The provision of workplace equality and diversity training can afford employers a powerful defence in employment proceedings. As one case showed, however, such training is wont to become stale in employees’ minds over time and is unlikely to be viewed as effective unless regularly refreshed (Allay (UK) Ltd v Gehlen).

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 an Employment Tribunal (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.