Discrimination is nothing new but longevity makes it no less acceptable nor less distressing when it rears its head at work. Parliament has been slowly nudging forward the rights of certain demographics during the past 100 years, and when it comes to employment law the goal has been to move towards equality of opportunity. Eradicating every semblance of discrimination in the workplace may be an impossible dream but, beyond the legislation, if organisations can foster an inclusive environment it can help not only improve productivity, but also reduce the likelihood of damaging acts of discrimination and the legal risk they bring.
Leading from the top
One of the most important aspects of inclusion is buy-in and role model behaviour from the top. Senior management should be positively involved in driving forward and adopting corporate policies. A recent statistic from Stonewall claimed that 51% of trans people have hidden their identity at work for fear of discrimination. Many organisations – and their management – still come out with unconvincing rhetoric that discrimination does not exist in their workplace and there is no risk.
While Ministry of Justice statistics suggest a large reduction in the number of claims (the most recent employment tribunal award figures have the figure at 88,476 annual applications, down from a peak of 191,541 claims in 2012/13) the financial and reputational damage from a claim can still be disastrous. The highest award in the 2016/17 figures was £1,744,575.56 (awarded in an unfair dismissal claim) while the highest award in a discrimination case was £456,464.
Likewise, being splashed across the press with any hint of discrimination can be a PR nightmare and affect all aspects of an organisation, from sponsorships and recruitment to losing customers and boycotts.
It is a tall order to ask an organisation to create a workforce that is immune from individual prejudice, whether that manifests through clumsiness, misunderstanding or malice. However, that does not mean employers shouldn't attempt to uncover recruitment or company policies that exclude people, whether intentional or not. An unofficial preference for candidates from certain universities could potentially overlook those from more diverse backgrounds. A lack of flexible work may discourage people, as may a lack of LGBTQ+ credentials or even adequate facilities for disabled employees.
Organisations can often benefit from focus groups or committees to help support the business as well as management by raising general awareness. Such groups can help provide valuable professional and personal support to staff, while a mentoring or career development programme may help employees fulfil their potential as well as better co-ordinate responses or provide critical input on issues such as training, marketing materials and promotion opportunities. Often organisations may not know there is an issue until it is too late.
A diverse workforce will also mean diverse opinions. Informal contact with staff helps to assess how policies and procedures are operating. Internal training, communications, social events, terminology, management style, facilities and so on could all cause problems if not thought through. Often it is a lack of understanding or perception that causes issues to fester and opportunities to be missed.
A proactive approach to diversity in general adds fantastic dynamism to organisations. It can also be an important point of connection with clients and contacts so being engaged and enthusiastic is a win-win. It reduces the risk of a damaging, high-profile discrimination claim and can also boost the bottom line.
Many organisations have established or are looking at setting up diversity charters for all contacts and panel firms. Clients regularly ask about businesses’ diversity credentials. Likewise, hosting bespoke client events or marking occasions such as Pride all contribute to a better place to work.
English law offers a great deal of protection to workers when it comes to discrimination. Ensuring that your organisation is aware and engaged not only reduces the chance of an expensive court case, it can also create a proactive and positive work environment.
Jules Quinn is a partner and Krishna Omkar an associate at King & Spalding. Omkar is also Stonewall’s Gay Role Model of the Year 2018