Employers: can you inoculate against racism?

12 February 2021 | Applicable law: England and Wales

When assessing the effectiveness of equality and diversity training a Court recently drew an analogy with the coronavirus vaccine: 'how effective will the training be to prevent harassment, and how long will it last?'(1)

As an employer, you are vicariously liable for the discriminatory acts of your employees. However, there is a valuable statutory defence(2) if you can demonstrate that you took 'all reasonable steps' to prevent the employee from doing 'that thing', or 'anything of that description'. The bar is set high for this defence.

Diversity programs

An entire industry has been established to educate staff on diversity in the workplace. Unfortunately, what is often served up is less than adequate training for which there is little or no evidence base. Indeed, some research shows that mandatory training often feeds the very resentments and prejudices that it is supposed to eradicate. Yet many employers roll out diversity training and sigh with relief thinking they have ticked ‘the reasonable steps’ box and are safe from claims brought by employees.

In the Gehlen case, training rolled out only two years previously was described as ‘stale’ and required refreshing: the employee in question engaged about once a month in what he described as 'racial banter' and those around him (including managers) did nothing to stop or report it. The employer did not succeed in its reasonable steps defence. The Court considered it legitimate to reflect on not only what steps had been taken by the employer but also how effective those steps were likely to be when they were taken and, in appropriate circumstances, how effective they proved to be in practice.

What can be done?

Staff working under stressful conditions may be less thoughtful about their use of language. Also after many months at home living like hermits, many of us have become unused to office mores. But, as you contemplate a return to work strategy for increasing numbers of freshly vaccinated staff later this year, it is important that you dust down your training and policies and ensure they are fit for purpose.

So what training might work?(3)

  • You should ask for evidence that the training you are rolling out works and take account of feedback from staff who pilot the training.

  • If training is online or boring, might small groups with role playing, perspective taking and goal setting work better? Might elements of unconscious bias or cultural competency training be more effective?

  • You should do due diligence on training providers and make reasoned decisions about the type of training you purchase, how it is delivered and what you expect to achieve from such training.

And finally, if there are particular individuals in the organisation who are known to be resistant to being trained, then greater protection may be achieved through 1:1 coaching rather than undifferentiated diversity training.

Employment tribunals set a high bar for the reasonable steps defence. To run it successfully organisations need to avoid a tick box approach and be able to demonstrate a top-down commitment to diversity and inclusion accompanied by cultural change.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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