AGENDA
LEGAL MATTERS
BY MATTHEW AINSCOUGH, BELL & BUXTON SOLICITORS INCORPORATING IRONMONGER CURTIS The senior employment lawyer on harassment in the online or remote workplace
WORKPLACE TRAINING ON HARASSMENT MUST BE ‘MORE THAN TICK-BOX EXERCISE’ Even though the majority of employees are working from home at present, workplace harassment could still take place. Indeed, there has been recent reports in the media that harassment has actually increased during the COVID-19 pandemic, and instead of taking place in the office, it is now taking place online or remotely. In harassment cases, an employer can potentially defend such a claim if it can show that it took all reasonable steps to prevent the harassment or discrimination from taking place. Providing training to staff on preventing discrimination and harassment is one way in which employers can show that they took ‘all reasonable steps’. However, in a recent case before it (Allay v Gehlen) the
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Employment Appeal Tribunal (EAT) ruled that if the training has not been updated and has been allowed to become “stale”, then the employer cannot rely on the defence. In this case, the EAT found that the training had been conducted about one year and eight months before the employee began his employment and two years and eight months before his dismissal. The EAT decided that whatever training had taken place was no longer effective and there was nothing in the case which suggested that further training of a good standard would not have had a good chance of preventing the harassment. The EAT emphasised that an employer seeking to rely on the defence that it has taken all reasonable steps to prevent
harassment or discrimination has to cross a high threshold. It is generally accepted that having equal opportunity policies and procedures is not enough for an employer to escape liability for acts of discrimination carried out by its employees. The EAT emphasises that the mere fact of having training on those policies and procedures is also insufficient. The quality of the training is relevant, so brief and cursory training is unlikely to have much of an impact. It is also clear that if an employer believes employees might have forgotten the training, it should be refreshed. In summary, employers should be encouraged to ensure that workplace training on discrimination is substantial in nature, is more than just a ‘tickbox’ exercise, and it is conducted
regularly (perhaps once a year, if not more frequently) to avoid it becoming ‘stale’. Employers should also consider whether there are other ways of promoting a diversity and equality at work, such as through policies and procedures, initiatives, communication strategies, and making it easier for victims of harassment to come forward. Aside from avoiding legal liability, an employer that takes harassment and discrimination seriously is likely to inspire a happier, more diverse, and more secure workforce. If any employers would like any equality and discrimination policies or advice on delivering training, please get in touch with Matthew Ainscough at m.ainscough@bellbuxton. co.uk.
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