The one thing every business needs from its employment lawyer this year.
As legal advisers our job starts long before the court room and it is where we do our most valuable work. A world in which people don’t experience discrimination is a world in which no discrimination claims are brought and a world in which considerable time, stress, cost etc. is saved. Ok, it is also a world in which our litigation practice suffers but let’s be honest, we are a long way from that world and we could get considerably closer to it without worrying too much about having to rethink our career choices.
So, what is the most valuable work? What is the one thing every business needs from its employment lawyer this year (and every year)? The answer is very simple but the EAT have had to remind us of it.
Equality and Diversity training.
Now you may think, ‘that’s ok we did that last year’ or perhaps, ‘all our new joiners receive it’ but think again. In Allay (UK) Limited v Gehlen the EAT upheld a tribunal’s decision that the employer (appellant before them) could not rely on training which was stale to mount a section 109(4) defence.
Section 109(4) of the Equality Act 2010 means that an employer can defend a claim resulting from the otherwise unlawful discriminatory actions of an employee if it can demonstrate that all reasonable steps were taken to prevent the employee from doing “that thing” or “anything of that description”.
On the facts of the case racist comments had been made and had been either heard by other colleagues or reported to other colleagues and not reported further. The employer sought to rely on section 109(4) to defend the claim brought against them. The employer pointed to their equal opportunity policy and procedure and the harassment policy and procedure, they also relied on training given to staff in January/February 2015. The employee had been employed from October 2016 to September 2017 during which period the racist comments were made and were found, by the Tribunal, to be made on an regular basis.
The section 109(4) defence failed because the Tribunal found the training had grown stale. The training clearly informed people about what to do in the event that they were aware of harassment or discriminatory behaviour but despite this three people were aware of the issue and did nothing about it. This demonstrated that the training had become stale and ought to have been refreshed. Refreshing training was a reasonable step for the employer to take, note that this was a relatively small employer and it was still a reasonable step for them to take. The failure to take this ‘reasonable’ step meant that they could not rely on the defence which required them to have taken all reasonable steps.
So, as I said at the beginning, all employers regardless of their size need to be running regular equality and diversity training. In an ideal world that training prevents discrimination altogether. If it can’t wholly prevent it then the training should at least mean that any discrimination which occurs is addressed swiftly and fairly in a manner which protects and empowers the victim. In either of these situations a tribunal claim is avoided. If a claim cannot be avoided at least doing the training will mean that the employer has a better chance of demonstrating that they have taken all reasonable steps to prevent discrimination and thereby defending the claim.
Just a health warning, training alone is not enough, regularly updated and communicated policies alongside a culture where discrimination is not condoned are other essential elements of avoiding claims or defending them based on section 109(4). So, if you are an employer, get in touch with your employment lawyer/HR adviser or seek out independent trainers. If you are an employment lawyer, contact your clients and double check that training and policies are up to date. If you are an individual, check out your employer’s training and policies and, if necessary, ask for an update.
Commentary by Lydia Banerjee