Out of date diversity training could give rise to employment claims

An employer’s ‘reasonable steps’ defence to a claim of racial harassment was dismissed by the Employment Appeal Tribunal. In spite of the fact that the culpable employee and three other employees who were aware of the harassment, which included two managers who failed to report the incidents to HR, had received equality and diversity training some two years previously, it was held that the training had grown stale and required revisiting.

The Equality Act 2010 states that anything done by a person in the course of their employment is also treated as though it were done by their employer: this is known as vicarious liability. Vicarious liability for acts or omissions done by employees can be displaced where the employer can show that they have taken all reasonable steps to prevent their employees from doing that thing or doing anything of that description.  

In this particular matter, the Employment Appeal Tribunal concluded that refresher training was a clear requirement for a multitude of reasons. One explanation given was that the blameworthy employee saw the racist remarks as no more than harmless ‘banter’. These inappropriate comments had been witnessed by 3 other employees, including 2 managers, none of which reported the comments to HR. The lack of any positive action being taken by any of the witness employees, and more importantly those at the management level, further reinforced the importance of updated training to ensure an appropriate response to this kind of behaviour. It was also noted that the employer had required the employee to undergo further training once the investigation had determined that he was accountable for the said harassment. Despite the employer asserting that they had taken all reasonable steps to avoid situations like this arising, it was evident that the value of any training that had been received had worn off over time otherwise additional training would not be necessary.

The judgment places onus on employers to keep under regular review any steps that they take to prevent their employees committing any discriminatory acts or omissions. Employers should consider not only that the reasonable step has been taken, but also to consider the effectiveness of such a step in practice. This case demonstrates the importance of ensuring that any training or policies put in place have the desired effect that is intended as part of the policy or training and it is not just a box ticking exercise for employers to absolve any responsibility for their workforce’s wrongdoing.

If you have any questions about updating your training, or any other employment law matters, get in touch with our expert team of employment lawyers on 01582 514000.