How can employers be part of the change to create racial equality for minorities and break down the systemic racism that still affects Black people?
Here are some of the legal and practical steps for employers to consider going forward:
Positive Action (1)
Although “positive” discrimination (in the sense of treating a person more favourably than another because of a protected characteristic) is illegal in the UK, section 159 of the Equality Act 2010 (EQA) does allow for positive action in recruitment or promotion decisions.
This provision allows an employer to treat an applicant or employee who is Black (or who has any other protected characteristic) more favourably in connection with recruitment or promotion than someone who is “as qualified” for the role but who does not have the relevant protected characteristic.
An employer must take a case-by-case approach to positive action. They must reasonably think that people with the relevant protected characteristic suffer a disadvantage or are under-represented in a way that is connected to their protected characteristic.
In order for such positive action to be lawful, (i) the individual being treated more favourably must be “as qualified” as the other person or persons under consideration; (ii) the employer should not have a policy of treating people who share such a characteristic more favourably; and (iii) taking such positive action must be a proportionate means of achieving the aim of overcoming or minimising the disadvantage and under-representation.
The continuing lack of racial diversity in many workplaces, particularly in senior roles, may encourage employers to more confidently take advantage of this provision to try to reduce the under-representation of certain racial groups within their workforce.
It will be important for employers to ensure they have carefully evaluated the qualifications of the relevant candidates and have clear evidence of the disadvantage / under-representation of the relevant group. The Equality and Human Rights Commission and the Government Equalities Office both have useful guidance on these matters.
Positive Action (2)
As well as section 159 EQA, which relates only to recruitment and promotion, there is also a “general” positive action provision in section 158 of the EQA which makes it lawful for an employer to take positive action in encouraging people from disadvantaged or under-represented groups to participate in any “activity”.
This is clearly very broad, but in the employment context may include, for example, encouraging those from particular groups to apply for work. Employers may therefore wish to consider, for example, whether this enables them to target particular universities with a more diverse talent pool, or to implement mentoring programmes or run training courses for minority students. The effect of this type of positive action on access and equality of opportunity can be profound. It should therefore be seriously considered by businesses in the UK as a means of addressing the under-representation of certain minority groups in their workforce.
Race minority support / networking groups
Black and minority groups formed within workplaces have provided much support for Black colleagues during the past few weeks and months. They have been particularly effective in creating a supportive unit where workers feel able to discuss their challenges openly. Employers should consider whether their management is sufficiently engaged with these groups, and whether they could be further supported through senior engagement and greater resources.
A refocused workplace training programme
Most employers have long recognised the benefit of regular training about diversity, inclusion and respect in the workplace. Our experience of delivering “Respect in the Workplace” training shows that employees are well able to spot more overt forms of racism. However, microaggressions and unconscious bias can be more difficult to identify and more pervasive. It is worth reviewing how effective your existing workplace training is to address these types of issues. Now may be a good time to review the content and perhaps also the provider.
Implementing Ethnicity pay gap reporting
In the wake of the recent Black Lives Matter protests, there have been renewed calls for ethnicity pay gap reporting to become mandatory. Whilst the Government remains focussed on dealing with the COVID-19 pandemic and Brexit, a petition to introduce mandatory pay gap reporting has now surpassed the 100,000 signature target needed for a debate in Parliament, so this renewed public and political pressure may well help push the issue further up the Government’s agenda.
Larger organisations may wish to consider implementing voluntary ethnicity pay gap reporting now, instead of waiting to see if it will be made mandatory in the future. The data gathered may help to facilitate the difficult conversations referred to below and also help management to understand the steps it may need to take in order to tackle racial inequality.
Supporting employees who request time off to protest
Protests are an empowering and effective way to demand change. Furat Ashraf recently explored this (albeit in a very different context) in her article about dealing with employee activism and employer best practice. Employers should consider how best to support Black employees and those from other racial minorities (and their allies) if they request time off in these circumstances.
Supporting employees’ mental health
2020 has been an incredibly difficult time for many people in the Black community. Recent events may even have triggered painful memories of discriminatory experiences. Employers should be sensitive to this, and treat requests for time off for mental health reasons with sympathy and sensitivity. Support should be provided through mental health workplace support programmes and HR assistance.
Use recruitment agencies who recruit diverse talent
Employers should consider whether the recruitment agencies they use find candidates from diverse backgrounds (and whether the recruitment agency is a diverse employer itself). There are recruitment agencies that specialise in searching for diverse talent. This could be an effective way for employers to help create equality of opportunity for roles in their workforce.
Acting quickly to address allegations of racism, including on social media platforms
Racism against Black people, and minority racial groups generally, is not a new issue in the world or in the workplace. However, the internet has exposed, more than ever, that egregious acts of racism remain commonplace, and many people continue to hold, and express, racist views and attitudes. Social media has enabled racist material to be uploaded, accessed and shared easily.
Employers should act quickly if they become aware that staff have been involved in putting racist material online, sharing such material, or appearing to hold or condone racist views or conduct. It is important that workplace codes of conduct and disciplinary procedures make clear that this type of conduct is prohibited. Employers should promptly carryout a proper investigation and take appropriate action. Failure to act quickly and decisively in response to discriminatory conduct risks damage to both employee relations and the reputation of the organisation.
Creating a safe environment for difficult conversations
Significant progress has been made towards racial equality in the workplace over the last few decades. However, it is also clear that there is still a long way to go. In order to effect meaningful change, employers should create safe environments where the difficult conversations about race, the workplace and the experiences of Black and minority race colleagues can be explored. It is only when these difficult conversations take place that the issues discussed can be addressed head on.
Starting and continuing such conversations, and making the necessary changes in the workforce, should be a collaborative effort between the Black and minority race groups and the employer. Black people and those from racial minorities should not be made solely responsible for driving change and brainstorming ideas and initiatives to solve a problem which affects the entire workforce. After all, it is our collective responsibility, as a society, to solve this issue.
Key takeaway: there are an abundance of resources available and best practices for employers to strive towards in breaking down racial inequality and systemic racism in the workplace. Even small steps can have helpful consequences, but doing nothing at all is not an option.
The full version of this article was originally published by Bird & Bird in June 2020. If you have any questions around the aforementioned points, please contact Anish Pathak, Elizabeth Lang, Alison Dixon, Ian Hunter or Tim Spillane.