The implications of workshop floor “banter” could be far more serious than you might expect.
It is essential for employees to be fully of aware of what constitutes inappropriate behaviour in the workplace in order to avoid incidents of bullying and harassment being disguised as harmless “banter”.
It has long been recognised that women are generally under-represented in the manufacturing sector when compared to other major UK sectors. This often makes women more susceptible to bullying and harassment on the basis of their sex. Further, the diverse nature of the manufacturing sector in terms of race, culture and religion could lead to incidents of discrimination and harassment in the workplace, which the employment could ultimately be held liable for.
The recent Employment Appeals Tribunal (EAT) case of Allay (UK) Ltd v Gehlen found that the employer could not rely upon the ‘all reasonable steps’ defence to a claim of racial harassment as the training provided to its employees less than two years earlier was deemed “stale”.
Section 109(4) of the Equality Act 2010 sets out the ‘all reasonable steps’ defence which the Respondent in this case sought to rely upon. An employer is able to defend claims for discrimination or harassment where it is able to show that it took all reasonable steps to prevent the employee ‘from doing that thing, or from doing anything of that description’.
This decision has highlighted the importance of organisations providing up to date and meaningful training to all of its employees regarding appropriate workplace behaviour. It also reinforces the need for employers to provide regular refresher training in order to avoid it becoming “stale”, which it seems can happen rather quickly in light of this case.
In its original decision on 7 March 2019, the Employment Tribunal found that ‘the training which had been delivered was several years before the events in question and was clearly stale. We do not accept that the respondent had taken all reasonable steps to avoid discrimination in the workplace for a reasonable step would have been to refresh that training’.
The EAT in Allay v Gehlen held that the Employment Tribunal ‘were entitled to conclude the training was stale and was no longer effective to prevent harassment, and that there were further reasonable steps by way of refresher training that the Respondent should have taken’.
It is worth highlighting some of the observations made by the EAT in reaching its conclusion: -
- ‘Brief and superficial training is unlikely to have a substantial effect in preventing harassment. Such training is also unlikely to have long-lasting consequences. Thorough and forcefully presented training is more likely to be effective, and to last longer’;
- ‘It is not sufficient merely to ask whether there has been training, consideration has to be given to the nature of the training and the extent to which it was likely to be effective. If training involved no more than gathering employees together and saying "here is your harassment training, don't harass people, now everyone back to work", it is unlikely to be effective, or to last’; and
- The Respondent’s ‘equal opportunities policy does not make any reference to harassment. The anti-bullying and harassment procedure only refers to harassment in the title; the document thereafter only refers to bullying, and makes no mention of race’.
In light of the above considerations, it would be prudent for employers to take some time to review their current policies in relation to the provision of workplace training, equal opportunities, and anti-bullying and harassment to ensure that employees are fully aware of the consequences of inappropriate workplace behaviour. It is also important to note that bullying and harassment in the workplace can extend to inappropriate and/or offensive posts made on social media. Therefore, a stringent social media policy should be implemented which sets out the guidelines on what is and is not permitted behaviour on social media both at work and at home.
For further insight on bullying in the workplace and how to avoid such situations arising, please see our most recent blogs here and here.
We offer tailored training courses for HR teams, operational managers and in-house legal teams which are designed to meet the needs of your organisation. We also offer an Appropriate Workplace Behaviour training course, the details of which can be found here.
If you would like to know more about our workplace training courses for employees please do not hesitate to contact us.
