Racial harassment claim succeeds because diversity training was “stale”

The Employment Appeal Tribunal has found that an employer could not rely on the ‘reasonable steps’ defence in a claim of racial harassment. This was because the employer’s equality and diversity training which had taken place around two years earlier, had become ‘stale’ and ineffective.

What is unlawful harassment?

Harassment is a legal concept, defined under the Equality Act as unwanted conduct related to a relevant protected characteristic (such as someone's age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation) which has the purpose or effect of either violating an individual’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

However, employers can rely on the ‘reasonable steps’ defence if they can show that they took all reasonable steps to prevent the employee from either committing a particular discriminatory act or committing such acts in general. This is a high threshold for employers to meet and is not simply a tick box exercise.

Background to the claim

In this case, the Claimant, who describes himself as being of Indian origin was dismissed by Allay (UK) Ltd on 15 September 2017 for performance-related reasons. Following his dismissal, the Claimant complained that he had been subjected to racial harassment by another employee, Mr Pearson. An investigation established that Mr Pearson had made racist comments and he was ordered to undertake further equality and diversity training.

The Claimant brought claims against his former employer, including a claim of harassment. Allay (UK) Ltd sought to rely on the ‘reasonable steps’ defence. The Tribunal rejected the defence and upheld the complaint of harassment, accepting that employees had received training that covered harassment related to race, but noting that the training had been delivered in early 2015 and was “clearly stale”.

The Tribunal found that Allay (UK) Ltd had not taken all reasonable steps to avoid discrimination; a reasonable step would have been to provide refresher training.

Employment Appeal Tribunal decision

Allay (UK) Ltd appealed to the Employment Appeal Tribunal, but the appeal was dismissed. The Employment Appeal Tribunal concluded that in considering the reasonableness of the steps an employer has taken, 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.

There was sufficient evidence for the Tribunal to conclude that whatever training there had been, it was no longer effective. The fact that Mr Pearson thought that what he was doing was no more than “banter” was evidence that the training had faded from his memory, and the fact that managers did not know what to do when they observed harassment, or it was reported to them, suggested that the training had also faded from their memories.

What does this decision mean for employers?

This decision has significant implications for employers if they do not regularly update their equality and diversity training or think of such training as a mere tick box exercise. As part of that training, employees need to understand that unlawful harassment can occur even if there was no intention to harass. There is a real subjective element to determining this: if the recipient felt violated or intimidated or felt that the environment was hostile, then it doesn't really matter what the intention was.

There are a number of key practical steps that employers can take in order to have a better chance of relying on the ‘reasonable steps’ defence, including:

• Regular refresher training, annually or more frequently if needed;
• Consider post-training tests at regular intervals following the training to ensure those who have undertaken the training understood it;
• The training must not be a tick box exercise: the EAT confirmed “brief and superficial training is unlikely to have a substantial effect in preventing harassment” – the contents and quality of the training must be thorough, updated when required and relevant to current issues;
• Employers should not ignore the importance of such training just because many employees are working from home – harassment can take place online and so can refresher training;
• Review equality and diversity policies and ensure they deal with harassment and other discriminatory conduct – are they current and effective? Do employees know that they exist?
• Is the training being applied in practice? Are managers and employees taking appropriate action when and if such instances of harassment occur?

Allay (UK) Ltd v Gehlen [2021] UKEAT/0031/20/AT