Search

How can we help?

Icon

‘Stale’ equalities training no defence to race claim

The case of Allay (UK) Ltd v Gehlen, is stark warning to employers not to rely on ‘stale’ or ‘ineffective’ equalities (equal opportunities and anti-harassment) training as a defence to claims of unlawful discrimination. In its recently published judgmentthe Employment Appeal Tribunal went even further stating that it would expect colleagues, and especially managers, to report an act of discrimination and harassment to HR or managementrather than ignoring it or telling the victim to report it them themselves. 

The law – ‘the reasonable steps’ defence  

Under the Equality Act 2010, S.109, when a worker commits an act of unlawful discrimination in the course of their employment, their employer is treated as having committed the act itself. An employer haa statutory defence to discrimination and harassment claims if it can prove that it has taken ‘all reasonable steps’ to prevent the unlawful conduct happening in the first place.  

The case of Allay (UK) Ltd v Gehlen 

Mr Gehlen described himself as being ‘of Indian origin’ and complained that he had been subjected to harassment related to his race by a colleague, Mr PeacockUnder investigation Mr Peacock admitted to engaging in what he called “racial banter” with comments such as go and work in a corner shop.   

When Mr Gehlen brought claims against Allay including a claim of harassmentAllay sought to rely on the ‘reasonable steps’ defence under S.109(4). The tribunal rejected Allay’s defence and upheld Mr Gehlen’s claim for harassmentThe tribunal noted that while Allay had given equality and diversity training, included harassment related to race to its workforce 2 years earlier that training was clearly ‘stale’ and ineffective 

The tribunal concluded that the training was stale not just because Mr Peacock hamade the comments but because three colleagues had failed to properly react to the harassment. A reasonable step for Allay to have taken would therefore have been to provide refresher training.   

 In its recently published judgmentthe Employment Appeal Tribunal went even further stating that it would expect colleagues, and especially managers, to report an act of discrimination and harassment to HR or managementrather than ignoring it or telling the victim to report it them themselves. 

What equalities lessons for employers? 

In its judgment the EAT warns that in considering the reasonableness of the steps an employer has taken, it is not enough to ask whether there has been training but also the nature of the training and how likely is to be effective.  

Here is an extract from the EAT judgement that sums it up: “If training involved no more than gathering employees together and saying, “here is your harassment training, don’t harass people, now everyone back to work”, it is unlikely to be effective, or to last  

Our advice is that if it becomes clear that despite training staff are continuing to engage in harassment, or do not understand the important of preventing it and reporting it to managers, employers should take this a clear signal that more effective training is urgently needed 

Finally bear in mind that this warning does not just apply to acts of racial harassment but to also to discrimination and harassment related to other protected characteristics under the Equality Act. 

For further advice equalities and diversity training, or on any other employment law or discrimination issue contact our employment team.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 16 May 2024
  • Immigration

What Employers need to know about Biometric Residence Permits

Biometric Residence Permits (BRPs) are biometric immigration documents that are issued to non-EEA nationals and EEA nationals, who have been granted permission to stay in the UK.

art
  • 14 May 2024

Clarkslegal’s London team moves to new Chancery Lane office

The London office of Clarkslegal has relocated to Chancery House, on Chancery Lane. The staff is enthusiastic about the relocation because Chancery Lane has a longstanding association with the legal profession in London.

art
  • 10 May 2024
  • Employment

New duty on employers to prevent sexual harassment – coming October 2024

The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force in October 2024.

art
  • 09 May 2024
  • Employment

Labour Party Employment Law Proposals – Promises of further consultations and a softer approach

The Prime Minister recently announced a raft of changes, to be implemented in the next parliament, aimed at reducing the number of people who are economically inactive due to illness.

art
  • 09 May 2024
  • Corporate and M&A

Navigating corporate transparency: ECCTA reforms series – part 1

The Economic Crime and Corporate Transparency Act 2023 (ECCTA) received Royal Assent in October 2023 and marked a pivotal moment in corporate governance and transparency.

art
  • 07 May 2024
  • Employment

Changes to TUPE rules from 1 July 2024

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) aim to safeguard employees’ rights on the transfer of a business or on the change of a service.