How not to carry out workplace training – equality and diversity edition

It is not often we report on first instance cases from the employment tribunal, and there is a good reason for that. Here in the UK, judgments decided in the employment tribunal do not need to be followed by other tribunals. As a result, it is not uncommon for different tribunals throughout the land to come to different judgments on similar facts. Indeed, it is only when cases reach the employment appeal tribunal that decisions become binding on other tribunals.

There are, however, cases that pop up now and again that we just need to discuss. Some of these cases may be difficult to digest or contain difficult content. This is one of those cases.
 
The case of Ms Georges v POBL Group Ltd recently made headlines for all the wrong reasons. Ms Georges was employed as a cleaner by POBL for a period of 11 weeks. During this time, as is the case with most new starters in any business, Ms Georges was provided with an induction which included attending an equality and diversity training course.  It was at this stage that matters started going downhill.

Ms Georges attended the equality and diversity training as requested, along with 15 of her colleagues. She was the only black person in the training room. The course was run by one of POBL’s learning and development team and had been rolled out approximately 180 times in the past without any notable incidents.

During the course, the topic of “discriminatory words” was introduced and it was relayed to the group that some individuals may be more offended by certain words than others. To evidence this the trainer wrote two racially derogative words on a flip chart, the N word and P word. The trainer then invited the rest of the group to shout out the most derogatory and offensive word they knew. Whilst a number of alternative offensive terms were raised by the group, the N word was shouted out by three other individuals and three ticks were put on the flipchart to reflect the same. The Claimant herself used the word “cabbage” to refer to a disabled person, stating that she felt pressured to say something.

Following the meeting Ms Georges left the building and in the days following raised a grievance with the company’s HR department.  Both her grievance and grievance appeal were rejected.   

The Law

Ms Georges brought a claim for racial harassment against POBL. For those fellow geeks who know the Equality Act 2010 inside out, you will know that a person harasses another person where;

• They engage in unwanted conduct related to a relevant protected characteristic (in this case race); and
  
  
• the conduct has the purpose or effect of violating that person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them
  
  
• Tribunals will also take into account the perception of the victim, the other circumstances of the case and whether it is reasonable for the conduct to have the effect complained of.

Ms Georges won her case. In applying the above test, the tribunal found that the first two points had been satisfied. It was clear that the shouting out of the N word could create a degrading or offensive environment.

The tribunal then had to decide if the final point could be satisfied. On one hand, the company had a requirement to provide training on equality and diversity. Could this be achieved without mention of derogatory terms? The tribunal felt it could and should have. The tribunal could not understand from the company’s evidence why the words had to be written on the flipchart, nor could they understand why use of euphemism or other means of allusion to words or phrases couldn’t be used. It was the tribunal’s findings that it was reasonable for Ms Georges to be offended by such an approach and therefore all three points of the test had been satisfied.

The tribunal listed the matter for a separate remedy hearing to decide on the level of compensation. The judgment of that hearing has not yet been released but it will likely settle outside of tribunal. If we do hear of the settlement, and as long as its not subject to confidentiality provisions, I will post it on our twitter feed @BPE_Solicitors

What does this mean for you or your business?

The first point to remember is that this does not mean the end of equality and diversity training. Businesses should, however, look into the content of training sessions, whether that is in-house training or external training providers, to ensure that the content is suitable. Whilst this is the first case we are aware of linked to induction training sessions, it is unlikely to be the last. 

Recommended Reading

The employment tribunal judgment is available here. Please be aware it contains very offensive terms.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.