Can provision of equality and diversity training be a successful defence against discrimination?

Is the provision of equality and diversity training enough for an employer to successfully defend a claim for discrimination?

No, not always.

Employers may not be able to rely on the ‘reasonable steps’ defence against a claim of discrimination if they seek to rely on equality and diversity training that is ‘stale’.

Employer’s liability

Employers have a duty to protect their employees from discrimination in the work place. One way employers seek to do this is by providing equality and diversity training. A recent Employment Appeal Tribunal (EAT) hearing has ruled that the effectiveness of equality and diversity training is different to whether the training is reasonable to show that an employer has taken steps to avoid discrimination occurring.

Recent case law

In Allay (UK) Ltd v Gehlen, Mr Gehlen was dismissed for performance related reasons in September 2017 and he then complained that he had been subjected to racial harassment by a fellow employee. The employer investigated and established that racist comments had been made and the employee responsible was required to complete further equality and diversity training. In defending the claim the employer sought to rely on the ‘reasonable steps’ defence. This provides that it is a defence if the employer can show that they took all reasonable steps to prevent employees from committing discriminatory acts. The Employer argued that they had provided equality and diversity training in 2015 and this was reasonable to attempt to prevent the discrimination taking place.

The EAT held that the equality training which had been provided before Mr Gehlen had started employment and approximately 18 months before the alleged discrimination took place was ‘clearly stale’. The EAT rejected the defence that the training provided was sufficient to argue that the employer had taken reasonable steps to avoid employees committing discriminatory acts. It was held that a reasonable step would have been to provide refresher training. 

This decision makes it clear to employers that they cannot provide one off training and seek to rely on this as a reasonable step in defending a subsequent discrimination claim. Training should be consistently monitored and regularly refreshed in order to update employees’ knowledge and awareness.

What are reasonable steps?

When considering a discrimination claim a Tribunals will take a two-stage approach, looking first at what steps the employer took and then considering whether there were other reasonable steps that it could have taken to prevent the discriminatory act taking place. Reasonable steps will usually include:

• having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate;
• making all employees aware of the policies and their implications;
• training managers and supervisors in equal opportunities and harassment issues (and providing refresher training); and
• taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

Case study

An employer provides training to all employees regarding their policy on harassment, and is clear that that harassment of employees related to any of the protected characteristics will lead to disciplinary action. They also ensure that managers are trained in applying this policy.

After the policy has been implemented an employee makes a homophobic comment towards another employee who identifies as LGBT, who is offended by the comments. The employer then takes disciplinary action against the employee.

In these circumstances the employer may avoid liability because their actions are likely to show that they took all reasonable steps to prevent the unlawful act.

If you would like advice on issues of discrimination, equality training or taking reasonable steps to avoid liability for claims of discriminatory acts please contact either Nick Smith or Laura Tennet of the Mincoffs’ Employment Team.