As we strive to develop more effective, well-rounded workforces, the importance of training cannot be understated. Investment in talent helps to increase employee engagement, boost performance, and improve employee retention – all benefits which are vital to delivering sustainable business growth.
Training is also key in the promotion of suitable workplace behaviour. For employers looking to build an inclusive culture, it can be an effective tool in educating employees on what diversity means in their day-to-day interactions with colleagues.
However, following a recent Employee Appeal Tribunal (EAT) case there is now legal precedent that up-to-date and meaningful training is not just important, but a necessity – acting as a wakeup call for those who are lagging behind on workplace training.
‘Stale’ training and ‘all reasonable steps’
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Under the Equality Act 2010, employers can be held responsible for harassment committed by their employees, even if the employer is not aware of the behaviour. However, under the Act, it is possible for an employer to avoid liability if it can establish that it took ‘all reasonable steps’ in preventing the offending employee from doing the acts in question “or from doing anything of that description”. This is known as the “all reasonable steps” defence.
In the case of Allay (UK) Ltd v Gehlen, the employer claimed that it had taken all reasonable steps to prevent workplace harassment, as it had provided employees with diversity training. The Employment Tribunal, however, found that the training, which had been provided less than two years before, had become ‘stale’ and outdated. As a result, the Tribunal did “not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training”. This ultimately meant that the employer was liable.
On appeal, the EAT held that the Employment Tribunal ‘were entitled to conclude the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken’.
In light of the above considerations, it would be prudent for employers to take some time to review their current policies in relation to the provision of workplace training, equal opportunities, and anti-bullying and harassment to ensure that employees are fully aware of the consequences of inappropriate workplace behaviour.
What employers should do
This decision has emphasised the importance of employers providing up to date and meaningful training regarding appropriate workplace behaviour. A key observation made by the EAT was that “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 observed that, “Thorough and forcefully presented training is more likely to be effective, and to last longer.”
The decision also reinforces the need for employers to provide training frequently, and for that training to be robust. The EAT observed that “Brief and superficial training is unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences.”
In this case, the training that was deemed ‘stale’ was less than two years old, demonstrating the speed at which standards are evolving. Through the provision of good quality, thorough and up to date training throughout an employee’s career, and by engaging with employees to gauge their understanding from the training, employers can ensure that they are compliant with the latest standards. This will help them stand a better chance of defending claims and, most importantly, foster a more inclusive environment, which will in turn give them the best possible chance of achieving growth.
Although the efforts of many organisations are focused solely on navigating their way through the uncertainty of the pandemic, employers would be wise to review their current training offering (particularly around equality and diversity) and consider whether or not it is fit for purpose.
It is worth noting that a furloughed employee is still eligible to complete training without bringing their leave to an end. This could present the opportunity for employers to get ahead of the curve, by updating their training before we exit lockdown and enter what is looking by all accounts to be an extremely busy period for many employers.
Nick Campbell is Partner and Head of Employment at leading independent law firm Brabners. With over 28 years of experience in practice, he acts for a range of UK, European and US employers including a number of FTSE 250 clients and household brands.
- Nick Campbell
