In the recent Employment Appeal Tribunal Decision of Allay (UK) Ltd v Gehlen, an employee made a number of racist comments to a colleague, who was of Indian origin. When confronted about this, the employee described it as "racial banter". Two managers were aware of the racist comments but took no action, other than one giving the employee a mild rebuke. When the victim brought claims for race discrimination and harassment, the employer argued that it could not be responsible for the employee's behaviour, as the employee and the two managers had received equality and diversity training.
The Employment Tribunal and Employment Appeal Tribunal disagreed. They ruled that the employer was liable for the harassment, despite having provided equality and diversity training. According to the Tribunal, the training had become "stale" and needed to be refreshed as it had happened almost two years before the relevant incidents and, despite the training, the employee still made the racist comments and the two managers failed to respond appropriately. The EAT also noted that, following its investigation, the employer had decided to provide the employee with further diversity training; it would not have done so unless it thought additional training might be effective.
This case is a stark reminder of the importance of regular and effective training on equality and diversity. The case makes it clear that simply having superficial or 'one off' training will not be enough to prevent employers being liable for discrimination and harassment carried out by employees. The training must be detailed and regularly refreshed so that it remains relevant and front of mind for staff. The EAT commented in this case that "brief and superficial training is unlikely to have a substantial effect in preventing harassment nor will it have long-lasting consequences". Tribunals may therefore scrutinise at the quality, as well as the frequency, of the training.
We regularly provide equality and diversity training and refresher sessions for our clients' staff and their managers, which is typically workshop and case study based. Please get in touch with your usual Employment department contact if you would like to discuss.
