Many employers will not have prioritised training over the last few months, but a decision from the Employment Appeal Tribunal highlights the risks of falling behind.
When defending a discrimination claim arising out of the actions of an employee, employers often rely on a statutory defence that they should not be liable as they had taken 'all reasonable steps' to avoid the discrimination occurring. However a recent Employment Appeal Tribunal case alerts employers to their obligations with respect to tackling bullying, discrimination, and harassment in the workplace, and in particular, focuses on the need to review and refresh relevant training and policies frequently.
In the case of Allay (UK) Ltd v Gehlen, the Employment Appeal Tribunal upheld a decision of the employment tribunal that the employer could not rely on the statutory defence relating to the discriminatory actions of its employees, as the equality and diversity training delivered to employees 20 months prior to the harassment was "stale" and ineffective, and there was evidence that the training was insubstantial and that employees had forgotten it.
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In the event that an employer seeks to rely on the 'all reasonable steps' defence the proof lies with the employer to show that it took all reasonable steps to prevent the relevant employee(s) from committing the acts in question.
For an employer to show that it merely has relevant policies in place and provides equality and diversity training to its employees is not enough. Employers must be able to demonstrate that they provided employees with effective materials to prevent discrimination, bullying, and harassment in the workplace, and subsequently took any necessary steps to make sure that the training was impactful.
To ensure employers are taking 'all reasonable steps' they should consider the quantity and quality of the training they provide to their employees. With further reasonable steps including offering refresher training and update stale policies.
As compensation for discrimination claims can be costly, now might be the time to review how up-to-date your employees’ equality and diversity training is.
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