Karen Holden dissects the complexities of employment law which is one of the fastest-evolving sections of UK legislation.
Having a diverse workforce has many advantages for a business. It’s especially useful if the company has a board of directors that is occupied by people from different backgrounds, cultures and gender. This will reflect real life in the UK today, and maybe also the company’s target audience and client base.
However, factors such as Covid-19, rising inflation and the cost of living crisis have, as predicted, exacerbated inequalities within society. Statistics show that certain employees have had to be released during the economic down turn. Decisions have had to be made over staff, depending on their age and current salaries. This places further pressure on both employees and employers alike.
Diversity and Inclusion (D&I) and the Economy
The last few years have been difficult for the UK economy and while some companies have grown rapidly, time will tell whether this will continue in the years ahead. Although the 2023 Budget appears to be less gloomy, regarding this year’s prospects, there are still many challenges ahead.
There was no immediate bounce back following lockdown, resulting in problems for many businesses and individuals who have struggled with costs. These included the paying back of loans with rising interest rates. There have also been supplier and consumer disruptions, and we are now starting to see redundancies too.
Against this background, it may be tempting for companies to disregard D&I. Some businesses have announced mass layoffs and have removed D&I roles as part of their cost cutting processes. This has led to a widening of the gap and a greater imbalance in the workforce. But anyone thinking of adopting such a policy needs to think again.
From a legal perspective, when letting staff go, it is essential for employers to comply with the Equality Act and its relevant legislation:
(A) Ensure they follow a fair consultation process;
(B) Avoid claims of discrimination based on gender, marital status, pregnancy, age etc;
(C) Continue to follow the contractual terms set out with staff;
(D) Make certain company policies are adhered to without discrimination.
This (A to D) needs to be reflected in all aspects of an employment relationship, from start to finish. This will include recruitment, pay and benefits, maternity or paternity, promotions and termination.
These can be difficult stages to navigate when employers are juggling with business needs, cash flow and employment rights. And any company which doesn’t follow the rules will be required to justify why they strayed from their responsibilities as laid down in UK law.
However …..
But the reality, as displayed in recent statistics, highlight how certain groups are more likely to be adversely affected by the recession than others. This often includes women, parents, disabled people, ethnic minorities and those from less affluent backgrounds.
Yet businesses should really embrace D&I during tough economic times. D&I plays a vital role in building a consistent and resilient culture within an organisation. Data shows that D&I helps to boost morale and productivity. It also reduces the number of employee concerns, harassment complaints, poor mental health and staff absences.
This means D&I can actually contribute to reducing costs and improving profitability. In return this can lead to greater loyalty and commitment from the staff. And therefore, in the long run, employers should be able to limit recruitment expenditure, redundancy pay outs and minimise the cost of upskilling its workforce.
However, to achieve and retain these many benefits, businesses will need to take action immediately to further D&I within their organisation. D&I should not be treated as merely a corporate box-ticking exercise.
Recent Cases
Higgs v Farmor’s School concerns a school employee who was dismissed for sharing posts on social media. Her posts criticised the LGBTQ community and she questioned the ‘relationship education’ syllabus at her son’s Church of England primary school in Gloucestershire. Mrs Higgs, a Christian, brought a claim before the Employment Tribunal (ET) for direct discrimination and harassment on the grounds of her religion and beliefs.
A key issue in this case was whether Mrs Higgs’s opinions were considered to be ‘protected beliefs’, as stipulated within the Equality Act. In 2020, the ET confirmed that they do but rejected the claim because it considered her dismissal was not on the grounds of her beliefs.
The judgement explained that ‘she might reasonably be perceived as holding beliefs that would not qualify for protection within the Equality Act.’ Mrs Higgs has appealed against this decision, including a claim on freedom of speech, and the judgement is expected soon. The case is expected to set an important precedent on the definition of protected beliefs, while balancing anti-discrimination against protecting freedom of speech.
A similar case is that of Bailey v Stonewall Equity Ltd. Ms Bailey is a barrister who posted tweets against Stonewall who she believes advocates both ‘trans extremism’ and ‘gender extremism.’
She says this adversely affects women’s and lesbian rights. Garden Court Chambers (GCC) sought advice from the Bar Council’s Ethics Committee on the issue, but did not send information provided by Ms Bailey. GCC later upheld Stonewall’s complaint against Ms Bailey and asked her to delete the tweets.
In response, Ms Bailey brought claims of direct discrimination, indirect discrimination and victimisation against GCC. She also claims that Stonewall has instructed (or attempted to instruct) GCC to discriminate against her.
The tribunal reported that Ms Bailey’s ‘gender critical’ belief is a protected belief under the Equality Act. As GCC failed to provide the Ethics Committee with full information, she succeeded in part of her claim for direct discrimination and victimisation against the GCC.
However, the tribunal rejected her claim against Stonewall which she had appealed in September 2022. This case highlights the importance of thorough investigations and maintaining records when dealing with matters relating to discrimination.
As such, employers need to be careful when they investigate and cite for termination. They must carefully document everything, ensuring transparency and complete disclosure. This is a particular area of employment law that is both progressive and continually evolving.
Promoting diversity and inclusion in the workplace
Employers should consider auditing their policies, contracts and systems. And it is essential they reflect on measures required to ensure a diverse and inclusive workplace:
- Keep up-to-date with regulatory developments and provide regular training to staff. Employers should work with experienced lawyers to provide legal updates on a regular basis. Ensure that staff members fully understand the relevant rules and guidance relating to D&I. This will help to avoid breaches and thus create a more open-minded and inclusive workplace environment. .
• Have clear and accurate policies in place. This is not only for compliance purposes but also for setting out specific D&I targets and an action plan. There are various benefits for achieving D&I but employers need to be truly committed to making this a reality. Businesses should therefore consult with expert advisors to create policies appropriate for their own organisations.
• Encourage staff engagement and initiatives. Employers should consider having staff-driven D&I schemes which may also reduce costs while ensuring greater efficiency. For example, D&I events can be hosted during workdays, with staff offered perks for participating.
• Organise forums so that staff members have the opportunity to seek advice and talk openly, and then provide feedback to employers.
• Employers need to carefully draft job descriptions. They must also choose wisely those who are selected to undertake the process of interviewing candidates. This should reflect the diversity of the company workforce.
Conclusion
In difficult economic times, employers need to ensure that they not only comply with anti-discrimination legislation, but should consider a strategy to embrace and promote D&I. They need to protect and promote themselves by focusing on the importance of D&I while, at the same time, attracting and retaining the best talent.
Adopt clear and accurate policies. This is not only for compliance purposes but also for setting out specific D&I targets.
References:
https://www.theguardian.com/uk-news/2023/mar/15/budget-2023-key-points
https://plus.lexis.com/api/permalink/2a252f7c-167b-417b-8b8f-4fe29122dcb4/?context=1001073
https://www.ft.com/content/50dd6bfd-e524-4e80-bd5d-1c38876460cf
https://www.judiciary.uk/wp-content/uploads/2022/07/Higgs-v-Farmors-School-judgment-050722.pdf
