Article written by Noella Gooden, Employment Solicitor (Australian Qualified).
A recent Employment Tribunal (ET) case (Sutherland v Watkins Solicitors) has again highlighted the need for employers to keep equality and diversity training under review, and updated for all staff. The point was made by the ET in the case of an Administrative Assistant who took action after a colleague denigrated her Chinese heritage.
After she mentioned her grandmother’s Chinese descent in the office, her colleague responded with the words: ‘Does she own a chip shop? All Chinese own chip shops’. She was embarrassed, upset and offended by the remark. She resigned some months later and launched ET proceedings.
Her employer at the time accepted that the colleague’s derogatory comment was an act of harassment that was related to race. They argued, however, that all reasonable steps had been taken to prevent him from making such remarks. The employer asserted that all its staff were required to undergo equality and diversity training, together with refresher courses.
Ruling on the matter, the ET noted that there was no evidence that the colleague in fact underwent such training. His tendency to make inappropriate comments was known to his line manager. Although she would intervene if she thought he was about to say something offensive, it should have been apparent to her that he had not taken on board any equality and diversity training he had received and did not appreciate the effect of his remarks on others.
The ET was satisfied that the employer’s equality and diversity policies had not been enforced robustly in relation to the colleague. It would have been reasonably practicable for the employer to ask him to do the training, or to do it again, and to have told him in terms to stop making inappropriate comments.
The woman’s claims of constructive unfair dismissal, direct discrimination, victimisation, and further allegations of harassment did not succeed. However, in relation to the colleague’s remark and its effect on her, she was awarded £8,500 for injury to her feelings. With interest, her total award came to £9,491.
This case follows on from the 2021 case (Allay (UK) Limited v Gehlen) in which the ET emphasised the importance of regularly refreshing equality and diversity training to ensure its effectiveness.
The case concerned a senior data analyst of Indian descent who was subjected to racist comments by a colleague who, amongst other things, regularly referred to his skin colour and urged him to go and work in a corner shop. After he complained to the ET, his employer pointed out that it operated an equal opportunities policy and had provided the colleague with equality and diversity training which covered harassment issues.
The employer relied on the defence afforded by Section 109(4) of the Equality Act 2010, which provides that employers will not be held indirectly liable for the unlawful acts of employees if they have taken all reasonable steps to prevent such conduct.
The defence failed, however, after the ET found that the relevant training had been provided several years previously and was stale and in patent need of refreshment. The man’s racial harassment complaint was upheld, and the employer was ordered to pay him £5,030 in compensation.
Ruling on the employer’s challenge to that outcome, the Employment Appeal Tribunal (EAT) noted that the ET had slightly overstated the position in that the colleague had undergone relevant training around two years and eight months prior to the man’s dismissal on performance grounds. That, however, did not undermine the basis of the ET’s reasoning.
In rejecting the appeal, the EAT drew an analogy with the vaccination programme pursued in response to the COVID-19 pandemic. Although vaccines were effective in creating an immune response to the virus, how long such immunity might last was also a matter of importance.
The fact that the colleague viewed his comments as mere banter indicated that the training he received had faded from his memory. The attitude of managers – who reacted in a relatively relaxed manner on hearing the racist remarks and took no further action – also suggested that fresh training was required. The ET was entitled to conclude that the training had been rendered ineffective by the passage of time and that the employer had thus not taken all reasonable steps to prevent unlawful harassment.
What do these cases mean for employers?
Employers not only need to ensure that training on equality and diversity is kept up to date and delivered regularly, but there is an additional onus on employers to monitor whether this training is effective. As in the case of Sutherland v Watkins Solicitors, if it appears that employees have not taken on board any training, then employers must consider whether they should ask the employee to take the training again (along with other measures including speaking to employees about any inappropriate conduct).
The lawyers at Grant Saw can deliver equality and diversity training and workshops to employers and assist employers with any concerns they may have about compliance with equality legislation in the workplace. To discuss this further, please email the team or contact us on 020 8858 6971.