Freshen-up your equality and diversity training.

Equality and diversity training is a common element of most modern offices. Most employers have equal opportunity policies, and implement some kind of diversity training for their staff.

The benefits of this training for employers are that it offers protection for employees from potential discrimination and harassment, and it encourages a diverse and welcoming workplace environment. It may also offer employers a defence against potential discrimination claims.

Under the Equality Act, an employer is vicariously liable for the acts of their employees in the course of their employment. An employer can defend this if they can show that they took all reasonable steps to prevent the employee from doing the discriminatory act.

An employer might think that having an equal opportunity policy and diversity training is enough to demonstrate reasonable steps. Certainly this was the defence raised by the employer Allay in the recent Employment Appeal Tribunal case earlier this month (Allay (UK) v Gehlen). However, the EAT decided that this training may not be enough, especially if the training has gone ‘stale’. 

So what are reasonable steps?

The EAT emphasised that it is not enough to have the policies in place, nor to offer superficial training on them. In Mr Gehlen’s case, even after the training the employee still made harassing comments, and a colleague and two managers failed to react properly. The training was over two years old, and if it had ever been effective, it was forgotten when the moment counted. 

Instead, the employers are encouraged to take measures to avoid training becoming ‘stale’.

Training should be:

  • Substantial in nature
  • Conducted regularly, perhaps even annually

Employers should also be aware of potential risks and be proactive in offering refresher courses if they think them needed.

When considering what is reasonable, tribunals will now be encouraged to consider first, what reasonable steps have been taken, and second what further steps reasonably should have been taken.

It is therefore advised that to protect their employees, and to ensure that they have a defence if they need one, employers should revisit their equality and diversity training, and consider what further steps they could, and should, be taking.

For advice on issues surrounding discrimination in the workplace for employers and employees, our employment team are happy to help.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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