“Stale” training insufficient to establish reasonable steps defence to harassment claim

The Employment Appeal Tribunal has upheld an employment tribunal’s decision to reject an employer’s defence to a racial harassment claim, based on training which had been delivered several years before the events in question and was “clearly stale”.

Under the Equality Act, an employer is liable for acts of harassment by its employees done in the course of their employment, unless it can show that it took “all reasonable steps” to prevent them from acting in that way.

As the EAT points out, assessing an employer’s reasonable steps defence involves three stages:

1. identify any steps that have been taken
2. consider whether they were reasonable
3. consider whether any other steps should reasonably have been taken.

The key point in this case was that although all the perpetrators had been given anti-harassment training, this had been some years ago, and the evidence showed that it was not being followed. As the EAT put it:

“Considering this matter during the Coronavirus pandemic, as we look forward to widespread vaccination, we are interested not only in whether the vaccine will be effective in eliciting an immune system response, but also how long the response will last. There is an analogy to be made; how effective will training be to prevent harassment, and how long will it last.”

At the very least, this decision shows that the effectiveness of training should be monitored, and further training delivered as required. Without that, an employer is unlikely to satisfy the employment tribunal that it has taken “all reasonable steps” to prevent the harassment from occurring.

However, training alone is unlikely to be sufficient, since a tribunal will also wish to examine the employer’s anti-harassment procedure, and how effectively it is implemented and enforced. In this case the EAT noted that the employer’s equal opportunities policy did not make any reference to harassment. In addition, the anti-bullying and harassment procedure only referred to harassment in the title and made no mention of race. There was also evidence that the relevant managers did not take any action when instances of racial harassment were reported to them.