Is Your Organisation’s Discrimination and Harassment Training ‘Stale’?

An employer has lost a claim for race harassment after being unable to show that it had taken all reasonable steps to prevent an employee from being harassed by his colleague. Whilst the employer had given training to employees and managers on discrimination and harassment the employment tribunal found that the training had become “stale”.

The case of Allay (UK) Ltd v Gehlen highlights the need to ensure that training is of a good quality and is appropriately refreshed.

The Facts of the Case

The employee who described himself as being of “Indian origin” worked as a Senior Data Analyst from October 2016 until September 2017 when he was dismissed. Following his dismissal, the employee complained that he had been subjected to racial harassment by a colleague. The employer investigated the matter and found that the employee’s colleague had made such comments, which he thought of as ‘racial banter’. The employee’s complaint was upheld and the colleague was given further discrimination and harassment training. The employee complained to an employment tribunal that he had been directly discriminated against because of his race and that he had been subject to harassment related to race.

The tribunal upheld the employee’s race harassment claim:

  • It was found that the employee was regularly subjected to racial comments by his colleague, including being asked why he was in the country and comments to the effect that he should go and work in a corner shop. This was harassment for which the employer was vicariously liable.
  • The employer had tried to defend the case on the basis that they had taken all reasonable steps to prevent the harassment, however they were unsuccessful in doing so. Whilst the employer had in place an equal opportunities policy and anti-bullying and harassment policies and had given employees and managers training on this in 2015, this was not found to be sufficient. The tribunal found that the training was clearly “stale” and the employer had not taken all reasonable steps to avoid harassment in the workplace as a reasonable step would have been to refresh the training. The tribunal found that the fact that discriminatory remarks were made to the employee, his colleague thought they were ‘banter’ and that the managers failed to follow their employer’s procedures when becoming aware of those remarks showed that the training needed to be refreshed.

The employer appealed the Employment Appeal Tribunal (EAT) arguing that the tribunal had failed to properly engage with its defence. The EAT dismissed the appeal, finding that the tribunal was entitled to conclude the training was stale and no longer effective to prevent harassment, and there were further reasonable steps that the employer should have taken. The EAT noted that the tribunal did not make any findings about the policies, or the content or effectiveness of the training, but it commented that the “policies and training do not appear to have been very impressive, even for a relatively small employer”. The EAT emphasised that an employer seeking to rely on the defence that it has taken all reasonable steps to prevent discrimination or harassment has to cross a high threshold.

Kingfisher’s Advice

Ensuring appropriate policies, procedures and training is in place are important steps for employers when it comes to helping to protect their organisation. Whilst many employers provide training to managers and employees on discrimination and harassment, it can be easy to overlook the need to provide refresher training. Not only can periodic high quality training help to reduce the likelihood of issues such as harassment arising in the first place, it can also help to put employers in a better position if an issue does occur. Where training has been provided, it’s important to remember to keep an appropriate record to evidence what has been done.

If you would like help with an employment law matter or information on training packages that Kingfisher Professional Services Ltd can provide as an additional service please do not hesitate to contact us.

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