A recent case reminds employers that it is not enough to simply put an equality policy in place if you wish to try and defend a claim based on the unlawful actions of an employee.
Under the Equality Act 2010 it is possible for employers to defend a claim resulting from the unlawful discriminatory actions of an employee if it can show that it took all reasonable steps to prevent those actions. Such steps might typically include maintaining a comprehensive Equality Policy and providing training on that policy to management and staff.
In the recent case of Allay (UK) Limited v Gehlen heard earlier this month, the Employment Appeal Tribunal held that in determining whether the employer has established that defence, it is legitimate to consider how effective the steps taken by the employer were likely to be when they were taken and, in appropriate circumstances, how effective they have proved to be in practice.
What this means in practice is that it is not enough that there has been some form of training provided by the employer but that it is also necessary to consider the nature of the training and the extent to which it was likely to be effective. If only brief and superficial, this is unlikely to help the employer meet the fairly high threshold provided by the defence in the legislation. Furthermore, it is important that those who have attended the training have understood it and subsequently chosen to follow it in practice.
A tribunal is also entitled to conclude that any training provided was now stale and no longer effective, and that the employer should have provided refresher training in order to be able to make out the defence.
This case reminds employers of the value of providing equality training on a regular basis and ensuring that the training given is comprehensive and covers all relevant issues. It is also advisable to maintain a clear record of those who have attended the training each time and a copy of all training materials too.
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