Equality & Diversity Training: Why employers need to do it and why it makes sense to do it online

Kellie: Good morning and welcome to our webinar, "Why Employers Need to Do Equality and Diversity Training and Why It Makes Sense to Do It Online." My name is Kellie Shields. I'm joined today by Barry Phillips. Barry is the Chairman of Legal-Island. He's a former practicing barrister, having specialised for many years in employment law. He has worked both in the north and in Dublin representing employees in labour law disputes. Barry founded Legal-Island 20 years to help employers understand how to comply with the employment law, but at the same time get the most from their employees.

The webinar this morning should take around 30 minutes. If you have any questions during the session, feel free to type them into our chatroom and we will try to get them answered for you. Don't forget there's a free trial of the online learning that Barry will mention today. Details of how to register for this will be given to you at the end of the webinar.

Without further ado, I'm going to pass it over to Barry.

Barry: Thank you very much, Kellie. Good morning to everybody joining us in the webinar. I have a large number of attendees to this webinar and I really hope the next 20 to 30 minutes will be of use to you. I'm sure everybody in the webinar will be very aware that there are an awful lot of harassment issues that are regularly in the press and the media. So, I'll spend some time today looking at that issue and how we can use or how we can position things in a company to make sure we are best placed to resist claims for harassment that are coming in.

First off, I just want to ask this question of everybody because this is something that does catch out an awful lot of people. I just want to give you this first scenario. Let's imagine you're an HR person in an organisation. Employee A harasses Employee B. As soon as Employee B tells you about it, you conduct a model response including a prompt, fair and thorough investigation and you impose an appropriate sanction against Employee A.

In your view, have you as the employer done everything required to avoid liability for the conduct of A? Perhaps you would just like to take a moment to think about that. If you are watching with a colleague, perhaps you'd like to take a few seconds just to speak to your colleague in terms of what you think the answer to that is.

I can tell you when we did a webinar earlier and asked that question to people, the responses came in and it was about 80% that said you hadn't done enough to avoid liability and about 20% said that they thought you had. The answer to that is chances are the employer hasn't done everything that they were being required to do. In fact, they haven't done everything they are required to do to avoid liability for the conduct of A. We'll see later on in the webinar why that is the case.

But for now, I ju want to address this big question that keeps coming at me. I've been asked this by countless people that work in HR. They'll say to me this. They'll say, "What I don't understand, Barry, is how is it that something which began as quite a small issue in the workplace that I thought I can manage and resolve and keep it small, very, very quickly spiralled into something that was huge and became serious litigation that ended up taking an awful lot of my time to resolve. How did that come about?"

My answer to that has, I think, three strands. It begins in the employment lawyer's office. What I do is just try to explain to the HR person and say, "What's uppermost in the employment lawyer's mind is the risk of getting sued by a client." Now, this may seem a strange thing for a solicitor who might spend a good part of their working day suing others to be obsessed with not getting sued themselves.

The truth of the matter is it is actually quite difficult to stick a claim of negligence on any lawyer because most actions basically don't have to follow any set procedure. They can all be done differently and some lawyers will do them in a certain way and other lawyers will do them differently again. For example, some lawyers may think, "In an employment-type case, what I prefer to do is to basically not do very much until the actual hearing and then I let the guns go, so to speak."

Some lawyers might say, "No, that's not my style. I prefer to do a lot of work early on and I like to do a lot of paperwork early on, request a lot of documents from the other side, try and identify where their weaknesses are and with the aim of resolving the issue before we even get through the door of the hearing."

The truth of the matter is that if a lawyer misses a deadline, then it's very easy to prove negligence. There's a legal term which is called "res ipsa loquitur." It basically means the matter speaks for itself. So, that's why a lawyer is really concerned about not missing a deadline because if they do, it's very, very easy for a client to prove negligence.

Now, put that together with very short time limits. As everybody will know, most, not all, but most actions have to be cleansed within six months when it comes to employment cases. That's not very much time and it doesn't leave an awful lot of time for gentle and careful negotiation with the other side.

