The importance of regular equality and diversity training
Equality Act 2010
S.109 Equality Act 2010 (EA) provides that anything done by an employee in the course of their employment “must be treated as also done by the employer” . This means you can be vicariously liable for the acts of your employees which constitute unlawful discrimination, harassment or victimisation. It’s irrelevant that the management team itself may have done nothing wrong or that you had no knowledge of what was going on; you can still be liable for the employee’s acts.
Pro advice. Although acts outside working hours and away from work premises will not generally give rise to vicarious liability, acts that take place at work-related social occasions are covered as those are an extension of the workplace.
However, s.109(4) EA then states that it’s a defence for you to show that you took “all reasonable steps” to prevent the employee from doing the particular act of discrimination, or from doing anything of that description. Unfortunately, having equal opportunities and dignity at work policies in place aren’t enough to jump this high hurdle. An employment tribunal will look at what steps you took to prevent the employee from committing the discriminatory act and then it will consider whether there were any further reasonable steps you could have taken. This is where equality and diversity training comes in.
Stale training
In Allay (UK) Ltd v Gehlen 2021 (see Follow up ), G complained that he had been racially harassed by a co-worker (P). An investigation established that P had made racist comments and he was ordered to undertake further equality and diversity training . G brought a harassment claim against Allay (A), and it sought to rely on the reasonable steps defence. However, the tribunal upheld G’s claim. It accepted that staff had received training but noted this was nearly two years before G started employment and was “clearly stale” , so a reasonable step would have been for A to provide refresher training. A appealed.
EAT decision
In dismissing A’s appeal, the Employment Appeal Tribunal (EAT) pointed out that the tribunal’s conclusion that the training was stale wasn’t based merely on P having made racist comments - another employee had heard P being racist and didn’t report it and two managers who had been informed about the comments didn’t take any action either. That was sufficient for the tribunal to conclude that whatever training there had been, it was no longer effective and employees had forgotten it. The EAT went on to hold that there was nothing to suggest refresher training for employees and managers wouldn’t have been effective, particularly as A had provided P with training after the event so clearly must have thought it was likely to be effective. There were further reasonable steps by way of refresher training that A should have taken.
Pro advice. Implement substantial equality and diversity training as part of your induction programme for new recruits and then carry out annual refresher training. Ask all training attendees to complete and sign a training record as evidence of their attendance (see Follow up ).
Pro advice. Give additional training to managers so that they understand how to effectively manage equality and diversity issues in the workplace.
Allay (UK) Ltd v Gehlen
Equal opportunities training record
Create your profile to unlock this advice and many more.