Most employers will have equality policies in place and provide equal opportunities training to their employees in some way. While some may see this as a “tick-box” exercise, Emma O’Connor Head of Training and Catrina Flanagan Solicitor take a look at the recent case of Allay (UK) Limited v Gehlen which shows the importance of training, the implications of not keeping this regularly updated and a call to action for HR.
Co-authored by Catrina Flanagan and Emma O'Connor
“Employers should think about equality and diversity not in isolation but together as a cohesive message where policies, training and awareness all complement one another as part of a wider message and purpose.”
Employees are protected from experiencing harassment in the workplace by the Equality Act 2010, where such harassment is on grounds of a protected characteristic. This protection has been in place for many years and most employers will be aware of what harassment is and the fact that employees have a right of action against the organisation, if they do experience harassment at work, for example by a colleague or manager. While the harassed person can also bring a claim against the individual harasser, employees will usually bring a claim against the employer either instead of or in addition to the harasser.
What is harassment?
To take it back to basics, harassment is defined in s.26 of the Equality Act as being when one person engages in “unwanted conduct which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile degrading, humiliating or offensive environment”. The conduct has to relate to one of the protected characteristics covered by the Equality Act, such as age, sex, race disability or religion.
Examples of harassment include making jokes relating to someone’s race, isolating someone because of their religion or generally making unwanted comments relating to someone’s sex. In the case of Allay (UK) Limited –v- Gehlen, allegations related to racist comments made by Mr Gehlen’s colleague.
Importantly, in order for an employee to show that they have been harassed, they do not need to show that the perpetrator intended for their actions to have such an effect, just that a reasonable person would have felt that it was harassment.
Defence to harassment claims
There is always a risk that despite the employer’s best efforts to avoid harassment in the workplace, harassment can still be alleged. Those who have faced claims of discrimination and harassment, may have heard reference to the “statutory defence”, under s.109(4) of the Equality Act. This section confirms that where the employer has done all that can reasonably be expected of them and the harasser really should have been aware that what they were doing was wrong, that the employer will have a defence against any liability. A very important defence for employers and one which can place 100% liability on the alleged wrong-doer. What is it and how can employers use this defence effectively?
Allay –v- Gehlen : is equality training enough?
Why this case is important is that when Allay (UK) sought to rely on its equality training as a defence to Mr Gehlen’s allegations of harassment, it was found lacking. Allay (UK) stated that the alleged wrong-doer had undertaken equality training 1 year prior to the date of the allegations and further, that when it heard of the allegations it ordered the colleague undertake further equal opportunities training to avoid this happening again. Was this response enough to satisfy the statutory defence?
No. This was because the earlier training was “clearly stale”, according to the EAT. At the time of the harassment, it had been over a year since the harasser had undertaken any training and there was no refresher training planned. Also, the EAT noted that colleagues of Mr Gehlen who were aware of the offensive comments made chose to do nothing but give the alleged harasser a “mild rebuke”. This called into question both the effectiveness of the training itself and also whether there was any monitoring of its effectiveness. Although refresher training was ordered by the employer this was only after the harassment had occurred and so this was a case of too little, too late.
Question: Could your organisation effectively run a statutory defence to a discrimination or harassment allegation?
Yes, your business may have policies and processes in place to set out the behavioural expectations at work. However, do your policies include discrimination, harassment and bullying? Do your policies refer to all protected characteristics and give examples of unwanted behaviours? (Unfortunately, Allay (UK) did not). Are your policies regularly reviewed, sent round to employees or seen a living and breathing cultural documents? Do your policies join together with others so there is cross referencing to equality and diversity so there is a joined up message?
Clearly, this case calls into question not just employers' approaches to policies and procedures but also training both in terms of its regularity but also its effectiveness. There is little point running E D sessions if there is not follow-up, no refresher or assessment of has it worked? Do managers know the expectations and is this information being cascaded down to their teams? Do they not only ”walk the walk” but “talk the talk”? Managers should lead by example and demonstrate the behaviour expected of their team.
Training and equality awareness should be more than a “tick-box” exercise. Training must be engaging, relevant and interesting to ensure that employees take on board the points and understand the purpose of the session and why it is important to them AND the business. Employees may think they know all there is to know about equal opportunities, including ways in which they may exhibit unconscious bias, but Allay (UK) Limited v Gehlen has reminded us that we cannot simply have a single training session to provide unlimited protection.
Call to action
When was the last time your organisation provided any equal opportunities training? Do you refresh this regularly? If you were to face allegations of harassment, could your organisation say that you have taken all reasonable steps to avoid discrimination and harassment happening in the workplace? When were your policies last reviewed? Discrimination and harassment cases cost time, money, and reputation, not to mention the impact it can have on the victim.
As part of the HR Training Academy, we regularly run E D training for Boards, HR, managers and employee populations. Online, virtual sessions or pre-recorded awareness modules to suit time and budget. Emma O’Connor, Head of Training, says “Employers must think about equality and diversity not in isolation but together as a cohesive message where policies, training and awareness all complement one another as part of a wider message and purpose.”
Want to hear more about training and E D messaging or how we can help review your policies – speak to Emma O'Connor
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.