Out-Law / Your Daily Need-To-Know

'Expect discrimination training to be scrutinised by tribunals'

Out-Law News | 18 Feb 2021 | 10:47 am |

Trish Embley tells HRNews why poor quality training can cost employers

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  • Transcript

    Last week we asked the question – is your equal opportunities training up to date and effective? – highlighting the EAT’s decision in Allay Ltd v Gehlen where the employer’s 'reasonable steps' defence against a claim of racial harassment collapsed. The tribunal at first instance, and the EAT on appeal, both ruled the defence failed because the training, given over a year before the harassment, had become stale, evidenced by the racist comments and managers failing to report them when they were aware of what was going on. Kate Dodd, diversity and inclusion consultant, explained in some detail what went wrong. We are coming back to this case because the criticism of the training in the EAT's judgement is pretty strong and there are definitely lesson here for HR. So at paragraph: 

    37.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.

    38. The fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant in determining whether all reasonable steps have been taken to prevent harassment. Firstly, if management become aware that despite such training employees are continuing to engage in harassment, or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as a notification to the employer that they need to renew or refresh the training. 

    So let’s get reaction to that criticism from our own Head of Client Training, Trish Embley. Trish joined me by video-link from Birmingham:

    Trish Embley: "What this case shows us is that if an organisation is going to do harassment training then they really need to check the quality of that training particularly in terms of some of the legal complexities. So what's clear from this case is we have all got to be prepared to have our harassment training scrutinised by tribunals as the tribunal in this case did and just looking at the transcript, what they said in their judgement is ‘we were provided with PowerPoint slides from the training that defined harassment as behaviour which is intended to trouble or annoy someone, for example, repeated attacks on them, or attempts to cause them problems’. Now, I'm sure we'll all be aware that is very far away from the legal definition of harassment in the Equality Act and the tribunal went on to say, overall, the policies and training do not appear to be very impressive, even for a relatively small employer. So I think what we've got to acknowledge is that there are some really complex legal areas in the law of harassment, such as that point about the relevance of intent, such as what if people appear to go along with things like banter, and jokes, or even join in? How does that affect whether or not something is unwanted conduct? What about hypersensitivities? One of the questions we get asked a lot on our legal training is, well, couldn't somebody just say everything is offensive, and I think what's quite misleading in that example there was this reference to ‘anything that might trouble or annoy’. So where is the line? Where's that line between freedom of speech and what becomes unlawful harassment? So what's really important is that we check the training that we're going to give to make sure that it meets that quality bar.”

    Joe Glavina: “So assuming you’ve ticked that box Trish, and it is good quality training, how do you make sure it does the trick in practice?”

    Trish Embley: “We can run as many training courses as we like, we can have great policies, but what’s really important if we're going to prevent harassment taking place, and create truly inclusive workplaces, is that this is actually working on the ground. Now, in this case what came out in evidence is that two co-workers observed the harassment. The complainant went to a manager who said, ‘oh, well, you'd better go to HR’. So what the tribunal said is this revealed that the training hadn't worked because they were doing exactly what the training said you shouldn't do. Colleagues, the manager, they should have intervened, and that's why we've broadened the scope of our harassment training to encompass, which I think is so important, active bystander training, because we've all been in situations where you hear something and you think, oh, and then you don't know how to react in the moment. So that's what we cover in the active bystander training, particularly for managers. What are they expected to do in the moment? How can they intervene? How can they stop the harassment if they observe it and, crucially, what do they do afterwards? How do they follow up? I see a lot of managers through our training sessions who almost seem more anxious about tackling the perpetrator and the push-back they might get from them, than they are just letting things lie and not taking any action if, for example, nobody's made a formal complaint. So again, I think active bystander is crucial in making sure that if we are going to train people it is actually going to make a difference to behaviours.”

    Joe Glavina: “Yes as the judge says in this case, it's about understanding the importance of preventing harassment, having that mind-set, and a training course on its own is not enough." 

    Trish Embley: “Well, as Kate Dodd said in her interview, training is only one part of what should be a broader D&I initiative in any organisation. It's a good start, but it is certainly not the be all and end all. You know, I've talked about training, trying to secure changes in behaviours, but we also need changes in attitudes. If people are really going to understand this, and be able to take the action we want them to take, then it is a battle for hearts and minds and I think the training can go some way to sort of getting people's minds straight as to some of the issues I've touched on - what is unlawful harassment and what isn’t - but the battle for hearts really needs those nudges that Kate referred to. Constant reviewing of where you are as an organisation, where you are on that D&I journey, and constantly reminding people of why it's important and getting that emotional engagement where people feel that they want to do something about it, want to take action if they observe it, and just create a truly inclusive work environment.”

    That case is well worth reading – it's an important one for HR and it should help when it comes to arguing the case for your training budget. It is called Allay (UK) Limited v Gehlen – an EAT decision - and we have put a link to it in the transcript of this programme.

    LINKS


    -Link to case report: Allay (UK) Ltd v Gehlen
    https://www.bailii.org/uk/cases/UKEAT/2021/0031_20_0402.html