There is a lot to digest, but four specific – and less obvious – points are worthy of particular focus for employers:
- Advice on the risk of bias when deploying algorithmic decision-making tools
- Promised guidance on positive action
- The creation of an Inclusion at Work Panel
- The position on ethnicity pay gap reporting
Racial bias in the British workplace:
The commitments specific to algorithmic decision-making include the inclusion of some steer on how to address potential racial bias in such decisions as part of the whitepaper on governing and regulating AI due this year; and advice from the Equality & Human Rights Commission on appropriate safeguards and the application of the Equality Act to AI tools.
Employers are becoming increasingly aware of the dangers that AI tools might pose in making discriminatory decisions.
However, many find it difficult to know what to do because of the lack of transparency in some of the most high-profile tools on the market.
The promised guidance should make the position clearer, and allow employers to harness the efficiencies these tools can produce without compromising on their values, and commitment to eradicate discrimination.
Positive action describes the steps that employers can take to help increase participation and advancement of those with protected characteristics (including workers from a minority ethnic background) in the workplace, without falling foul of anti-discrimination law.
Lawful positive action can be a powerful tool in addressing disparities in recruitment, retention and promotion in the workplace.
However, the legal test can be difficult to navigate, leaving well-meaning employers concerned about taking steps which might result in successful (and expensive) claims under the Equality Act.
Employers will be keeping a keen eye out for the promised guidance on positive action – which is to be created by December 2022 – and hoping that it supports them to bring forward innovative ideas to foster greater diversity and inclusiveness.
Inclusion at Work Panel
The government has also promised to create an Inclusion at Work Panel by Spring 2023.
It will carry out research and workplace trials and its mission is to "disseminate effective resources to help employers drive fairness across organisations".
While that may sound vague, it is hoped that this panel will help employers make smarter evidence-based decisions when implementing diversity and inclusiveness initiatives and training – to maximise the effect, rather than simply ticking a box.
Employers though would be well-advised not to await these resources and findings, and they can and should make progress with their own D&I agendas in the meantime.
Finally, there has been no shift on the government's position on mandatory ethnicity pay gap reporting; it will not be required by law, to the disappointment of many campaigners, D&I professionals and others.
The government will publish guidance to assist those who voluntarily report, which may help to achieve a level of consistency. In practice many employers have decided not to wait for guidance or law, and are pushing ahead with voluntary reporting as a pillar of their D&I strategies.
David Lorimer is director at Fieldfisher