an employer. Employers must ensure that the training provided to staff is effective. They must review that training regularly to ensure that it remains effective and take immediate action where it becomes evident (as in this case) that further training is required.
Comment
In many respects, the decision in this case is hardly surprising. Many employers don’t provide any equalities training at all; for others, it may be a tag-on to the induction process. Staff Handbook reviews often remain last on a long list of priorities. Yet equalities issues have rarely been out of the legal spotlight. In recent years, we have seen the introduction of gender pay gap reporting; the #metoo and #blacklivesmatter movements; the boundaries of “protected characteristics” are being stretched every day (who can now forget that ethical veganism is a “philosophical belief”?); and various consultations are ongoing in relation to gender reassignment, sexual harassment, boardroom diversity and ethnicity pay gap reporting.
In short, equalities issues are an ever-evolving and ever-moving target – and this does not look set to change any time soon. Our advice for employers is to check your training records and if you need a refresher course, contact our team here at Prettys who will be happy to help. After all, prevention is better than cure!
