Is you Diversity Equality & Inclusion up to scratch?

A judgement handed down from the Employment Appeal Tribunal (EAT) on 4th February 2021 has stated that stale and ineffective DE&I training will no longer be considered adequate by the law. Are you confident that your equality policies are the best they can be? If not, it’s time to start making changes – before it’s too late.

What happened.

A now ex-employee of Alley UK Ltd, who is of Indian heritage, was subjected to racial abuse and harassment by a fellow employee. Statements such as ‘work in a corner shop’ and ‘why are you in this country’ where made on a regular basis by the perpetrator. On top of this, two managers are also mentioned in the ruling. One who heard the abuse, called it out, then did nothing else. And another, who was told by the abuse victim what had been said – his response was to advise the victim to tell HR, yet he did nothing himself.

The employers defence.

The employer argues that it had “taken all reasonable steps to prevent harassment, due to its provision of relevant training”. This includes equal opportunities policy, antibullying and harassment procedure and Equality and Diversity training. However, this training was 20 months old and to a poor standard with the EAT commenting that ‘brief and superficial training is unlikely to have a substantial effect in preventing harassment… the less effective the training is, the more quickly it becomes stale”.

The EAT commented that the ‘reasonable steps’ defence is designed to encourage employers to take significant and effective action to combat discrimination and is only available to an employer that can show that all reasonable steps to prevent harassment have been taken. Which is clearly not the case here.

The ruling.

EAT have taken a 3-step approach in making a decision on this ruling, “1. identify any steps that have been taken” (the employer provided training and policies) “2. Consider whether [the steps taken] were reasonable” (the training was to a poor standard) “3. Consider whether any other steps should reasonably have been taken” (such as more substantial refresher training).

The decision was made that the conditions of these steps are not adequately met, stating that consideration has to be given to the nature of the training and the training provided is unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective and last longer. The EAT also states that it is relevant to consider what has happened in practice. The fact that employees have attended anti-harassment training but have not understood it, or have chosen to ignore it, may be relevant in determining whether all reasonable steps have been taken. Also considering that not only the perpetrator, but two other managerial employees have not followed guidance should be given special consideration.

The ruling stated that although some reasonable steps have been taken, the defence requires that ALL REASONABLE steps have been taken. With the lack of effective training and a further lack of refresher training, it is clear that the employer has failed to take ALL reasonable steps to prevent situations such as this. With these failings in mind, the Employer was ordered to pay £5,030.63 to the victim, including interest.

What this means for you.

Put simply, the old check box exercise that used to be your Diversity, Equality and Inclusion policy just will not cut it anymore. Gone are the days where you could sit an employee Infront of a 15 minute “training” video or have a 500-page manual sat collecting dust on a shelf somewhere and call it a job well done.

Your training has to be thorough, robust and regularly reinforced. You must be sure it has been understood and absorbed by your employees and take steps to make sure the training is not being ignored or forgotten. Remember, you are responsible for your employees and are vicariously liable for their behaviour in the workplace.

On top of that you need to have a policy in place that leaves no stone unturned. One that is clear and precise in outlining exactly what your stance is, what you expect from your employees and what steps you will take if these conditions are not met. Along with ensuring you have procedures in place that make reporting easy, with reviews in place to correct any short fallings.

If or when an employee faces discrimination at work, you must be confident that you took ALL reasonable steps to prevent it, that you can act as quickly as possible to support that employee and that your next steps are definite and effective.

Discrimination can no longer be the shadowy elephant in the room, instead DE&I needs to be an organic, evolving, vigorous presence in the everyday workings of your organisation.

Can you afford to ignore the changes that are happening in the world of Equality at work? Not only could you face fines of thousands of pounds like the one ordered in this case, but current social awareness also means that one wrong step could destroy a business’s reputation.

What we do to prevent this happening to you.

Here at PEACE, we take a fully holistic view when it comes to implementing DE&I policy for our clients. Our consultation is there to enable clients to build DE&I policy and procedure that can stand up to the sharpest of scrutiny. We will support you from the start and beyond to ensure that not only do you stay on the right side of the law, but that you are doing the truly right thing for all of your employees.

In this tribunal it is stated that consideration must be given to “how effective [steps taken by an employee] have proved to be in practice”. At PEACE we concentrate on the practical implications of Equality policy - our aim is to make Equality at work practically workable and effective. Action is useless, if its impact is not felt when in practice.

As we have mentioned above the tribunal states that “Thorough and forcefully presented training is more likely to be effective and last longer”. We take this into consideration when developing all of our training courses and workshops. With information being presented in multiple ways to cover all different types of learners and regular learning and understanding checks throughout. Our workshops are also designed to re-enforce that core training with the aim to reduce the chance of someone forgetting or ignoring what has been learned.

The tribunal also states that to define when training should be renewed or refreshed you must consider the effectiveness. Stating “if managers become aware that despite training employees are continuing to engage in [this behaviour] or demonstrating that they do not understand the importance of preventing it and reporting it to managers, this may serve as notification to employers that it’s time to renew or refresh. The fact that harassment has taken place after such training may provide some evidence that demonstrates the poor quality of the training that was provided’.

With this in mind we aim to help businesses develop a rigorous reporting procedure. Our consultations provide continual support in checking and reviewing effectiveness of training, policy and procedure. We understand that when it comes to renewal and refresh, timescales mean very little. In its place effectiveness testing must be applied with refresher training scheduled around that.

If you are ready to start making practical changes that benefit you and your employees, do not hesitate to get in touch with PEACE today.