Tariq Nabi talks diversity training in the workplace
by Tariq Nabi
Tariq Nabi is an employment lawyer at Dentons.
tariq.nabi@dentons.com
What is diversity training and why is it important?
It is crucial for employers, managers and employees to understand the importance of equality, diversity and inclusion in the workplace.
Diversity training is about understanding the value of different backgrounds and experiences, and helping participants understand diversity issues in the workplace.
The aim of this training is to reduce discrimination and bias, including unconscious bias, in the workplace and enable colleagues from different backgrounds to appreciate each other’s contributions.
Why should employers deliver regular diversity training?
Aside from the wide-ranging positive influences that a diverse workforce brings to a business, ensuring that diversity training is up to date also provides employers with a potential defence to certain employment tribunal claims.
Employers can be held liable for discriminatory actions committed by their employees, irrespective of the employer’s knowledge or approval of that behaviour. They can avoid liability if they can show that they took all reasonable steps to prevent employees from engaging in such discriminatory acts. This is known as the “reasonable steps” defence.
An employer will not be able to establish the reasonable steps defence to harassment if its diversity training is out of date. In one recent employment tribunal claim, the employer was found liable on exactly this basis.
The employee, who described himself as being of Indian origin, was subject to racist comments at work on a regular basis. He raised a claim of harassment related to race and argued that his employer was liable for the actions of his colleagues. The employer argued it had a reasonable steps defence. It had in force anti-harassment, anti-bullying and equal opportunities policies, and it had delivered training on these areas to staff a year and half prior to the discriminatory acts taking place.
The Employment Appeal Tribunal upheld the tribunal’s decision to reject the employer’s reasonable steps defence. It confirmed that a tribunal is entitled to consider whether the steps taken were effective or were likely to be effective.
In this case, there was a significant passage of time between the diversity training and the discriminatory acts. The training had clearly become “stale” and, in any event, did not appear to have been effective.
Despite the policies in force and the training provided, the racist comments had been overheard by a colleague who took no action. Two managers were also aware of these comments but failed to take any meaningful action to prevent further racist remarks.
Can employers simply provide refresher training?
Employers should scrutinise the content of policies and training over time and monitor their effectiveness. The key is to ensure that training is detailed and thoughtful, rather than brief and superficial. If there are new acts of harassment or if there is a continuation of harassment following the refresher training, the employer will need to take more action, such as redesigning the diversity training.
Even where there has been recent and thorough training, employers will not be able to rely on the reasonable steps defence if managers have knowledge of harassment taking place and do nothing to prevent it.
Given the impact of the Covid-19 pandemic, diversity training may have fallen down the list of priorities for many businesses. This tribunal decision is a timely reminder of the importance of regular diversity training and keeping training and policies under review.
What else can employers do?
As well as providing regular training, employers should:
• Prepare quality equal opportunities, anti-harassment and anti-bullying policies and ensure all staff are aware of how to find these policies;
• Encourage a culture where discriminatory treatment is not tolerated; and
• Handle complaints quickly and effectively, including taking disciplinary action when appropriate.
If employees engage in dubious “banter”, this is likely to be seen as a sign that the employer has not taken all reasonable steps.
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