The Employment Appeal Tribunal (EAT) has held in Allay (UK) Ltd v Gehlen that an employer had failed to take all reasonable steps to avoid an employee being racially harassed by another, and could not rely on "stale" equality and diversity training.
The claimant, who describes himself as being "of Indian origin" was employed by Allay (UK) Ltd from October 2016 until his dismissal on 15 September 2017. He complained, after his dismissal, that he had been subjected to racial harassment by a fellow employee, Mr Pearson, during his employment. The employer undertook an investigation which determined that Mr Pearson had made racist comments. The claimant brought proceedings in the employment tribunal for direct race discrimination and harassment related to race, and the tribunal upheld the harassment claim.
The tribunal found that one of the claimant's colleagues and two managers were aware of the racist comments but no action was taken, other than one of the managers issuing Mr Pearson with a mild rebuke. The tribunal found that the employer had an equal opportunity policy and an anti-bullying and harassment procedure, and that all the employees concerned had received equality and diversity training and bullying and harassment training at the beginning of 2015. However, it disagreed that the employer had taken all reasonable steps to prevent the harassment, holding that the training was clearly "stale" and that a reasonable step for the employer to have taken would have been to refresh the training. The need for this was clear due to the fact that, after the training, Mr Pearson had made racist comments and the claimant's colleague and two managers had failed to react properly when becoming aware of the comments.
On appeal, the EAT held that the tribunal was entitled to conclude that the training was stale and no longer effective to prevent harassment, and there were further reasonable steps that the employer should have taken, such as refreshing the training. In a topical turn the EAT observed that, "Considering this matter during the coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last". Consideration had to be given to the nature of the training and the extent to which it was likely to be effective.
The EAT observed that it was relevant to consider what happened in practice, and the fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant. If managers become aware that, despite the training, employees are continuing to engage in harassment, this may "serve as notification to the employer that they need to renew or refresh the training".
Take note: The decision in Gehlen demonstrates the importance of not only keeping policies up-to-date, but also ensuring that they are followed through in the form of comprehensive training to staff. In order to avoid such training becoming "stale" employers should make sure that it is regularly refreshed.
