Inclusive Employers (“IE”) is a membership organisation for “employers who want to build inclusive workplaces”, which they define as “workplaces where all employees are valued and contribute towards the success of the organisation”. For 2020’s National Inclusion Week, running from 28 September to 4 October, IE has developed the theme “Each One, Reach One.” This week sets out to celebrate everyday inclusion in all its forms.
As expert advisers to employers we want to add to the conversation in this important week by highlighting issues that lead to legal risk for employers. In this alert we highlight the legal imperative to build inclusive workplaces that embed equality and diversity into all their initiatives, internal practices and external business relationships.
Equality Act considerations
• The Equality Act 2010 prohibits direct and indirect discrimination, harassment and victimisation in the workplace on the grounds of any of the protected characteristics (covering age, disability, race, religion, gender and sexual orientation among others). Under the Equality Act, businesses can be held vicariously liable for any discriminatory actions by their employees that are carried out “in the course of employment”. An inclusive workplace culture will massively reduce the risks of such claims – but it is not always straightforward for employers; for example where an attempt to be inclusive of one group results in the potential exclusion of another, owing to the two groups’ conflicting values. This is illustrated by an ongoing tribunal case, involving the dismissal of a Christian pastoral teacher for posting comments on social media opposing the school’s plans to teach about LGBT relationships.
• These are incredibly complex issues which are being considered by employment judges as the law develops and employers should ensure that they are, as far as possible, inclusive to all, and should take legal advice prior to making decisions which may not be perceived as fair (even if well-intended).
Bullying and unfair treatment
• Employers should be mindful of the potential claims even where there is no protected characteristic linked to non-inclusive conduct. Employees can raise grievances and threaten or bring claims for unfair or constructive dismissal in relation to bullying behaviour that undermines their employment. ACAS defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” In extreme cases, there may be a risk of a personal injury claim, and employees may also consider bringing a claim under the Protection from Harassment Act 1997.
Impact on employee wellbeing
• Discrimination, harassment and bullying, or more generally, a lack of inclusion in the workplace, can all impact an individual’s wellbeing and possibly create or perpetuate mental health issues in the workplace. This could result in potential breaches of health and safety legislation, and, where a mental health condition has a long-term effect on an employee’s day-to -day activity, it may be considered a disability under the Equality Act, triggering an employer’s duty to make reasonable adjustments and the possible risk of discrimination claims.
Equal pay / gender pay gap
• Equal pay legislation in the UK requires men and women in the same employment performing equal work to receive equal pay, unless any difference in pay can be justified. Employers are at risk of expensive employment tribunal claims and long-term reputational damage if they are in breach. Employers with 250+ employees in the UK must publish data showing the percentage difference between the average earnings for men and women in their organisation – and although enforcement of the gender pay gap reporting deadlines for the 2019/20 reporting year have been suspended because of the COVID-19 pandemic – the gender pay gap is a statistic that potential hires are well aware of as it can highlight a lack of inclusion and drive talent away if they perceive that the organisation has a cavalier approach to equality and inclusion and is slow to adapt and change.
Inclusion is a business imperative
In short there are multiple and real legal risks associated with an employer’s failure to build an inclusive workplace which values all employees and their contributions. But this is far from the only – or main – reason why employers should be concerned with diversity and inclusion, as there are strong moral and (well-evidenced) business imperatives why UK employers should integrate it into their long term strategy.
How should it be done? In the spirit of this week’s theme of “Each One, Reach One” – which is about connecting and inspiring each other to make inclusion an everyday reality – we wanted to share one of our recent initiatives: our first virtual internships with three undergraduates. In getting feedback from them at the end of a busy week our Managing Partner, Clare Murray, commented, “I have learned so much from them.” This is just one example of why inclusion helps businesses to grow in their thinking and prevents them from stagnating.
We are passionate about inclusion, equality and diversity and are involved daily in training and advising in these areas. We believe that those businesses which thrive during the pandemic and beyond will be those who manage to embrace inclusion. We would love to hear about your most enjoyable, effective, and successful initiative for reaching those (such as our “virtual interns”) who might otherwise not have been reached.
Our firm has extensive experience in advising employers and senior executives on issues of inclusivity, equality and discrimination. If you would like to discuss any of these issues further, or for guidance on your specific rights and responsibilities, please contact Merrill April (Partner) or Harriet Riddick (Associate), both of whom specialise in multi-national employment and partnership issues for partnerships and multi-national employers, senior executives and individual partners.