Alerts

Racial harassment during a diversity training course

Theresa George v POBL Group Limited

Ms George was employed as a cleaner by POBL Group Limited at a hostel in Newport, Wales from 4 January 2018 until 23 March 2018.

As part of her induction she was required to attend an equality and diversity training event on 8 March 2018. Lisa Hearn, who took the session, had been a trainer for around 8 years and was employed within the Company’s Learning and Development Team. The Company had taken the session around 180 times.

Shortly before a break in the session Ms Hearn delivered a segment on discriminatory words, and asked the attendees to shout out some discriminatory words. She then wrote the “N word” in its full form on a flipchart. This was shouted out a further three times by different attendees which was visually represented on the flipchart by three ticks beside the word. Ms George, who was the only black person in the room, said she “felt under pressure to say the N-word but instead offered the word ‘cabbage’. She stated that she was in a “state of shock”, and requested annual leave using an online system before the training ended, which was denied. She did not attend work the day after the training.

Ms George complained to her line manager about the training session and hearing derogatory terms several times that she did not think was right. She then raised a grievance with the HR department and was signed off work with stress. The grievance was investigated but not upheld as the Senior HR Partner concluded that the purpose of the training session was to highlight that using derogatory language in any context could cause offence and undergoing the training “in a very controlled environment (i.e. the training room)”, achieved this purpose.

Ms George appealed the grievance and was unsuccessful.

She brought a claim to Cardiff Employment Tribunal claiming the use of the word in the training environment amounted to harassment.

Decision

The Employment Tribunal upheld Ms George’s claim accepting that the use of the ‘N’ word had the effect of creating a degrading and offensive environment for her and of violating her dignity.

POBL Group submitted that Ms George may have been affected by the previous dealings that she had had with her line manager. Allegations of fraudulent timesheets and absence had been brought against Ms George prior to the training and POBL claimed this could have affected her perception of events. She received a letter inviting her to a probationary review on the morning of the training and she would have been aware that she was in trouble and that dismissal was a potential outcome.

The Tribunal dismissed this argument. It concluded that it was not reasonable to expect people to shout out full discriminatory words in a group context. Even though the trainer had warned delegates that the words could not be used under any circumstances outside the training context, they were still prepared to encourage delegates to use the terms in the group training. The environment caused Ms George to be deeply offended and uncomfortable and this was evident in her sickness absence from work due to stress following the training. 

Comment

Employers should be aware that acts of harassment can be indirect. Harassment under the Equality Act 2010 is “unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.” The “purpose or effect” part means that harassment can occur even if the victim takes comments etc. not as they were intended, provided it is reasonable for them to do so.

The irony of this case is that employers can escape liability for claims of harassment by staff if the employer can show that it took all reasonable steps to prevent their employee from doing the discriminatory act.  Equal opportunities training is one of the things an employer can use to evidence that they have taken all reasonable steps, together with a robust policy and frequent updates.

Our Employment Team can provide Employment Law Training, including equal opportunities training, that can be dovetailed to your business. Our team regularly work alongside employers to provide practical and effective training, designed to help them manage the workplace effectively. In tandem with your business objectives our lawyers can provide training to help you deal with difficult situations and get the very best out of your employees.

If you have any queries about our training packages or any other HR queries please do not hesitate to contact the employment team on 01228 552600 or 01524 548494.

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