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In the recent case of Allay (UK) Ltd v Gehlen, an Employment Appeal Tribunal held that diversity training was stale and ineffective, and therefore the employer, Allay, was unable to rely on the statutory defence that it had taken all reasonable steps to prevent discrimination.
Mr Gehlen, who described himself as being of Indian origin, was employed by Allay as a senior data analyst from October 2016 until his dismissal in September 2017 for poor performance.
Following his dismissal, Mr Gehlen complained that he had been subject to racial harassment by a colleague during his employment. A subsequent investigation found that a colleague and two managers had been aware of the harassment but had failed to do anything about it. Mr Gehlen subsequently brought proceedings for direct race discrimination and harassment related to race.
The Employment Appeal Tribunal held that Allay, who had an equal opportunity policy, an anti-bullying and harassment procedure and had provided equality training in 2015, had not taken all reasonable steps to prevent the harassment of Mr Gehlen, who had been regularly subject to racial comments. The Employment Appeal Tribunal held that all reasonable steps to prevent discrimination and harassment would have included refresher training.
This case provides a clear reminder that what may, by some, be perceived as banter can amount to unlawful harassment and discrimination in the workplace. The implications for employers are not only the cost and inconvenience of claims to the Employment Tribunal but also the effect on employee relations, reputation and, in some cases, the ability to tender for commercial contracts.
Employers who are serious about managing the risks and, if necessary, relying on the statutory defence cannot approach equality issues and equality training as a tick box exercise. This recent case is a reminder that training must be effective and regularly refreshed to ensure that new starters understand the standards required of them and that other employees do not forget over time.
Employers may wish to consider mandatory informative videos, policy updates and frequent training events recognising that harassment is just as likely to occur in a remote working environment as in the workplace. Employers should ensure that employees understand and comply with preventative measures.
If you would like further information and assistance with policies, procedures and bespoke training, our Employment Solicitors would be happy to help. You can contact us on 0161 941 4000 or email The Employment Team for more information.