Training which has become “stale” and out of date will not be sufficient to establish the “reasonable steps” defence to harassment, so held the Employment Appeal Tribunal (EAT) in the recent case of Allay v. Gehlen.
The Claimant, who described himself as being “of Indian origin”, was subject to racist comments at work on a regular basis. He subsequently raised a claim for harassment related to race, in which the employer sought to rely on the “reasonable steps” defence – i.e. that it had taken all reasonable steps to prevent the discriminatory act. In support of this defence, the employer argued that it had provided equality and diversity training to its employees.
When looking at whether an employer has established this defence, a tribunal is entitled to consider how effective the steps taken were, or were likely to be.
Although the EAT accepted that the training had taken place, it upheld the tribunal’s decision to reject this defence given that the training was delivered more than a year prior to the acts, and had clearly become “stale”.
This was evidenced not only by the racist comments themselves having been made, but by the fact that a colleague who overheard the comments did nothing, and two managers who were aware of the behaviour also failed to take any action in response.
Further, there was nothing to suggest that refresher training would not have been effective. Indeed, the EAT concluded that the employer must have considered that it was likely to be effective as it had provided the harasser with further training after the event.
So what does this mean for you as an employer?
This case serves as a useful reminder that you must not only provide training to your employees, but that you must also refresh and keep that training up to date.
In these disrupted times, where training may have fallen down the priority list, this is perhaps a timely warning to take another look at your training history, and to timetable any “top-ups” required.