Also, there's what is sometimes referred to as the fear of the missed action. A lawyer doesn't want to get to the Workplace Relations Commission and suddenly realise as they're in the hearing that they've forgotten all they should've, perhaps, put on the complaint form that the matter is not only an issue of unfair dismissal, but it was also a matter of dismissal due to pregnancy discrimination or due to a race discrimination issue. At that stage, it can be very difficult to add on actions.

So, it's much better for a lawyer right at the beginning to put on the action in the first instance even if they think, "Okay, later on I may have to withdraw this." Much better to do it that way than to think, "Okay, I'll add something at a later stage," because by then, it may be too late.

So, at that first hearing or the first meeting with a client, if the client is saying, "I've been unfairly dismissed," and the lawyer is thinking, "Okay, but I think there might be a race issue here or there might be another issue around," to protect themselves, they will put that on the complaint form.

There is no such thing as an overloaded complaint form. A lawyer can't get in trouble for putting too many complaints down right at the beginning. So, it is quite easy for a situation to develop in which a complaint form arrives front loaded and takes an HR person by surprise because those three things have come together—the lawyer has been worried about the risk of getting sued. There were very short time limits.

So, the lawyer was thinking, "Okay, let's issue sooner rather than later to make sure that we meet the deadline," and the complaint form could come front-loaded including a number of complaints that you as an HR person might even think it completely ridiculous. What the lawyer is really doing is protecting his or her position to make sure that if an issue like that does come out, then it is promptly before the commission.

Okay. What about when it does go wrong? It can be very disruptive and damaging to morale. There can be legal fees and quite substantial legal fees that are involved, a loss of reputation and in a relatively small jurisdiction such as the one we have here in Ireland, reputations can count for an awful lot. If you get a reputation as having problems with harassment in the workplace, it can be very, very difficult to change and move on from that reputation. Awards can be substantial. So, when things do go wrong, an awful lot of trouble can ensure.

So, back to the question that I asked right in the beginning of this webinar. It's simply this, that if there is a harassment issue between Employee A and B and B comes to you and notifies you of that issue, if you do a model response, have you done enough? Well, the answer is that you haven't. What you have to do to resist any actions that come against your employer is you have to show in that particular situation that you did everything that you reasonably could be expected to do to make sure the harassment never took place in the first instance.

HR people ask me that or ask me what does that mean, what is the test and what do they have to do to comply with that. I suppose the straight answer to that is there is no definitive judgement anywhere that I could see that has laid it out and said if A, B and C do all of those three things, you will be able to resist a harassment claim in that instance.

However, most of the top lawyers that I have spoken to argue that you need to do three things to really get your house in order. You need to have an up to date equality policy. You need to ensure the policy has been actively worked into an organisation and communicated to staff. You have to have done up to date training on equality and diversity issues.

I just want to talk about each of those quickly now. The first is having an up to date equality and diversity policy. I know when I was working in [Kuluk 00:12:00] representing employees on labour law disputes, the first thing I would do if there was an action that I was watching for equality complaint was to write to the employer and ask them for a copy of their equality and diversity policy.

Very often, this might come back and it would come back and it would just mention like five or six of the nine grounds. You would see a document that was really seriously out of date. That was good news for your employee because that was something I could really use as evidence that the employer is not taking equality and diversity issues seriously. So, what employers need to do is to avoid having to produce documents that immediately put them on the backfoot in the first instance.

That's why an equality and diversity policy has to be up date and it has to be robust. The second thing is that the policy must be actively implemented into an organisation. So, that means it has to have been communicated to staff. It has to be cross-referenced in other policies if you've got a recruitment policy for example or a promotions policy, it should be cross-referencing your equality policy.

Employees ideally need to see the equality policy from day one of their employment. I know some employers will do just a small test after the employee has started the first day and say, "Okay, here's a small test for you to do on the equality policy so that they know that not only have they seen it, but they've read it and they've understood it.

The third thing that most employment lawyers would say you need to do is equality and diversity training. The important thing to notice here is that it needs to be all staff training. Quite a lot of companies have come us and say, "Okay, can we have some training? We just want it for our most senior employees." We end up saying to them that is useful. But really to be completely compliant, you must do all staff training. It's preferable that you do it from day one of employment so if you have new staff members joining, it should be part of their induction process that they do it on the first day with you.

