Time for a refresh: is your race equality training fit for purpose?

An important case involving racial harassment provides helpful guidance on the seldom used reasonable steps defence. In particular, it is a useful reminder for employers that successfully relying on the reasonable steps defence in discrimination claims is not simply a tick-box exercise; equality training needs to be of a certain standard and kept up to date to be considered effective.

The legal basis

An employer is vicariously liable for the discriminatory actions of their employees under section 109(4) of the Equality Act (2010), unless it can demonstrate that it took “all reasonable steps” to prevent the employee from undertaking the acts in question. The burden of proof lies with the employer.

The facts

In Allay (UK) Limited v Gehlen, the Claimant was dismissed for performance-based reasons. Following the Claimant’s dismissal, he raised an internal complaint that a fellow employee had subjected him to a campaign of racial harassment. An investigation established that his colleague had made racist comments. Following the investigation his colleague was required to undertake further equality and diversity training.

The Claimant then raised claims for race discrimination and racial harassment in the tribunal. In response, the employer sought to rely on the reasonable steps defence on the basis that by providing equality and diversity training to the alleged harasser, the employer had taken all reasonable steps to prevent the alleged harasser’s actions. Whilst the tribunal accepted that the Respondent did indeed have an Equality and Diversity policy in place and that the alleged harasser had received equality and diversity training in 2015, it found that the training was “clearly stale” and was no longer effective to prevent the harassment.

Whilst the training did cover race-related harassment, the training had been delivered several years prior to the events in question, and the tribunal found that the need for refreshing the training was clearly demonstrated by the (lack of) action of the employee’s managers when hearing the racial comments. The training had covered what employees should do upon hearing racial comments; the very fact that the employees did not adhere to the guidance and process in the training clearly displayed the need for the training to be refreshed.

The tribunal therefore did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace. It ruled that the fact that the employer had failed to refresh or update the training meant that not all reasonable steps that could have been taken were in fact carried out and the racial harassment claim was successful.

The Appeal

The employer appealed on the basis that the tribunal had relied on the fact that the training had ceased to be effective, rather than focussing on the legal test which they argued was whether all reasonable steps had been taken. The EAT explained that the effectiveness of the training was a relevant factor. While the first step is to consider what steps have been taken by the employer to prevent the harassment (for example equality training) the next step is to consider whether any other reasonable steps should have been taken. Whether the first step (i.e the training) was effective will be a factor in deciding whether further steps are reasonable. At that stage cost and practicality of taking the further steps are also relevant.

The court explained that “In considering the reasonableness of steps that have been taken the analysis will include consideration of the extent to which the step, or steps, were likely to prevent harassment. Brief and superficial training is unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective, and to last longer.”

Comment

The decision in Allay v Gehlen is a reminder for employers that they will not be able to rely on the reasonable steps defence simply by having an equality and diversity policy in place and providing recycled, general and untailored training.

The training must be evidenced to be suitable, relevant and up-to-date. The EAT drew a comparison with the current COVID-19 pandemic and the anticipation of the mass vaccination programmes; just as we are currently not certain if the vaccine will be effective or how long immunity will last, employers will often not know how effective equality and diversity training will be in preventing harassment, and how long will it last.

Over the past few years in the wake of the #MeToo campaign and more recently the BLM movement, we are seeing many employers invest more seriously (both in terms of time and money) in the training they are providing on equality and diversity.

Whether in any given case the steps taken by an employer would be sufficient to successfully argue that it had taken all reasonable steps to prevent the discriminatory action in question, will depend on all of the circumstances of the case. However, this case highlights that it is an area that needs active thought and review by employers; providing training on equality and diversity on induction, for example, will not be sufficient.

What steps should employers take?

Employers should look at their activities in this area as multi-layered and ensure that training is tailored for the role the individuals perform. So, as a starting point, ensure that all employees are aware of and understand any equality and diversity policies the organisation has in place, and have been provided with up to date and relevant equality and diversity training. But do not stop there.

Employers should consider, for example, providing training to managers on their obligations to “set the tone” and to actively deal with potentially discriminatory treatment which they witness or are made aware of regardless of whether a formal complaint is made.

Likewise, investigating allegations of harassment is complex and needs careful handling so employers should consider providing tailored training to those charged with investigating complaints of discriminatory treatment so that they understand the subtleties in this area.

We are of the view that the standard imposed by the reasonable steps defence for employers is not unattainable and should not be “written off”. However, to have a chance of succeeding with the defence, employers must consciously consider the steps they take across their organisation and actively challenge whether these are sufficient and effective.

If you would like any further information on refreshing your equality training then please speak to your normal contact in the CMS employment team.