There was an interesting ruling in a case held at the Employment Appeals Tribunal (EAT) last week in the case of Allay vs Gehlen which debated a claim for race discrimination. The case bought into question whether an employer could rely on the defence that “all reasonable steps” had been taken where training was provided to an employee who discriminated against another member of staff.

In the original Tribunal case, an employee had won a discrimination claim against his employer when a fellow employee had persistently made racists remarks toward him. The employer’s claim that he had taken all reasonable steps relied on the fact that the perpetrator of the offensive comments had previously undergone Equality and Diversity training along with other employees; including some managers who were aware of the racist comments.

The EAT upheld the original Tribunal’s decision that the employer was vicariously liable for the actions of its employee because the E & D training had been delivered over a year prior to the harassment and had therefore gone “stale”. Reasonable steps, it was judged, would have been to refresh the training.

Whilst this ruling may throw some organisations’ strategies for complying with equality laws into disarray. It shouldn’t really come as any great surprise. Prejudices and consequential discriminatory behaviour often stems from deep within an individual and is moulded and shaped by their experiences and role models.

Equality and Diversity training may lay out the facts of what does and what doesn’t constitute discriminatory behaviour. It may even alleviate such behaviour it in the workplace for a time because it brings it to the surface of peoples consciousness, however, on it’s own it’s unlikely to be a permanent fix.

We have written before how it is not enough to simply have policies in existence and arrange tick-box style training in order to avoid any blame for wrongdoing falling on the organisation’s shoulders. A business needs to demonstrate that they have created a non-discriminative organisational culture that is “lived and breathed” by everyone.

Let’s remember that equality extends further than race as in this case and that under the Equalities Act 2010 there are nine protected characteristics, namely:

• Age
• Disability
• Gender Reassignment
• Marriage and Civil Partnership
• Pregnancy and Maternity
• Race
• Religion or Belief
• Sex

More recently we are seeing a new wave of potential discrimination brought about by the effects of Covid. Figures show for example that women have been disproportionality affected owing to childcare and home-schooling responsibilities whilst the schools remain closed over lockdown. And we must be cautious that our judgment for future decisions does not become jaundiced following the well documented rise in mental health issues amongst those now working from home or in isolation.

Equality and Diversity training is essential to continually remind and update us of the causes of discrimination and the behaviours that demonstrate it. But it will only be truly effective when there exists an organisational culture that is truly inclusive.

For a review of your Equal Opportunities strategy we’re available to talk to on 01452 331331 or drop an e-mail to This email address is being protected from spambots. You need JavaScript enabled to view it.