Legal

Why employers should support diversity in the workplace

13 Feb 2020 By Helena Wheeler

The moral case for continually striving for improved inclusion and diversity within our organisations is clear. Helena Wheeler explains what that means from a business perspective

Successive McKinsey & Co reports have highlighted how more diverse companies were better able to attract top talent and improve their customer orientation, employee satisfaction, and decision making.

This is because an inclusive environment can foster innovation, reduce staff turnover and limit unlawful discrimination. Further research has also shown a correlation between gender, ethnic and cultural diversity and financial performance.

With the benefits clear, why are many organisations still so far from being truly diverse?  According to the McKinsey research, companies feel that improving the representation of diverse talent was a “challenging goal”. So how can it be achieved?  

Rolling out the right policies, strategy and culture

Excellent learning and development policies and procedures are a good start towards employees feeling inclusive, but it is also important to continually review the culture of an organisation and consider how it affects particular groups.

Setting an inclusion and diversity strategy can help provide focus for related training that is used to educate staff and ensure a strong culture runs throughout the organisation – and that instances of workplace bullying, unlawful harassment or discrimination are all avoided. 

Fostering a diverse, inclusive culture requires a shift in mindset, with senior leaders in an important position as role models for the rest of the business.

Recruiting diverse talent

Putting careful thought into where, when and how positions are advertised externally, to reach the broadest possible audience and importantly, not to focus too much on – or exclude – any particular group is essential.

Discrimination, victimisation or harassment against a job applicant or employee is unlawful under the Equality Act 2010, which states that an employer must not discriminate in the arrangements it makes for deciding whom to offer employment to – for example, when and where interviews are held, and the format and content of application forms and advertisements.  

Providing access to promotions, perks and benefits

Additionally, the Equality Act underlines that an employer must not discriminate against its employees in the way it affords access to – or by not affording access to – opportunities for promotion, transfer or training, or for receiving any other benefit, facility and service.

So, it is important to make professional development and perks accessible to all in every organisation.

For example, a great way to do this is for employers to ensure that training sessions are structured to get everyone involved and that an environment exists where people can be themselves and put forward ideas.

Benefits, bonuses and promotions should be accessible and achievable to everyone too – as well as having robust and objective assessment processes, to avoid any unconscious bias which may affect their award.

Preventing unconscious bias

According to Acas, a person may be drawn to someone with the same religion, or who is the same ethnicity as them. However, where unconscious bias is against a protected characteristic, it can lead to unlawful discrimination.

Training to prevent this form of learned stereotype can provide people with the right awareness of their own preconceived ideas, covering different groups and understanding as to how these behaviours can affect decision-making and interactions.

Such sessions can challenge managers to question themselves on how they promote people, who gets allocated the work, how they recruit, who they recruit and where from.

It’s important for employers to work alongside their employees, to provide an inclusive environment that’s not only lawful but which offers everyone within it the same level of opportunities.

Getting it wrong

The business and ethical cases for supporting diversity in the workplace are clear, but the legal risks of getting it wrong are equally compelling.   

The Equality Act prohibits direct discrimination, indirect discrimination, harassment and victimisation in the workplace on the grounds of any of the protected characteristic. There is an additional duty to make reasonable adjustments for disabled employees and job applicants.

Employers are liable for anything done by an employee in the course of their employment – even if they didn’t know about the act. An employee can also potentially argue that an employer’s inaction or failure to adequately deal with or protect the employee from harassment by a third party may also be unlawful.

A successful tribunal claim can lead to compensation, recommendations as to what steps the employer should take to reduce or reverse the adverse effect of discrimination, and/or a declaration of the rights of the parties.

In cases of unintentional indirect discrimination, the tribunal should consider whether making a declaration or recommendation would be enough; however, compensation is nearly always awarded in successful discrimination cases. 

Compensation can be awarded for financial losses – including loss of earnings, pension, benefits – and non-financial losses such as injury to feelings, personal injury and aggravated damages. Compensation should put the claimant back in the position they would have been if the discrimination had not occurred.

Significantly, there is no upper limit on the amount of compensation that can be awarded in discrimination cases. Compensation can be awarded not just against the employer, but also any individuals – such as colleagues or managers – who have been named as respondents. 

Helena Wheeler is a senior employment lawyer at ESP Law

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