EAT upholds finding that staff training on harassment was stale and needed refreshing

Allegations of harassment occur across all types of organisations and sectors. Due to the coronavirus pandemic, many employers are now managing staff working remotely but it is important to remember that an employer’s obligation to manage harassment in the workplace does not stop simply because large numbers of staff are now working from home.

Lockdown has had other implications. A women’s charity, Rights of Women, carried out a survey between 23 November and 15 December 2020 and this showed that women were experiencing increasing levels of sexual harassment at work since the lockdown in March 2020 and much of this was online. Worryingly, the survey found that victims have felt less able to report harassment to their employers while working remotely. For women who did raise concerns, 29% felt that their employer’s response had been negatively impacted by the COVID-19 pandemic, with some seeing investigations delayed because of lockdown restrictions.

Equality Act 2010

The Equality Act 2010 (the Act) prohibits three types of harassment:

• Harassment related to a protected characteristic.
• Sexual harassment.
• Less favourable treatment of a worker because they submit to, or reject sexual harassment or harassment related to sex or gender reassignment.

“Harassment” is defined in the Act as unwanted conduct related to a protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual.

The issue in Allay was racial harassment and this includes any unwanted conduct having the purpose or effect set out above, which is related to colour, nationality, and ethnic or national origins and this can cover racist jokes or derogatory or stereotypical remarks about a particular ethnic group.

Under section 109 of the Act, employers can be vicariously liable for the acts of their employees carried out during the course of employment (and this can include conduct at work social events or conduct online) whether or not the actions were carried out with the employer’s approval or knowledge.

Section 109(4) however, provides a “statutory defence” for employers. Accordingly, employers can defend a claim for harassment for example, if they have taken all reasonable steps to prevent the harassment occurring.

Employment Tribunal proceedings

The Employment Tribunal concluded that Mr Pearson had made the comments regularly throughout Mr Gehlen’s employment and they had been made at least once a month. It was satisfied that two of the colleagues had heard Mr Pearson’s remarks.

Allay tried to rely on the statutory defence provided for by section 109(4) of the Act but the Employment Tribunal rejected this. It noted that Mr Pearson and the two colleagues had received training about how race discrimination in the workplace should be avoided. It found that the training was “clearly stale“. It did not accept that Allay had taken all reasonable steps to avoid discrimination in the workplace and a reasonable step would have been to refresh that training. The fact that it needed to be refreshed was amply demonstrated by the remarks made by Mr Pearson and the way in which the colleagues and the Customer Service Manager failed to properly react to the allegations of harassment. The training had made it plain to the employees what they should do if they heard unacceptable remarks and they all failed to follow that guidance.

Employment Appeal Tribunal

Allay’s appeal was dismissed.

The EAT said that the starting point is to consider whether the employer took any step, or steps, to prevent harassment.

• In considering the reasonableness of steps that have been taken the analysis will include consideration of the extent to which the step, or steps, were likely to prevent harassment. Brief and superficial training is unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective, and to last longer.
• 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. If training involved no more than gathering employees together and saying “here is your harassment training, don’t harass people, now everyone back to work”, it is unlikely to be effective, or to last.
• It is relevant to consider what has happened in practice. The fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant in determining whether all reasonable steps have been taken to prevent harassment. Firstly, if management become aware that despite such training employees are continuing to engage in harassment, or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as a notification to the employer that they need to renew or refresh the training. The fact that harassment takes place after such training, even if unknown by the management at the time, may provide some evidence that demonstrates the poor quality of the training that was provided, particularly if it is not only the alleged harasser who did not understand the training, or act on it, but that was also the case with other employees.

The purpose of the statutory defence provision is to encourage employers to take significant and effective action to combat discrimination. The defence is available, but as the EAT stated, the employer has to establish that “they have taken all reasonable steps, which clearly is a high threshold.”

Significantly, the Employment Tribunal had not concluded that the training was stale merely from the fact that Mr Pearson had made racist comments (and he thought it was no more than banter). Two colleagues had heard the racist comments but did not report them to HR or to management. Further, the Customer Services Manager, on being told about the remarks simply told Mr Gehlen to report the matter to HR, but did not take any further action himself.

Comment

Interestingly, in Allay, the training had been provided relatively recently but even so, the Employment Tribunal found that it had become stale and ineffective. Employers should therefore identify when training was last provided and how comprehensive it was. They should also look at the format of the training. Was it a PowerPoint presentation to a large group or an interactive session to small groups? Who provided the training, was it someone with specialist knowledge? Was there specific training for those who have responsibility for investigating allegations?

As can be seen from the decision in Allay, providing training on harassment was not enough to establish the statutory defence. Employers should therefore try and assess the effectiveness of any training they have provided to establish whether refresher training might be needed.

The Equality and Human Rights Commission published Technical Guidance on sexual harassment and harassment at work in January 2020. It includes comprehensive guidance about how to prevent and respond to harassment and for more details see our earlier article on how employers should manage harassment in the workplace.

How Blake Morgan can help

Finally, our Employment Team is able to offer your organisation bespoke Equality, Diversity and Inclusion Training as part of ensuring all your staff are fully trained, not only in behaving appropriately with colleagues, but in taking action early on where they see harassment or discrimination occurring. This will help employers demonstrate that they took “all reasonable steps” to prevent harassment or discrimination in a situation like this. Details of the training programme available will be publicised shortly.