Can Diversity Training Be Discriminatory?

It is incredibly common for companies to require their employees to attend diversity training courses these days, and there are several benefits to implementing policies and procedures that create a culture where equality is valued. This type of training is designed to eliminate discrimination and harassment in the workplace, and a sufficient diversity and inclusion training program can create a safer work environment for all employees. 

Unfortunately, not all companies will conduct this important training course in the right way though and in some circumstances, diversity training can even be discriminatory. It is crucial that all companies ensure their training courses do not go ‘stale’ and that they are delivering training that does not make their employees feel uncomfortable. The way sensitive training of this kind is conducted can easily create an offensive environment and instead of providing a company with legal protection, inadequate diversity training can result in a discrimination claim being made against them. 

An example of when diversity training was discriminatory

In the case of Ms Theresa Georges v Pobl Group Ltd, the claimant was required to attend an equality and diversity training course as part of her induction training. The respondent has an Equality, Diversity and Inclusion Policy which mandates induction training for staff on equality, diversion and inclusion. This course was attended by 16 employees including the claimant. 

The course was taken by Lisa Hearn who had rolled out the course about 180 times by then and had been a trainer for approximately 8 years. 

During the course, Ms Hearn delivered some training on discriminatory words. The slides for this part of the course raised the question ‘what are discriminatory words?’. They made the point that people find different words offensive and just because you do not find something offensive yourself it does not mean that no one else will. 

Ms Hearn conducted an exercise whereby she wrote the words ‘nigger’ and ‘paki’ in their full form on a flipchart. She then asked the attendees to shout out the most derogatory and offensive words that they could think of. These words were then added to the flip chart and Ms Hearn put ticks next to each word that was shouted out more than once. The word ‘nigger’ was shouted out three times and there were three ticks next to it. 

After the exercise, Ms Hearn asked the employees what the purpose of the exercise was. It was agreed that the exercise was to illustrate that some people found some discriminatory words offensive but that they did not have the same impact on everyone. She also acknowledged that the exercise can be uncomfortable and asked everyone if they were ok. 

The claimant felt in a state of shock after the exercise and left the building. She eventually returned and completed the rest of the training course. 

Following the course, the claimant did not return to work. She requested annual leave, which was not authorised, but she did not come in the next day. She called her line manager and explained that she was unable to come to work because of the equality and diversity training. The claimant then wrote a letter of complaint to HR and she was signed off sick with stress. 

Ben Hurrell, Senior HR Business Partner (Learning and Development) investigated the complaint and did not uphold the grievance. The claimant appealed against the grievance outcome and the appeal officer was Lucie Thomas, Director of Learning and Development. She found that everyone she had interviewed had spoken positively about the training course and she did not uphold the appeal. 

The claimant claims that the use of the word  ‘nigger’ in the training environment amounted to racial harassment and she made a claim to the Employment Tribunal. 

The Tribunal found that the claimant was genuinely shocked and distressed following the discriminatory words training, and the use of the ‘n’ word in a group context by the trainer and by others in the group had caused her to feel this way. The unanimous decision of the Tribunal was that the claim for racial harassment was well-founded. 

The use of the full ‘n’ word had the effect of creating a degrading and offensive environment for the claimant and of violating her dignity. This word is a deeply loaded and offensive word with distressing racial connotations and it was found that it caused the claimant to feel deeply offended and uncomfortable. 

The Tribunal also found that the method of delivery for this training course was risky and the course was conducted insensitively. Any protective measures employed would not soften the blow to a person undertaking the training course who has heard words which were loaded and deeply racially offensive. Encouraging employers to say deeply offensive words was a crude and unnecessary way of delivering the training and a more sensitive means of delivering the message could have been employed which would still deliver the stated objective. 

It was concluded that the claimant was harassed on racial grounds and there will be a hearing to consider compensation. 

What employees should know about discrimination claims 

The Equality Act 2010 (EqA) covers issues involving discrimination at work and it recognises several different forms of discrimination. Direct discrimination, indirect discrimination, harassment and victimisation are all protected against, and this key piece of legislation makes it very clear that employees should not suffer unfavourable treatment due to having a ‘protected characteristic’. You can find a list of these protected characteristics under Section 4 of the EqA. 

Whilst for some employment law claims, you will need to have been employed continuously for a period of 2 years or more, such as unfair dismissal claims, this is not the case with discrimination claims. The EqA provides protection for every section of employment, including both recruitment and training, and discrimination can be generated by different sources. For example, the discrimination in the case above was not the employer’s actions, however, the employer was still held responsible and this is called  ‘vicarious liability’. 

If you are being treated in a manner that causes you either emotional or physical suffering, you may be able to make an Employment Tribunal claim. The majority of discrimination claims need to be filed within three months less one day from the date that the discriminatory comments or behaviour happened. It is beneficial to seek legal advice as soon as possible after the discrimination occurred, this can help to prevent any problems relating to time limits. 

Getting some employment law advice in London

Should you wish to speak to an employment law specialist about a situation in the workplace that has violated your dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for you, be sure to contact Damian McCarthy. You can confidently turn to Damian for employment law advice in London knowing he regularly instructs on high-profile discrimination cases and over the years, he has built a reputation for fighting “tooth and nail” for his clients. You can trust he has the skill required to assist you with your employment law issue and he is known for his client-focused approach. 

With more than two decades of experience, Damian has extensive knowledge of UK employment law and he can provide you with the sound legal advice you need. If you choose to make a claim, whilst working with you to develop a winning strategy, Damian can guide you through any difficulties you may face. He will ensure you are prepared for all eventualities and he has turned very difficult cases into winning cases. For a free, confidential and no-obligation discussion, feel free to get in touch with Damian today.