How effective is the equality training in your educational establishment?
The recent EAT decision in Allay (UK) Limited v Gehlen gives schools and colleges useful and important guidance on the use of the “reasonable steps” defence in discrimination claims, specifically in the context of equality and diversity training. Such training needs to be effective and up to date if educational establishments wish to be able to rely on it to defend claims.
The Claimant was dismissed for performance-related reasons but complained that he had been subjected to racial harassment. An investigation found that a colleague had made racist comments against him and that two managers were aware of the racist comments but took no action other than issuing a minor reprimand. The perpetrator was ordered to undertake further equality and diversity training.
Under the Equality Act 2010, schools and colleges as employers can be held responsible for harassment committed by their employees regardless of whether the organisation approved of or even was aware of that behaviour. However, the Equality Act also provides a statutory defence which provides that educational establishments can avoid liability for the discriminatory action of its employees where it can establish that it took all reasonable steps to prevent the employee from doing the act(s) in question. This is known as the “reasonable steps” defence.
The employer sought to rely on the “reasonable steps” defence under s.109(4) of the Equality Act 2010. The Employment Tribunal rejected this defence finding that, whilst employees had received training that covered racial harassment, this training was “clearly stale” as it had been delivered in the two years prior to the incidents. The training was therefore ineffective. A reasonable step would have been to provide refresher training.
The EAT agreed, saying, “It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective.”
The EAT also made it clear than a school and college must show that it provided its employees with effective materials to prevent discrimination, bullying and harassment in the workplace and that it subsequently took any necessary steps to make sure that the training continued to have an impact on employees.
Schools and colleges will not be able to rely on the reasonable steps defence where their equality and diversity training is generic, unsuitable or out of date. Careful thought should be given to the effectiveness of such training – including not only consideration of its regularity and scope but also ensuring that it is tailored to different levels within the organisation and that it deals thoroughly with tricky and often complex areas, for example, effective investigations into discriminatory acts.
Educational establishments need to go further than just providing effective training and will need to ensure that their equality policies and procedures are clearly drafted and are carefully implemented. The EAT noted in this case that the equal opportunities policy did not make any reference to harassment and the anti-bullying and harassment procedure only referred to harassment in the title and made no mention of race.
In addition to providing effective materials to prevent discrimination, bullying and harassment in the workplace, schools and colleges will need to keep their policies and training materials under regular review and provide regular training on equality and diversity.
Do get in touch if we can assist your organisation with updating your policies and procedures or with any training.
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