Legal

How should employers handle discrimination?

1 Dec 2020 By Lucy Sorell

The EHRC’s report on antisemitism in the Labour Party is a reminder to organisations of the importance of properly investigating accusations of prejudice, says Lucy Sorell

On 29 October 2020, the Equality and Human Rights Commission (EHRC) published a report into allegations of antisemitism in the Labour Party, following years of complaints by employees and members. The Labour Party is only the second political party – after the British National Party – to be investigated by the EHRC. 

The report will no doubt be relevant evidence for any courts or tribunals hearing claims from individuals who consider they may have been treated unfavourably on religious grounds. However, it also contains a number of important reminders for employers. In particular, it emphasises that failure to take seriously or to properly investigate allegations of harassment can in itself be discriminatory, and will be taken as seriously as the allegations themselves. 

This is a point that was echoed in the recent case of Lewis v Network Rail, in which a failure to investigate an allegation of a racial slur was held to constitute harassment. Robust, clear and consistently applied processes are fundamental to effective investigation and sanctioning; the report took an extremely dim view of the political intervention in antisemitism complaints. While this was perhaps a feature unique to the political environment, the overriding message is that investigative procedures must be impartial and immune from manipulation of any kind.  

In light of these principles, employers must pay particular attention to the following when running an investigation into discrimination allegations: 

  • Ensuring impartiality. Too often grievance managers or investigators are not far enough removed from the matter at hand, or are perceived not to be, which can be equally damaging.
  • Not taking evidence at face value without investigating. In a culture where discrimination is allowed to flourish, digging deeper is essential as important evidence may be suppressed and individuals may be afraid to speak up.
  • Not allowing personal views to cloud findings, which could be a risk in organisations where there is a sufficiently consistent subscription to particular beliefs or values so that they become ingrained into the culture.
  • Paying attention to consistency, both in outcome and the way the process is run. 

The report also observed that the culture of the Labour Party allowed discrimination to continue, which was partly down to party employees having lost confidence in its internal procedures and senior figures seeming not to take antisemitism seriously. The lesson is that a healthy culture that fosters diversity is key to avoiding discrimination. Such cultures can be promoted in the following ways:

  • Clear messaging from the top that discrimination is not tolerated in any form, even forms that may appear harmless to some.
  • Genuine respect for differences of opinion and belief, which might be expressed in the form of actively seeking different views, or asking every single member of a meeting to contribute.
  • Making the drive for equality the responsibility of every member of the organisation, rather than something that must be driven forward by minorities.
  • Actively seeking to attract, recruit, promote and retain a diverse workforce, rather than adopting a passively non-discriminatory attitude.

Overall, the ‘day of shame’ for the Labour Party ought to have been a day of reflection for many employers. The report underlines that making a commitment to zero tolerance of discrimination of any kind is not enough; this must be backed up by policies that have been stress-tested and actually work, and the active desire to foster a genuinely inclusive culture.  

Lucy Sorrell is a senior associate in the employment team at Kemp Little 

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