Case Study by D&I Speaker Charlene Brown: Allay v Gehlen

The consequences for “stale” Diversity & Inclusion training are worse than you think

The Employment Appeal Tribunal’s decision in the case of Allay v Gehlen had a significant impact earlier this year on Diversity & Inclusion (D&I) training and employers’ duties to provide that training. When Mr Gehlen first raised the claim, Allay (UK) Ltd thought that its defence a claim of racial harassment was sufficient.

So, what happened?

Mr Pearson had verbally harassed his colleague, Mr Gehlan in the workplace. Mr Pearson’s comments included that Mr Gehlen ‘should go and work in a corner shop’, that Mr Gehlen drives a Mercedes car ‘like all Indians’, remarks regarding the colour of his skin and questions regarding why Mr Gehlen ‘was in the country’. Following the finding of an internal investigation, Mr Pearson was mandated by Allay to undertake further equality and diversity training. It is unclear if Mr Pearson became the subject of any disciplinary action resulting from his conduct. It is also known that two managers witnessed the treatment that Mr Gehlen was subject to and had failed to report it to HR.

Under the Equality Act 2010, employers can be held liable for harassment committed by their employees regardless of whether the harassment was known or endorsed by the employer. An employer can defend a harassment claim if it is able to demonstrate that it took all reasonable steps to prevent the employee (in this case Mr Pearson) from doing the discriminatory (or similar) act in question.

Allay referred to the equality and diversity training it had at its workplace and the additional equality and diversity training it ordered Mr Pearson to undertake following the internal investigation. The Tribunal found that Ally didn’t take all the reasonable steps that were required to prevent the harassment from occurring.  One of the suggestions made to Allay included refreshing the training. Its training being “stale” was demonstrated further by the inaction of Mr Gehlan’s manager, who had shown little support for Mr Gehlan when he’d reported Mr Pearson’s comments to him. Made worse when two managers witnessed the treatment that Mr Gehlen was subject to and had failed to report it to HR.

What does this mean for employers?

The Tribunal weighed in on both the quality of the training itself and on its regularity.

The takeaway from this is that employers need to ensure they are providing training that is of good quality, but also that is frequently refreshed.  It is notable too, that these training sessions are provided with a view to remind employees of expected behaviour. For the training to be successful, it needs to be understood by employees and needs to have sufficient detail on the topics it addresses, such as bullying and harassment and what each of them looks like. 

The Tribunal also took into consideration the lack of response by the other employees who overheard the racist comments. This pointed to the fact that employers would be wise to ensure that training includes what to do as an ally, or active bystander, when such events unfold.

These issues are becoming increasingly more complex. Organisations need to be able to recognise when bullying and harassment may occur and have robust systems in place to manage situations and support all involved.

It’s also important to note that for these systems to work effectively, they must also be agile. This could look like different responses for different situations. For example, depending on whether there is misconduct involved, a grievance has been raised or if there are performance issues, that each one is dealt with correctly, sensitively and with care.  Diversity and inclusion may overlap with these issues, and they must also be given thought and navigated tactfully.

What can you do?

The Diversity and Inclusion in the Workplace 2021 conference will provide you with practical steps and solutions needed for addressing these and other situations. 

See here for more detail and to register to hear Charlene and others speak, or contact Howlett Brown at info@howlettbrown.com with further questions.

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About Charlene Brown

Charlene Brown is a lawyer, entrepreneur, and diversity & inclusion (D&I) specialist. Charlene founded Howlett Brown, the UK’s only people-intelligence firm which exists to help organisations operate in an environment where people risk is low and their integrity, inclusion and purpose thrive. Charlene has over a decade of legal, culture and inclusion experience, providing strategic employment law advice on a range of employment matters. Charlene’s work in helping clients improve their workplace culture is a significant part of her work at Howlett Brown and the firm is often commissioned to undertake independent investigations into a wide range of issues including and related to sexual harassment, microaggressions, discrimination, race, disability, gender and trans rights.

As a D&I specialist, Charlene delivers training to people of all levels across organisations on matters pertaining to race and ethnicity, intersectionality, and other protected characteristics in the workplace.  Charlene brings her D&I work beyond Howlett Brown with her role as Chair of the Ivors Academy Ethics Committee. Charlene was named in the top 20 Diversity Professionals in Industry, in the Global Diversity List which celebrates excellence in D&I. For more on Charlene visit www.howlettbrown.com