In the wake of the Black Lives Matter demonstrations, there is increased momentum in addressing racial inequalities at work. But this is against a backdrop of significant and long-standing barriers for workers of black and minority ethnic heritage. For example, recent research by Business in the Community shows that only one and a half per cent of senior professional roles in the private sector are held by black people, despite making up three per cent of the UK population.
‘In any programme of change management involving employees, then it is important to take account of employment law,’ says Selwan Yousif, a Partner in the employment team with Hatten Wyatt Solicitors in Gravesend. ‘Although positive discrimination is prohibited, positive action is lawful and there is plenty employers can do to tackle inequality of all kinds and particularly racial equality.’
First steps for employers
It is important to recognise the problem and understand the prevalence of bias and the systemic barriers in the majority of workplaces. Fortunately, there are now many good books, online resources and research papers available for directors and managers to educate themselves, such as the McGregor-Smith review 'Race in the Workplace'. The Diversity Style Guide is a useful resource to understand the language of racism and equality.
You will need to analyse and understand the scale of the problem in your organisation. Just as you would invest in consultants to implement a new IT system or customer care training, it may be worthwhile investing in consultants to help you understand the true picture. You will need to bear in mind data protection issues when considering any analysis of personal data.
There are a range of metrics which can be used, but examples include:
- What does your equalities monitoring tell you about the diversity of your workforce, particularly in senior roles and who is applying?
- Do you have an ethnicity stay gap? Do your black or minority ethnic staff leave sooner than their white peers?
- Does your business have an ethnicity pay gap? The Office for National Statistics report ‘Ethnicity Pay Gaps in Britain: 2018’ highlights a pay gap of 21 per cent for employees in London.
The board needs to have a genuine and long-term commitment to improving diversity. Aside from the moral case, there is a strong business case for diversity and staff wellbeing resulting in increased productivity, lower staff turnover and fewer grievances.
Any staff who witness discrimination in the workplace, should feel confident to be able to raise the matter with their employer and be assured that the issue will be taken seriously.
What does the law say on discrimination?
The law recognises that racial discrimination is not always overt, and the discriminator may not even realise that their decision or behaviour is motivated by race. To establish discrimination under the Equality Act 2010, an employee must point to facts giving a first impression of discrimination. Having done this, it is then for the employer to show an adequate, non-discriminatory reason for its treatment of the employee.
Positive discrimination is unlawful
Positive discrimination is not permitted in the UK. This means that unless there is an occupational requirement, employers cannot recruit someone just because they have black or minority ethnic heritage. This means that recruitment quotas based on ethnicity are unlawful in the UK. If quotas were used, a potential applicant or unsuccessful applicant of the ‘wrong’ ethnicity could bring a claim for race discrimination.
On the other hand, positive action is lawful.
What is positive action?
Provided certain requirements are met, positive action is lawful and allows employers to take proportionate steps to address under-representation. The Equality and Human Rights Commission's Employment Code of Practice gives the example of reserving places on a management training course for employees from a particular ethnic group who are under-represented in senior roles.
When recruiting, the Equality Act 2010 allows employers to appoint a candidate from an under-represented ethnic group in a tie-breaker situation. The two candidates must be of equal merit. The employer must be able to show some evidence of under-representation, such as a simple review of the profile of the workforce.
Future developments in the law
In late 2018 and early 2019, the Government consulted on introducing ethnicity pay gap reporting. In response to a recent petition to Parliament, the Government said it would respond to the consultation by the end of the year. As it also highlighted difficulties in designing an appropriate methodology for ethnicity pay gap reporting, it seems unlikely that this will be mandatory any time soon.
What can we do?
The end goal is to create an environment where everyone can be their authentic selves at work, without any fear this will hinder progression or make them stand out.
There is no quick fix, and strategies will differ according to each organisation and the current culture. You may wish to consider some or all of the following practical steps to help you get there:
- Allocate appropriate resources, and do not expect a small number of black or minority ethnic employees to shoulder the burden of change management for the whole business.
- Carry out research, agree key performance indicators and set up equalities monitoring and reporting.
- Update policies to ensure that these are robust and ensure they are properly implemented.
- Organise training and workshops, especially for senior managers involved in recruitment and promotion, and include in induction for new recruits.
- Include improving or retaining diversity as performance objectives for senior staff – but beware the law of unintended consequences.
- Offer reverse mentoring for senior staff to help them understand the challenges faced by junior employees.
- Establish or participate in an inclusivity network and ensure that feedback from the network is listened to and acted on by senior management.
- Open up opportunities for work placements to a more diverse demographic by stopping unpaid internships and approach different schools, colleges, and universities.
- Incorporating ‘contextual recruitment’ in recruitment screening, which is a way to take into account the challenges of a disadvantaged background that an individual overcame to achieve their grades.
- Avoiding interview panels of just one manager to reduce the risk of bias.
- Ensure competencies, pay and promotion pathways are transparent.
- Build trust by ensuring allegations of racial bias are heard confidentially, believed, and acted upon.
How we can help
We can advise further on the legal issues around introducing steps to encourage diversity in your workforce and increasing equality of opportunity. We can also bolster your equalities and diversity policies, give training on preventing discrimination in the workplace and represent your business should you have to defend a claim of discrimination.
For further information, please contact Selwan in the employment law team on 01474 351199 or email firstname.lastname@example.org. Hatten Wyatt has offices in Gravesend, Maidstone, Chatham, Tenterden and Tonbridge.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.