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The Employment Appeals Tribunal (EAT) has recently confirmed that an employer cannot rely on the ‘reasonable steps’ defence to a claim of harassment under section 109(4) Equality Act 2010 even where it has provided training to its employees, if that training has become stale and in need of refreshing.
In Allay (UK) Ltd v Gehlen the Claimant complained that he had been subjected to harassment related to race by a colleague. The Respondent investigated the allegations and it was found that the colleague had, in fact, made racist comments towards the Claimant. The perpetrator was made to undergo further equality and diversity training.
In defending the claim, the Respondent argued that it had taken all reasonable steps to prevent its employees (and, in particular, the perpetrator in this case) from committing discriminatory acts, by providing them with equality and diversity training. The Respondent also had an equal opportunity policy and an anti-harassment procedure in its staff handbook.
In the first instance, the tribunal rejected this defence and upheld the claim for harassment. The EAT upheld this decision on appeal.
The EAT, in assessing the reasonableness of the steps taken by the Respondent, found that the training that had been given had become “stale”. The training took place over a year before the harassment began and that, despite the training, managers who were aware of the harassment failed to take any action. Instead, the EAT commented that “brief and superficial training is unlikely to have a substantial effect in preventing harassment… Thorough and forcefully presented training is more likely to be effective and to last longer.” In this particular case, this was even more important because three members of staff (including two managers) were aware that the comments were being made and did not take steps to prevent this from taking place. This, the EAT suggested, meant that “the Respondent should have appreciated that they needed to do more to prevent harassment and provide some further training.”
This case offers employers a perfect example of the detailed policies and procedures that employers should have in place, together with the steps they should be taking to reinforce such policies, in order to have a persuasive defence to vicarious liability claims.
As the world moves increasingly to home working, there are reports of increased levels of harassment in the workplace and this case serves as a timely reminder that simply having an equal opportunities policy and/or anti-harassment procedure in place may not always be sufficient and that there are extra steps for employers to take.
Employers should check that their internal policies, procedures and training are up to date, detailed and relevant to the particular needs of the business. Generic and/or template policies and procedures may not cover precisely what is required when taking into account a particular businesses ways of working, and wider workforce, and whilst it is important that employers capture all relevant areas of anti-harassment and anti-discrimination practice, a tailored approach should be taken.
Employers should, as a minimum, also ensure that regular and thorough equality and diversity training is provided to staff. This should be offered to the wider workforce but targeted specifically at those employees who may have to deal with sensitive issues such as recruitment, grievances and/or disciplinary matters. Where areas of weakness are identified, these should be dealt with appropriately and as quickly as possible. Learning points should be taken and the training package should then either be updated or reinforced. Employers may also wish to consider putting in place a review procedure so that they can assess how effective the training has been. This could be by way of requiring employees to attend short refresher sessions or by implementing testing for employees at regular intervals after the training has been provided.
Flint Bishop’s employment and HR specialists are able to offer bespoke training packages to meet the needs of individual employers and are on hand to undertake a thorough review of internal policies and procedures to ensure that they are kept up to date and remain fit for purpose.
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