The tragic death of yet another Black American, George Floyd, as a result of police brutality, has led to mass protests around the world against the systemic racism and continued racial inequalities faced by people of the Black diaspora.
This growing, albeit delayed, global awareness has rightly encouraged many people from outside the Black community to learn more and understand how to be better allies, drive effective change, and support the movement going forward. The workplace, and more specifically, the way in which employers tackle this issue, will play a critical role in effecting meaningful change.
In this article we take a look at how recent events casting a spotlight on systemic racial discrimination may affect UK employment law and practice going forward, and best practices for employers in the continued fight against systemic racism, racial inequality and discrimination in the workplace.
A reminder of the law
The Equality Act 2010 ("EQA") makes it unlawful to discriminate against employees, job seekers, and trainees because of the protected characteristic of "race". Under section 9 of the EQA, "race" includes colour, nationality, and ethnic or national origins. This broad definition captures multiple racial identities including, but by no means limited to, Black, Black African descent, Black African-Caribbean, and British African. The prohibited forms of discrimination comprise:
- direct discrimination: less favourable treatment because of race;
- indirect discrimination: where a provision, criterion or practice places persons of one race at a particular disadvantage when compared to those who are not of that race, and that PCP cannot be justified as a proportionate means of achieving a legitimate aim;
- harassment: unwanted conduct related to race which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual; and
- ·victimisation: less favourable treatment of an individual because they have made a complaint about race discrimination or have helped someone else to make a complaint about race discrimination.
The practical impact of Black Lives Matter: some thoughts
The existing legal protections against race discrimination at work are generally well understood by most employers. However the growing consciousness of pervasive and systemic discrimination against Black people, and of race discrimination more generally against minority ethnic groups, is likely to prompt workers and employers alike to look again at their roles in helping to eliminating this type of discrimination.
Some possible practical effects of this increased consciousness might include:
1. Growing confidence and empowerment
The recent global protests against racial inequality and systemic racism are likely to empower and inspire those who may not previously have had the confidence to confront racist behaviour and actions (overt or covert) in the workplace, perhaps out of fear that their concerns would not be taken seriously or that they would not be believed. This increased confidence may lead to an increase in the number of employees vocalising their grievances in the workplace and/or in the employment tribunal. Employers will need to be properly equipped to deal with this, and training for those in HR and management who are tasked with handling such complaints may be necessary (see further below).
2. Changing attitudes and understanding of the concept of discrimination
It is possible the growing awareness of the types of behaviour that may be offensive to Black people and those in other racial minorities could impact the employment tribunals' interpretation of the EQA, by widening the scope of conduct that may be held by a tribunal to be discriminatory. For example, incidents where an employee might previously have been classed as "overreacting" to "just an innocent remark", might now be more likely to be held to have crossed the line into unlawful conduct. For example, when does the accidental regular mispronouncing of a "foreign sounding name" cross the line between laziness to subtle unconscious racism perpetuating workplace racial inequality that deserves to be penalised? The widening understanding of how individuals in the Black community might perceive acts or omissions that are rooted in systemic racism and ingrained attitudes (rather than overt or "conscious" racism) may mean that employers and the employment tribunals take a firmer approach, especially in relation to more subtle and unconscious forms of racism in the workplace.
3. Settlement agreements
We have previously seen the #MeToo movement sparking a discussion about the use and perceived abuse of settlement agreements in silencing victims of sexual harassment. Going forward, there may also be a discussion of the use of settlement agreements in cases of race discrimination, and whether it is appropriate to silence victims of such discrimination through the use of settlement agreements which purport to restrict their ability to disclose information about their experiences. Following #MeToo, many employers will have reviewed their use of settlement agreements, and of the confidentiality obligations included in those agreements. Although settlement agreements provide a useful tool for employers to avoid protracted and expensive legal proceedings, it may be necessary to look again at the way in which they use such agreements, and whether their use disguises particular issues with the treatment of Black employees or those from other minorities. There is certainly an argument that it is only when workplaces are open and transparent about the racial inequality and discrimination in their workplace that real and effective change will occur.
10 employer best practices to support racial equality in the workplace
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 we consider may be important going forward:
1. 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 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 under section 159 of the EQA, (i) the individual being treated more positively 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 Government Equalities Office both have useful guidance on these matters.
2. Positive Action (2)
As well as section 159 EQA, which relates only to recruitment and promotion, there is 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 should consider 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, and should therefore be seriously considered by the numerous businesses in the UK with continuing problems of under-representation.
3. 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 within which workers feel able to discuss their challenges openly. Employers should consider whether management is sufficiently engaged with these groups, and whether they could be further supported through senior engagement and greater resources.
4. 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. Employers should consider how effective their existing workplace training is to address these types of issue; now may be a good time to review the content and the provider.
5. Implementing Ethnicity pay gap reporting
I was part of the working party for the Employment Lawyers Association response to the government consultation on mandatory ethnicity pay gap reporting in 2019 (see the response from ELA). Although there are clear challenges and difficulties with how such reporting may occur (including the huge variety of ways in which people self-identify), there was a clear consensus amongst those in the working party that ethnicity pay gap reporting would be a valuable tool to tackle racial inequality in the workplace.
The government's consultation closed in January 2019, but no further action has yet been taken.
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 for debate in Parliament, and this renewed public and political pressure may push the issue further up the government's agenda.
Employers, particularly 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 help management to understand the steps it may need to take in order to tackle racial inequality.
6. 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 they can support their Black employees and those from other racial minorities (and their allies) if they request time off in these circumstances.
7. Supporting employees' mental health
This has been an incredibly difficult time for many people in the Black community. Recent events may have triggered painful memories of experiences with discrimination, so 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.
8. Recruitment agencies who recruit diverse talent
This may be a good time for employers to consider whether the recruitment agencies they use have a good track record of finding 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, and this could be an effective way for employers to help create equality of opportunity for roles in their workforce.
9. 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 truly 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 be quick to act 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, and employers should not delay in carrying out a proper investigation and taking 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.
10. 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 they can explore the difficult conversations about race, the workplace and the experiences of Black and minority race colleagues. It is only when these difficult conversations take place that they can be addressed head on.
However, the burden of starting and continuing such conversations, and of making the necessary changes, should not be placed entirely on Black and minority race groups in the workforce. Black people and those from racial minorities should not be made responsible for pushing for change and constantly brainstorming ideas and initiatives to solve a problem which affects all of us, and is our collective responsibility, as a society, to solve.
A Final Note
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.