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Race discrimination is a notoriously challenging issue for employers to deal with, and difficult to defend, but by taking the right approach, employers can support their staff, improve diversity and satisfy the changing expectations of regulators, investors, employees, job candidates and clients.
In this episode, we’re joined by Kanika Kitchlu-Connolly, co-chair of TLT’s BAME network, to discuss:
Our news update covers fire and rehire practices and the rights of agency staff.
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Hello, and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner in TLT's Glasgow office, and today I'm joined by Jane Wallenstein, a senior associate in our Bristol office.
And Kanika Kitchlu-Connolly, a partner in our banking and restructuring team and also co-chair of TLT's BAME network.
Now, today we're talking about race discrimination in the workplace – from how the issues are evolving, to the ways this can get really complicated for employers and, of course, the role of networks, data and other approaches to creating a positive working environment for all. Before we get started, we wanted to quickly touch on a couple of recent cases, as we have done in the past.
Yes. And the first case is really quite straightforward, but with a really important takeaway. So it's the case brought by the trade union Usdaw against Tesco, and that concerned the firing and rehiring of employees on new contracts, but minus a significant uplift in their pay, which had previously been collectively agreed with the union. And Tesco had agreed that it would remain in place for as long as the relevant employees were employed and that it would not be negotiated away.
Usdaw won its case, and there was some initial concern amongst employment lawyers that this might put the nail in the coffin in terms of the fire and rehire tactic. The general view seems to be that the floodgates are unlikely to open as a result of the decision. What employers might take away, though, is to think twice before expressing contractual entitlements as permanent or guaranteed.
As a side note, while the government has now said it has no intention of legislating to curb or reduce the use of firing and rehiring to force through contractual changes, Acas did update its guidance in November. So, that's worth a look if you're considering doing this.
I think it's very topical, isn't it, Jane, and an area we're all needing to keep under review and to update listeners on, given the very recent behaviours of P&O Ferries, where they appear on the face of it to have dismissed large numbers of staff with the aim of replacing them with agency workers. It's a very emotive issue and a surprising development, and one that may well lead to an increased focus on changing the law in this area.
In some more reassuring news for employers, in the case of Angard Staffing Solutions v Kocur, the court of appeal has held that on the rights that agency staff have against the organisations that hire them, they're entitled to be informed of new job vacancies that come up, but this doesn't extend to a right to apply and be considered for vacancies.
Now onto our main topic. I've actually been wanting to cover this for some time, and whilst it's been at the forefront of all of our minds over the last couple of years, we're still seeing the ripple effects of things like the Black Lives Matter movement and new ways in which it's impacting employers and HR and legal teams. It's obviously a really important topic in our everyday lives and in the work context, and the cases I see are really quite complex and quite highly charged emotionally. And employers really struggle to know how to navigate some of the issues that come up.
I'd agree with that, Jonathan. Talking about these issues and tackling them head-on is a really important part of ESG – so environmental, social, governance agendas across all businesses. And I think more and more businesses and their leaders are being asked to demonstrate those ESG credentials, whether it's in the context of pitching for work, recruitment or simply ensuring that they have the right core values as a business. I don't think businesses can claim to have strong ESG values if they aren't tackling important societal issues like race equality, inclusivity and discrimination.
Another reason why we need to talk about this is, I think there's maybe a disconnect between what employers think they should be doing from a legal point of view and what society now expects of them, and, by extension, what their staff job candidates and other stakeholders expect to see. Many employers are finding that in the ongoing battle for talent and in seeking to recruit and retain the best staff, that employees have expectations beyond basic training on equalities. They want to see that their employer really embeds these values and brings them to life in the organisation.
Oh, definitely. And as you know, this is great timing for me because we've just finished our year-long programme of events that we've been running internally on race and racism in the workplace. And the feedback, I have to say, has been phenomenal. So there's lots from that perspective that I can share – from my own experiences but also what some of the external speakers we've had in have said.
