Firm’s equality and diversity training was stale and ineffective

A firm’s equality and diversity training has been dismissed by the Employment Appeal Tribunal as stale and ineffective against preventing harassment.

The case involved Allay (UK) Ltd and Mr S Gehlen, who was of Indian origin.

Mr Gehlen had been dismissed due to his performance. Following his dismissal, he complained that a work colleague had subjected him to racial harassment throughout his employment.

The Employment Tribunal found in his favour and accepted that the colleague had subjected him to racist comments on a regular basis, and that two managers and another employee who had been aware of the comments had failed to report them to HR.

It accepted that the employer had an equal opportunity policy and an anti-bullying and harassment procedure, and that the employees had undergone equality and diversity and bullying and harassment training.

However, it concluded that the way in which the three employees had reacted to the harassment showed that the training had become stale and needed to be refreshed. The employer had therefore not taken all reasonable steps to avoid discrimination in the workplace. 

The Employment Appeal Tribunal has upheld that decision.

It held that in determining the case it was necessary to consider whether the employer took any steps to prevent harassment.

It was not sufficient merely to ask whether there had been training, but the nature of the training and the extent to which it was likely to be effective.

The fact that employees had attended anti-harassment training but had not understood it, or had chosen to ignore it, might be relevant in determining whether all reasonable steps had been taken to prevent harassment.

The employer had to establish that it had taken all reasonable steps, which was a high threshold. In this case, the tribunal had not erred in its approach to the law or reached a determination that was perverse.

It had been entitled to conclude that the training had become stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the employer should have taken.

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Firm’s equality and diversity training was stale and ineffective
ALLAY (UK) LTD v S GEHLEN (2021)
EAT (Judge James Tayler, M Clancy, MV McArthur) 04/02/2021