A combination of legislative pressure and cultural change has been the driver for progressing workplace diversity and inclusion. The briefest summary of the legislative obligations on employers (below) is a worthy reminder of the increased protection for workers to promote inclusion. The next big changes though are more likely to be achieved through the external pressure of regulators, clients and interested groups. Article by Emma Bartlett, Partner on behalf of Charles Russell Speechlys LLP
Legislation to promote a more inclusive workforce started in the 70’s with the Equal Pay Act 1970 and anti-discrimination legislation for sex and race following the European Equal Treatment and Equal Pay Directives. Some 15 years later, protection for disabled workers prohibited a range of disability discrimination and introduced, for the first time, obligations to take positive steps with the duty to make reasonable adjustments.
However, the most prolific legislative changes have occurred in the last 15 years with protection of fixed term and part time workers, and unlawful discrimination extending to a variety of protected characteristics including gender reassignment, sexual orientation, religion and belief, maternity and pregnancy, marriage and civil partnership and age (which are now brought together under the Equality Act 2010).
The four main types of unlawful discrimination include direct, indirect, harassment and victimisation. Direct discrimination cannot be justified, except in age claims. Indirect discrimination may be objectively justifiable. Instructing, causing, inducing and knowingly helping unlawful acts of discrimination, discrimination on the basis of someone’s perceived protected characteristic or because of their association with someone who has a protected characteristic are additional breaches of the Equality Act. Disability has additional, unique types of discrimination; discrimination arising out of disability and failure to make reasonable adjustments.
While there is no statutory right to flexible working, there has been a statutory right to request for carers of relatives and children of certain ages since 1999. This right was extended to all employees with at least six months service in 2014, and the rigidity of the original flexible working request process has been removed, giving more control to employers over the process.
Compulsory equal pay audits have not been introduced, and are unlikely to. However, employment tribunals have been empowered since October 2014 to order employers found in breach of equal pay legislation (now part of the Equality Act 2010) to carry out equal pay audits in certain circumstances.
There is a pack of family friendly rights, initially only maternity pay and leave (which have increased significantly to 39 weeks’ pay and 52 weeks leave), which now include adoption leave and pay (to be extended in April 2015 to adoptions from outside the UK), paid and unpaid paternity leave, unpaid parental leave, time off for dependents in an emergency (unpaid) and, from April 2015, the introduction of shared parental leave. The right to attend certain ante natal appointments was extended to cover both prospective parents in December 2014. Child-care vouchers and the proposed tax-free childcare scheme (expected for Autumn 2015), is designed to support parents returning to work. The focus has moved away from enabling mothers to take paid time out to care for children and protection of their jobs when returning to work, to supporting both parents to share these rights. Shared parental leave is set to achieve this, recognising a shift in sharing child care responsibilities, which the underused additional paternity leave never achieved (and as such will be abolished in April 2015).
While workplace diversity has improved; the pay gap has narrowed, women and ethnic minorities more commonly hold senior positions in business, it’s not enough. There are sufficient credible reports demonstrating how diversity and inclusion improves the bottom line, leads to improved creativity and a better approach to risk. Ultimately, it impacts improved business development, assists recruitment and businesses mirror their diverse customer base.
Employers are now promoting a cultural change, which legislation alone cannot achieve. The measures include investment in dedicated diversity managers with senior management support, diversity committees and networks, and equal opportunity policies activated through training (most recently including unconscious bias and mental health awareness education). Also, enhancements of the family friendly benefits are useful to make employees feel cared for (and to retain talent), but limited.
Networks, however, can have a big impact on improving employee wellbeing. One side effect, and often the primary driver, is the creation of business opportunities. The contribution of networks in the workplace is multi-faceted. They are seen as having an important functional role in policy making; employers who ask established networks to comment on workplace policies ensure that needs specific to certain employee groups are taken into account. Networks are important to building a sense of community and have a perceived supportive effect, providing in theory at least, an opportunity for groups of employees to feel they are able to raise issue specific to that group of which the employer may be unaware and / or need to address. It is rare for a network to result in a web of discriminatory behaviour, but the existence of the network demonstrates the seriousness of the employer’s approach to inclusion.
Employers support networks by providing space, communication tools, time and budget. Women’s networks are common; LGBT and disability networks are growing. LGBT networks can suffer from disproportionate membership and issues of privacy and confidentiality. There is a need to ensure this significant proportion of the workforce feels included. It’s a backward step for an individual to feel unable to be themselves at work, because of fear of discriminatory treatment if their sexuality becomes known. This can also lead to confidence and health issues.
When the LGBT network is quiet, it’s presence still signifies the employer’s commitment to an open and diverse environment. There is no doubt networks are a way forward. Success can be measured by employee wellbeing (e.g. surveys, grievances, heath issues) and connections within the industry and clients.