Harassment training must be thorough and regular

In a recent appeal case of Allay v Gehlen, the Employment Appeal Tribunal (EAT) ruled that an employer cannot rely on the “statutory defence” to harassment where workplace harassment training is “stale” and ineffective.

Under the Equality Act 2010, employers can be held responsible for harassment committed by their employees regardless of whether the employer approved of or was even aware of that behaviour. However, where the employer can demonstrate that it took all reasonable steps to avoid the action (such as robust policy and effective training) the employer can claim what is known as “statutory defence”.

The Claimant in this case was subjected to racist comments on a regular basis by a colleague in the workplace. Two managers were aware of the racist comments but took no action other than issuing a very minor reprimand and they did not report the incidents. The perpetrator and the managers had all received anti-harassment training by the employer in the two years prior to the incidents.

The Claimant brought a claim for harassment on the grounds of race but the employer tried to rely on the statutory defence; stating it had taken “all reasonable steps” to prevent the harassment. The EAT upheld the Employment Tribunal’s decision that the employer could not defend the claim because it had failed to prevent its training from becoming “stale” and ineffective.

The EAT highlighted the importance of the word “all” in its judgment and suggested that employers will face a high threshold in order to successfully provide that all reasonable steps were taken. The EAT found that it is not sufficient for an employer to simply show that it has relevant policies in place, nor that it provides equality and diversity training to its employees. It has been made clear that an employer must show that it provided its employees with effective materials to prevent discrimination, bullying, and harassment in the workplace and that it subsequently took any necessary steps to make sure that the training continued to have an impact on employees.

In this case the EAT found that the training had become “stale” and needed refreshing.

Employers need to consider the frequency and the quality of the training they provide to their employees to ensure that they are seen to be taking “all reasonable steps” subsequently increasing the likelihood of being able to rely on the statutory defence.