A recent case at the Employment Appeals Tribunal has demonstrated how essential it is for businesses to have clear and thorough employment policies as well as regular and meaningful training on equality, inclusion and diversity.
The claimant, Mr Gehlen, who is of Indian origin, was employed by Allay (UK) Ltd in October 2016 but was later dismissed in September 2017 on the grounds of poor performance. After his dismissal he brought a claim to the Employment Tribunal, alleging that he had been subject to harassment on the grounds of his race by one of his colleagues, Mr Pearson.
The Company carried out an investigation and concluded that Mr Pearson had indeed made regular racist comments, such as telling Mr Gehlen that he should work in a corner shop, questioning why he was in the country, and claiming that Mr Gehlen drove a Mercedes, “like all Indians”.
The outcome of this investigation was that Mr Pearson was required to undertake further training on equality and diversity, having originally attended a course in February 2015.
At the Tribunal hearing, the Company attempted to defend the case by showing that they had an Equal Opportunities Policy as well as a Bullying and Harassment Policy in place and could demonstrate that they had provided training to Mr Pearson and his colleagues in 2015.
The Company were attempting to rely upon the defence that they had done everything that they could to prevent any instance of discrimination or harassment occurring. The Tribunal did not agree.
Whilst they did not uphold Mr Gehlen’s claim of direct discrimination, they did uphold the claim of harassment.
The Tribunal did not accept the Company’s defence and highlighted that:
- Mr Pearson had not accepted that he had done anything wrong, despite having attended the training in 2015, which suggested that the training had been insufficient;
- Other colleagues who had heard the comments from Mr Pearson, did nothing to challenge them;
- Mr Gehlen’s manager did not know what to do when the matter was raised directly with him.
- The training provided had made no reference to racial stereotypes;
- The policies in place made no reference to race and, in fact, very little reference to harassment.
The Company appealed the decision at the Employment Appeals Tribunal but was not successful.
This case has highlighted the importance of having well-written employment policies and carrying out impactful training, including Equality & Inclusion training. It is not merely enough to provide some basic training as a tick box exercise if, as in this case, employees either don’t engage with it or forget it quite quickly.
Any training needs to be reviewed for content and relevance on a routine basis and repeated frequently enough for employees to be aware of the importance of it. The more involving it is the better, and it is important to cover key topics such as stereotyping and harassment.
HR Solutions runs an Equality & Inclusion course for people managers and HR professionals, the next being on 28th June 2021. This is a fantastic opportunity to refresh yourselves on the key areas, discuss any challenges, and be updated about key case law such as this.
We also develop and deliver training on this (and other HR and Health & Safety topics) to all levels of staff and are happy to discuss any areas of concern so they can be addressed and managed. We also review employment policies so that they are more meaningful and clearer to your managers and employees.