The Employment Appeal Tribunal has recently prescribed annual booster / refresher training for employers on Equality and Diversity in order to ensure that it is effective in eliminating harassment in the workplace.
The EAT drew an analogy with the Covid-19 vaccination programme – ‘we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last’.
It is a well-known point of law that an employer can be vicariously liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment. There is a statutory defence available to employers, under s.109(4) Equality Act 2010, where an employer can show that it took all reasonable steps to prevent the employee from carrying out the act of discrimination. The EAT considered this recently in Allay (UK) Ltd v Gehlen  UKEAT 0031_20_0402.
The EAT upheld the harassment complaint because the training staff received in 2015, two years earlier to the racial harassment involved in the case, had become ‘clearly stale’. A reasonable step would have been to provide refresher training. The failure of colleagues to react properly to the harassment clearly demonstrated this. In determining the reasonableness of a step taken, the EAT stated that it is insufficient to merely ask if there had been training given. The Tribunal’s examination must be deeper and examine the nature of the training and the likelihood that it would be effective in preventing discrimination, harassment, and victimisation.
The decision effectively means that it is not enough for an employer to run training solely when an employee starts or at a fixed point in time. The training must be kept up to date and refreshed. Furthermore, if there is any indication that the training has ‘gone stale’ and incidents of discrimination, harassment and victimisation are brought to the employer’s attention then the training will be deemed as no longer effective. The best way to go about this would be to refresh training annually and ensure accurate records are kept of who undertook the training and when.
Put simply, the protection of the training will only inoculate the employer for so long against a harassment claim. The training needs to be given an annual booster to ensure effectiveness.