What is the recommended period for training on equality and diversity matters?Posted in : Seamus Says - Employment Law Discussion on 5 March 2021
What is the recommended period for training on equality and diversity matters?
Seamus: Yeah. Well, this is an interesting case. This was an Employment Appeal Tribunal case, so it has some weight in it that it's not the decision of first instance. But the basics of the case were around race discrimination, and the case itself brought in the question whether an employer could rely on the defence that all reasonable steps had been taken where training had been provided to an employee who discriminated against another member of staff. The tribunal at first instance had held that the employer was vicariously liable for racist comments that were made by one employee against another, the employee, the claimant who brought the claim. And the defence of the employer was, you know, what more could we do? We took all reasonable steps here. We provided training to the employees in relation to the diversity and inclusion. And it was a matter that the EAT then made some interesting comments on what the employer had said. That the perpetrator of the offensive comments had previously undergone equality and diversity training along with all other employees.
But interestingly, some of those employees had been managers who were aware the racist comments, and I think there might have been an issue that the managers, although they had also been trained, didn't take the appropriate steps to deal with the racist comments. But the Employment Appeal Tribunal essentially upheld the original tribunal's decision that the employer was vicariously liable for the actions of its employees. And what they said was that that was, even though there had been training that had been delivered, but they said the training had been delivered over a year prior to the harassment and had therefore gone stale. And they said that reasonable steps that was judged would have been to refresh the training. Now, I think, look, there's a number of factors involved in this. I think it depends on your organisation. It depends on the size of your organisation. It depends on how your organisation is made up or what structure is in place. But the key aspect here is that you must have completed some form of D&I training within the organisation.
As regards a specific timeframe, it's not set out within the judgment and there isn't any guidance to say that it has to be every year or it has to be every two years. I think it's important in any organisation that policies and procedures are reviewed and that they're reviewed in a timely fashion, and that there's training provided. In my office, for instance, there's certain matters that we provide annual training on because we deem it that they are sufficiently serious and that our staff need to be made aware and kept up to date in relation to specific matters.
But interestingly, what the tribunal went on to say, they said that it wasn't only just about the training. They say that a business needed to demonstrate that they created a non-discriminative organisational culture, which is lived and breathed by anybody. So it's just not good enough to tick a box and to say here's the policy and procedure, and here's a bit of training that we provided. Really, if you're taken to task by an employee and you end up in an industrial tribunal, I think the tribunal will be looking to see that there's more than just training or a policy and procedure in place. They'll want to see how that is actually brought about, how it's actually lived through the organisation, and what the organisation have done to live out essentially the policies and procedures that are in place.
So, look, is an important decision, and I think, specifically as well, I was reading some other commentary and the commentary was talking about the effects of COVID, and the figures had shown, for example, that women would maybe have been disproportionally affected owing to childcare and home-schooling responsibilities while schools remain closed over lockdown and the impact that that would have on equality for women specifically within the workplace. So it goes beyond best cases in the workplace. But certainly, look, I think that it's a very important aspect of this training given, and I'm thinking back to the poll there, Scott, that there was a third that said that there hadn't been training provided. Was it within the year?
Scott: Within the last two years, Seamus.
Seamus: Within the last two years.
Scott: I think for two years that hadn't done any, so I think they're struggling.
Seamus: I don't know whether or not there never has been training provided or whether it is that they just haven't refreshed the training. But certainly, on the basis of the judgment, I would have thought that you wouldn't want to wait any longer than the two-year period.
Scott: Okay. Thank you very much, Seamus. I suppose, somebody asked what the case was. It's Allay against Gehlen: Allay (UK) Ltd v Gehlen 
One of the factors there, Seamus was that the managers hadn't taken action and the court, or the tribunal said, well, look, there's evidence for you that it wasn't effective. If it had been effective, the supervisors would have stopped that. They would have nipped it in the bud and stopped the harassment then and there. It cannot have been effective if the managers didn't take any action. And I think even if you were to take that case or take, you know, we'll get this transcribed, take elements of this transcription and send it around, that's part of your keeping it live, if you like. Reminding managers, you know, you've got to do these things. You've got to take action. Or, indeed, as we mentioned earlier, putting people through courses like our eLearning thing, which is easy to do.
I mean, the thing about eLearning, I suppose, not to plug ourselves too much, is that you can record. So you mentioned about the requirement to record that training had taken place. eLearning does that automatically. It records who's done it. It records their score. It can record any trends if there's any issues that people miss. So that type of thing is very useful if the employer were to go back and say like not only did we do the training, but we've got all the records that they did the training, and they did it on this date, and since then, we've also followed it up by, you know, having an open forum on equality issues. Or you might look for more. It might not just be training. There may be issues like you set up a D&I network, or whatever it happens to be, to show that you're taking it seriously. I think one of the issues for the employer here is that it was almost just a tick box exercise, really is what they're saying, and if it had been effective, it hadn't been reinforced over the period by going back to them.
Seamus: Yeah. I mean, I think it reminds me of the words "so much for your training," whenever your managers witnessed and were aware of the offensive behaviour and didn't do anything about it. I mean, I think that that would be a difficulty for any tribunal that they would find. But the other point in relation to it is like, I've had many a case where you've been a tribunal and you're defending claims, and the client's big point to you at the time is, "But we have a policy for that." And you think, "Yeah, that's great, but what have you done about the policy?" And it's really whenever the tribunals start to drill down through that or in cross-examination and councillor, or the solicitor on the other side starts to drill down in relation to yes, you have a policy, but explain to me how the policy is an involved procedure throughout your business. And so it's just simply not good enough to have a policy and say it's there. It has to be more than that.
Scott: Yeah. It's a similar principle to, I suppose the analysis that people or the courts put on an employee and employment status. They say, well, it doesn't matter that you've got a contract that says that they're self-employed, let's look at the reality. And in all those policies, yeah, you've got those things, but nobody's looked at it or talked about it or dealt with it or been trained on it for years and therefore it's fallen into disrepute. So, if you're going to have these things, you're better keeping them live, I reckon, or not have them at all.
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