When considering whether an employer had acted reasonably in response to claims of harassment/discrimination, it is not sufficient for the employer to say that they provided training. It is necessary to look at the nature of the discrimination and harassment training issued to staff, whether it was likely to be effective and whether it needed to be refreshed on a regular basis. So ruled the court in Allay (UK) v Gehlen (Feb 2021). (Case Link)
Mr Gehlen (G) described himself as of Indian origin. After his dismissal in 2017, he complained that he had been the victim of racial harassment by work colleagues. The complaint was upheld by the company and the perpetrator was instructed to undertake further training on equality and diversity. When G issued tribunal proceedings, including a claim for harassment, the employer defended that claim by saying that all employees had received training in the past and that the abuser was ordered to undertake further training. The defence failed and the tribunal upheld the harassment claim. Whilst the tribunal acknowledged that equality and diversity training had been provided, it was done in 2015 – 2yrs before the incident, and it was obvious that the training had become “stale”. They felt that a reasonable step would have been to provide regular refresher training. The fact that the perpetrator was ordered to take further training was proof itself that the training was ineffective. Although staff had received training, they continued to make discriminatory comments, and observers in close proximity heard the comments yet failed to report them. This was indicative of an ineffective and “stale” training and/or policy. The employer appealed.
Employment Tribunal Decision
The EAT dismissed the appeal. When looking at the reasonableness of steps an employer has taken, it is not sufficient merely to say that training was provided to staff. “It is the nature of that training and its likely effectiveness which is important”. The EAT said “considering this matter in the current Coronavirus pandemic, as we look forward to widespread vaccinations, we are interested not only whether the vaccine will be effective but also how long the immunity will last. There is an analogy to me made; how effective will training be to prevent harassment, and how long will it last”. The fact that bystanders heard the comments, the fact that they failed to report it, the fact that such comments were seen as banter and managers took no action, was sufficient for the tribunal to conclude that the training was ineffective.
In conclusion, simply saying “we provide training” will not be adequate to defend claims. Employers must constantly update their training materials and provide refresher training on a regular basis to ensure that the message remains fresh and firmly embedded. Failure to do so may lead to successful claims.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
Source: gov.uk
