Is your equal opportunities training up to date and effective? If not it could wreck your chances of relying on the 'reasonable steps' defence at an employment tribunal. That is precisely what happened to the employer in a case handed down by the EAT which has been reported by The HR Director. A reminder, the Equality Act allows an employer to defend a claim if it can demonstrate that it took all reasonable steps to prevent those actions, or actions of that kind. Crucially, however, tribunals will examine how effective those steps have been. In this case, Allay Ltd v Gehlen, the Claimant was subjected to racist comments on a regular basis and brought a claim for harassment related to race. The employer relied on the 'reasonable steps' defence based on its provision of relevant training to the perpetrator and other employees. 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. In this case a reasonable step would have been to refresh the training, something they didn't do. So what do we make of this decision and what should employers be taking from it? To help with that, diversity training specialist Kate Dodd who joined me by video-link from Manchester:
Kate Dodd: “I mean this is a clear reminder for everybody that simply putting people through training, D&I training, or inclusive leadership or whatever you want to call it, is not going to be sufficient to establish the reasonable steps defence. For that, of course, an employer needs to show that it took all reasonable steps that were necessary to prevent something from happening and this case is a real reminder of the fact that it's not just about the training taking place, but it's about the quality of that training and also the impact it has on those people going through the training courses."
Joe Glavina: "This case is about having taken 'all reasonable steps' to prevent the discrimination – the racial harassment in this case – and that first word, 'all' is absolutely crucial isn't it Kate. So you can't simply point to a training course you've run in the past and expect that to be enough."
Kate Dodd: "No, absolutely, and actually we've long been saying that as a standalone thing, training in itself is not going to be sufficient and, of course, when we're talking about diversity and inclusion we're thinking about this from a mindset perspective rather than necessarily a tribunal perspective but, of course, the to go really closely hand in hand because if you have properly trained employees within a business who understand about the impact of their behaviours, they understand about things that are acceptable and unacceptable in the workplace, then, of course, that will help you to stay out of the tribunal. Training is only really going to be effective if it's part of a wider programme. There has to be some thought in there as to how this training is going to impact on people and how it's actually going to change their behaviour. Training alone is not going to do that, and particularly training on something, you know, this isn't training on health and safety or something that's quite clear or quite obvious to most people, training of this type is really about behaviour and therefore it does need to be part of a larger programme which is all around this idea of behavioural change."
Joe Glavina: "An interesting feature of this case, Kate, is the employer provided the perpetrator with training after the harassment, so they must have assumed they were on solid ground with their 'reasonable steps' defence. Yet the tribunal judge was having none of it."
Kate Dodd: "No, and it is a really interesting one and actually the judge in his case, I think, took quite a firm line on this, quite a firm view, and other judges may have felt differently. I think the essence of this case was the fact that the training was seen to be stale. They said it was two years old and actually the training in itself, the judge obviously looked beyond just the fact that oh this person has had training, and said the training was not sufficient in that case to avoid what happened happening. We talk a lot as a business, and also to our clients, about the importance of the quality of training but also the need for this training to be consistently part of a wider messaging programme. So, absolutely, it's right to put everybody through training, it's right to make sure that everybody gets proper access to that, but that has to be part of something wider. So we talk about nudges. So it's this idea about behavioural changes. So if I go into a training session I will have my eyes opened, I will listen to things, I will understand things, and that will have a kind of a halo effect, as it were, probably for a couple of weeks, I'll certainly feel differently that night, but the effect starts to dim over time and what's really important is to make sure that you've got a programme that then follows up with nudges, with events, with new initiatives, with refresher training etcetera to make sure that that training stays relevant in the minds of people and also to make sure that they recognise bias in themselves and, of course, as was important in this case, in other people, so that people understand to call that out when they when they see that going on"
Joe Glavina: "Do you think the fact this was a case of racial discrimination has a bearing?"
Kate Dodd: "Yes I do. I think it makes it more complex, and the reason I say that is because I think the events of 2020 have shown, and have highlighted in many businesses, how much silence there has been about race and race equality and I think the reason for that has been quite often due to a lack of confidence. So businesses, of course, have been keen to promote race equality for many, many years and they want their managers to act in a way that treats everybody equally and doesn't discriminate against anybody, but what businesses have been frightened of doing is saying the wrong thing or doing the wrong thing, and what businesses haven't been doing is equipping their people with the language that they need to talk about race because it can be difficult and we know that things move on and that language that was okay when I was growing up, and even more recently than that, isn't okay anymore and, actually, it's really important that the businesses create safe spaces for people to learn. That learning process, it has to be done by everybody, we can't rely on people to teach us. I think one thing that we've seen, that hasn't been great, is this kind of idea that, oh, well, these people are from a minority ethnic background therefore they need to teach us about what it's like to be from that background. We don't think that is the right approach and it's not a great situation to find yourself in any business. It's really important for the business to take control of this. It's important for the business to provide that learning and give people the space and the opportunity to ask questions, to challenge themselves, to understand about complex things like white privilege. You're not going to get that from a half an hour online training course, e-learning type thing. That kind of thing needs the opportunity for people to reflect, to understand and to ask questions."
That case is well worth reading – an important one for HR which 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.