So, equality and diversity training—what about the Legal-Island eLearning training that we provide? The first thing to say is that this is jurisdiction-specific. We do three modules. One is for a jurisdiction here in Ireland. Another is for the north and the third we do for GB. So, for some larger employers in Ireland who have a workforce in different jurisdictions, we can meet their needs and we can say if they're working in London, we can offer them the English module but if they're based in Cork or Limerick, they'll obviously do the Irish one.

There are some modules that we're aware of that try to be very generic and try to pretty much say wherever you are in these three jurisdictions, this module will work. We think they're so watered down that they don't have any value. We think for learning to be useful and important, it has to be specific to the jurisdiction that it is working in.

The next thing I want to mention is that it is very interactive. Some HR people have come to us and said, "Look, eLearning, I'm not so sure because we've used it before and it's really hard work to get through. It's very, very dull and it appears to be a PowerPoint presentation online." Unfortunately, a lot of eLearning is like that.

Ours is very different. When we built it, the aim was for it to be engaging because if it's not engaging the user, the user is not learning. So, the first thing it had to do was to engage the user. That's why right at the beginning, you will be asked lots of questions as a user. You will be dropped into various scenarios and you will be asked for your views in terms of how that scenario should be played out.

As an example, this is Jimmy. He's been deaf in ear for most of his life. Although he sometimes wears a hearing aid, he much prefers to lip-read. His colleagues all know this and turn to face Jimmy when they're speaking, all except Mick. We ask a question about Mick and it says Mick takes a view that if Jimmy can't hear, "that's his look out and he shouldn't expect others to go to extra effort to help him."

You're asked if you manage both Jimmy and Mick, how would you respond in this situation? You're asked to indicate yes/no, yes/no to some various options there. Once you click submit, you'll be presented with another slide which will indicate to you whether you selected the right options there and further information will be given to you.

So, the module is very interactive. It takes you into a whole number of different scenarios across a wide range of harassment and discrimination issues. And of course, it is very up to date. The great thing about online learning is it produces a record of learning in real time online. So, if you're the HR manager or you're the training officer, you can just log in to the website that comes with our training. At any one point, you can see who's done the training and who has still to do it.

Of course, that's really important, not only from a logistical point of view because you can email a few employees as they come on, "You were due to do this yesterday and you haven't done it. Please make sure it's complete." But if ever you have an issue and you were off to the Workplace Relations Commission, you can just print out a full record of the training showing to the commission that everybody had done the training in the time which they have done it.

Of course, the game-changer when it comes to online learning is this, that it is delivered not at the user's convenience but at the trainer's convenience. That's a huge thing which makes this type of training feasible for many organisations that prior to the advent and the popularisation of online learning weren't able to do.

To give you an example, this company is not far from where we are at Legal-Island. One of them has 25% of their workforce outside of their office. They may be on the road or they may be abroad. In the old days, logistically, it was a complete nightmare for them to get everybody through this type of training. Now, they do it online. It's very, very easy. They just give their employees a window of time in which to do the training and they can log who's done it through the portal.

Another organisation also not far from us, they have four branches. Three of them are in this jurisdiction and one of them is up north. Again, if they want to try and do classroom-based learning, they basically say that it would just be too difficult for them to do it. In fact, they regularly admit that they didn't used to do it because it was just too difficult, whereas now online learning for all their staff here, they do the Irish module and for those that have employment up in the branch in Belfast, they're given the Northern Ireland module to do.

The eLearning comes with an assessment at the end of it. So, not only can you show it to the Workplace Relations Commission that somebody has done some training, but you can actually prove that they understood it because they passed the assessment and the assessment has a pass mark of 80%. Our experience is that the very large majority of users that do this assessment pass the first time, but the one or two that don't can be invited to do it all again.

Users to date—we have a large number of users. Throughout the Island, there are some 60,000 users of our eLearning modules. Those that are currently doing or have done the eLearning on equality and diversity are numerous. They include the Department of Justice and Equality, Waterways Island, Institute of Tralee, Leinster Rugby, Irish Rugby Football Union, Calor Gas, Greyhound Recycling, to mention just a few of them.

