The recent Employment Appeals Tribunal (EAT) case of Allay (UK) Ltd v Gehlen found that the employer could not rely upon the ‘all reasonable steps’ defence to a claim of racial harassment as the training provided to its employees less than two years earlier was deemed “stale”.
This decision has highlighted the importance of employers providing up to date and meaningful training to its employees regarding appropriate workplace behaviour. It also reinforces the need for employers to provide regular refresher training in order to avoid it becoming “stale”, which it seems can happen rather quickly.
In its original decision on 7 March 2019, the Employment Tribunal found that ‘the training which had been delivered was several years before the events in question and was clearly stale. We do not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training’.
Section 109(4) of the Equality Act 2010 sets out the ‘reasonable steps’ defence which the Respondent in this case sought to rely upon. An employer is able to defend claims for discrimination where it is able to show that it took all reasonable steps to prevent the employee ‘from doing that thing, or from doing anything of that description’.
The EAT in Allay v Gehlen held that the Employment Tribunal ‘were entitled to conclude the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken’.
It is worth highlighting some of the observations made by the EAT in reaching its conclusion: -
- ‘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’;
- ‘It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective. If training involved no more than gathering employees together and saying "here is your harassment training, don't harass people, now everyone back to work", it is unlikely to be effective, or to last’; and
- The Respondent’s ‘equal opportunities policy does not make any reference to harassment. The anti-bullying and harassment procedure only refers to harassment in the title; the document thereafter only refers to bullying, and makes no mention of race’.
In light of the above considerations, it would be prudent for employers to take some time to review their current policies in relation to the provision of workplace training, equal opportunities, and anti-bullying and harassment to ensure that employees are fully aware of the consequences of inappropriate workplace behaviour.
We offer tailored training courses for HR teams, operational managers and in-house legal teams which are designed to meet the needs of your organisation. We also offer an Appropriate Workplace Behaviour training course, the details of which can be found here.
If you would like to know more about our workplace training courses for employees please contact us.