The Employment Appeal Tribunal in Allay (UK) Ltd v Gehlen has highlighted the need for employers to provide substantial training on discrimination issues both at regular intervals and on an ad hoc basis if it becomes apparent that prior training was ineffective or has been forgotten. Employers face a high threshold in terms of quality and regularity of training if they are to establish that they have taken all reasonable steps to prevent discrimination as a defence to a claim.

The nature of the training given and the extent to which it was likely to be effective will be relevant, as will what happened in practice after the training.  In this case, the tribunal was entitled to conclude that staff training given around two years before the harassment was no longer effective, as evidenced by the facts that one of the attendees still appeared to believe that his racist remarks were just ‘banter’, while one of the victim’s colleagues and two managers were aware of the racist comments but took no action (other than a very mild rebuke).  Given that managers were aware that harassment was taking place, it would have been a reasonable step to provide refresher training, as there was nothing to suggest that further training of a good standard would have been ineffective.

Substantial training should therefore be conducted regularly and, if an employer has cause to believe that employees have forgotten the training, it should be refreshed (even if refresher training would not usually have been provided so soon).  It may also be sensible for employers to put in place a process for assessing how effective the training was and how long that lasts, perhaps by testing attendees on their response to case studies after the training and again at regular intervals.

The EAT also criticised the employer’s policies in this case, as the equal opportunity policy did not expressly refer to harassment and the anti-bullying and harassment procedure did not mention race.  Employers may wish to review their policies and procedures to ensure they are up to date and expressly and effectively cover all relevant issues.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819