You may have seen in the news earlier this month that the UK’s Attorney General has said that DEI training should be scrapped for government departments, branding it ‘divisive, not inclusive’ and ‘not good value for money’. Here we look at the unintended legal risks of simply doing away with such training and explain how employers can navigate this minefield.
Of course, it goes without saying that training standards vary and well-meaning but poorly delivered training may be ineffective or in the worst cases offend or even discriminate against your employees. However, there are legal and practical risks in throwing the baby out with the bath water and simply ditching DEI training can expose employers to unexpected legal risk.
Solely from a legal perspective, scrapping DEI training could put employers in a tricky position as not having such training may lead to increased:
- Legal risk: it may make it very difficult to defend a discrimination claim. Under the UK’s Equality Act, an employer may be able to defend such a claim if it can show that it took all reasonable steps to prevent discrimination happening, before the discrimination took place (the ‘Reasonable steps defence’). This includes training and the burden of proof is on the employer to show it did so.
- Practical risk of complaints and claims: DEI training is often used to help encourage an inclusive speak up culture, help employees to understand how to model appropriate behaviour and to know how to handle inappropriate behaviours at an early stage if they do happen. Not providing this type of training may increase the likelihood of issues arising or escalating further if they do arise.
Bearing all of this in mind, employers may want to focus on the content and delivery of such training rather than doing away with it altogether.
So, what are some of our top tips for delivering effective training? Employers may want to check training is:
- Practical and meaningful: To reduce the practical risk of claims such training should not just be theoretical but should explain how to take the learnings forward into action into your employees’ day to day lives.
- Inclusive: Delivered in an inclusive way, to avoid inadvertently discriminating against any of your employees.
- Regular (and refreshed if particular incidents arise): Employers may consider delivering such training annually. In a recent case in the UK, the Tribunal stressed that an employer couldn’t rely on the reasonable steps defence where the training had become ‘stale’ and had not been refreshed after an incident had arisen.
- Compliant with current local law: This can be a fast-changing area, so it is important to get local advice on the current situation before delivering training. For example, on 1 July 2022 Florida enacted the so-called Stop WOKE Act dramatically limiting what and how employers can communicate to employees in workplace training relating to DE&I (see here for more information). This aspect of the law has been temporarily blocked by the Florida courts in the last few days, but the ultimate outcome remains uncertain. As well as this, it is possible that other US states may enact similar laws.
- Delivered by professionals with legal knowledge: This can help ensure you gain the benefits of such training but avoid the traps for the unwary.