Costs—we're confident that we can half the cost to you, that if you were doing equality and diversity training classroom-based, it'll be at least 50% cheaper to you if you did it online. We can send you details of the cost of this, which are based on the user numbers in your organisation. All you need to do is email Debbie Wilson, Debbie@legal-island.com. She can send you some cost details. After this webinar has concluded, we will send you more information in terms of how to take your complementary access and some other frequently asked questions about the eLearning as well.

I think that pretty much brings me towards the end of what it is that I wanted to say. I'm going to pass back to Kellie. I think we've got a few questions in. So, Kellie, pass it back to you, please.

Kellie: Yeah. The first one here, Barry, is, "How regularly should equality and diversity training need to be completed?"

Barry: Yeah. Great question. Thank you to the person that sent that in. That's a difficult one to answer because there is no legislative provision that says training must be done at least in these particular training cycles. We really, I guess, just refer to a number of lawyers and say that most are saying that it really needs to be done every 18 months, preferably every 12 months. Some lawyers I've met have said you may get away with it if you're doing it every two years, but most seem to be saying it's every 12 months to 18 is what you need to be aiming for. Kellie, any more questions?

Kellie: Yeah. Just before I go to the last question, Barry, I know personally from taking some queries that some customers also would request if they have their own learning management system, do they have to use ours? I just want to clarify that point that no. We're very happy that if you have your own learning management system, that we can provide you with the link for their training to use on their system so they can run reports and check on their own employees in their own comfortable environment.

Best of both worlds—if you've never tried eLearning, if you don't have a learning management system and you'd like to use ours, then that's a service we provide along with a technical service and an admin service behind that.

Barry: Okay.

Kellie: I just wanted to clarify that. Also, there was a question, "How interactive is the training and do you have an example?" I think the best way to answer that is probably contact us, get the free trial part and you will be able to see yourself that it's very interactive. There are plenty of examples, different questions, different types of examples and that's really the best way of answering that question. Barry, I'm sure you maybe agree.

Barry: I might just add to that, Kellie, that a lot of the examples and scenarios have actually been taken from actual cases. So, we have really tried to take learning from these cases and presented that learning in the module to make it very, very real and to make sure that we really are on the money when it comes to this learning.

I think that's really important to know because my experience working as a lawyer was that it just seemed that there were various things that just caught out employers time and time again. So, what we've tried to do is to close down these gaps by actually training employees on these particular areas. One example I can give you is that very often an employee would try to say as a defence to her harassment issue, they'd say something like, "I was only having a laugh. I didn't actually mean to cause any offense to the particular person."

So, we have a number of scenarios that just illustrate that that is no defence and it's not only how you intend the conduct but how it's received by the person that is also taken into account. So, things like that that catch employees out very easily that we address in the module.

Kellie: Barry, the final question is, "How regularly is the training updated?"

Barry: The training will be updated on a very regular basis. Debbie can talk to you in terms of a package so that you'll do the first module and then there will be another module that will come out shortly after that when there is a need because of changes in legislation or important case law. So, the training is up to date. It includes a lot of important case scenarios and we think it really is top-quality training that we haven't seen bettered anywhere else.

Kellie: Great, Barry. I think that's all our questions answered today. Do you have anything else that you'd like to say?

Barry: I don't think so. We've had a lot of people in the webinar today. This is obviously a very topical area. I think a lot of employers are rightly concerned about the focus on harassment issues at the moment. I really do feel that the large numbers in the webinar this morning are probably a very good and healthy sign that a lot of people are taking this issue very seriously and are looking to make sure their housekeeping is as good as possible to make sure that harassment doesn't take place in the first instance and if it does, they are best place to be able to respond to it.

Kellie: Yeah. Okay. I think our 30 minutes are up. Thank you, everybody, for joining. There will be that post-webinar email that will go out with details about how to get your free-trial access and also a special offer on any online package as well. Thank you again for joining us and we hope you join us again soon.