I think you're right though, Jane, while overt or direct racism is fortunately pretty rare, the extent of the barriers and challenges faced by people who are at most risk of race discrimination is only now really coming into sharp focus and landing on people's agendas for discussion. I think that writing an equalities policy, which then just sits in a draw gathering dust – or organising, say, a one-off discrimination or unconscious bias training session – it's just not good enough anymore and there needs to be a lot more that sits behind that and that should be done.
I mean, pleasingly, I think there are now stronger allies at work and in society more generally for people at risk of race discrimination, to come together and find support. So there's a growing awareness of the role everyone's playing in moving the dial on the issues faced by ethnic minorities in the workplace, which is also linked to a higher, more nuanced expectation of employers and what they should be doing in this space.
I think we've also seen this being brought to the fore by regulators like the Financial Conduct Authority. The FCA made it clear in 2021 that it will be focusing on diversity in financial services. And it's actually considering the introduction of a requirement for companies that wish to list in the UK to meet diversity measures, as well as adding another question to its five conduct questions regarding diversity.
And investors are also flexing their muscles. Legal & General Investment Management, which is actually the UK's largest fund manager, has warned firms that there will be “voting and investment consequences”, as they describe it, for companies that fail to diversify their senior leadership team this year.
Picking up on that point about every employer needing to keep up with the way things are changing, there's been some talk of the government changing equalities law and changing the Equality Act 2010, and the way in which discrimination protections work. So you'll be familiar with the protected characteristics at the moment, and there is a suggestion of shifting away from that, which sometimes leads to lots of satellite litigation on complex questions around racial identity, for example. And there may be a movement towards something else but, of course, we're not quite sure what that looks like yet and it’s one we will need to keep an eye on. The reason why the government has said this is that it feels the current system leads to socioeconomic status and geographical inequality sometimes being overlooked, and that's really interesting in the context of this episode because those are very closely linked to race. And so we may yet see quite a seismic change in the whole topic.
And I think, Jonathan, just on that point about seismic change, one of the biggest shifts has been so many more organisations publicly coming out and saying that they have a zero tolerance for racism. And I think that's fantastic, provided that it actually rings true, it's not just talk. Is this significant from your perspective, from an employment law perspective?
Yes, Kanika, it is, and it's actually caused some legal issues for some employers. For example, Tesla has been accused of not enforcing its zero tolerance approach amidst a lawsuit filed on behalf of thousands of black workers in California after a 32-month investigation. So it's holding itself to a high standard publicly, and yet there are many incidents of racism.
I've had a case recently where the employee who had been discriminated against was demanding the offending employee's dismissal. The employer wanted to show they have zero tolerance to racial harassment, but equally they were concerned that if they dismissed the harassing employee, they could have a claim of unfair dismissal.
Yeah, really, it can be a difficult balancing act at times, and some cynics might be shaking their head and saying, "Well, listen, you're damned if you do and you're damned if you don't in this area." But we'll come back to this because it's clearly not as clear-cut as that. Employers need to have a very clear commitment, but that's not enough by itself. And so we will share some examples of what employers can do to actually implement and act on their policies and to ensure it's not just a PR exercise.
Likewise, we have to acknowledge that there are people who might call the laws and best practice around these issues political correctness gone mad, and we're going to come on to talking about the role of data in a business and why employers should be looking at improving their data collection and how employers can use this to achieve their goals.
We're not going to get too bogged down in the details, but the legal definition of race discrimination is much wider than a lot of employers and managers realise because it goes well beyond how you might use and think about “race” outside of the workplace.
So broadly speaking, the Equality Act defines race as someone's colour, nationality, ethnic origin or national origin. There's also case law to suggest that caste could be protected to the extent that it is connected with ethnic origin, although that hasn't been included in the legislation itself. There's also often an overlap between claims for race discrimination and religion or belief discrimination, so very wide.
And I think it's quite easy to make assumptions about someone's race that may not actually be correct, but you have to remember that it is a key part of someone's identity and it could be offensive to suggest that their identity is misconceived or they can't be of a particular nationality, for example, if they don't live in a particular place or have a particular accent.
And making comments like that in the workplace could quite easily constitute harassment because of race if the person on the receiving end finds that they create an intimidating, hostile, degrading, humiliating or offensive environment (this is how equalities legislation defines harassment). So it's quite a broad definition, and the focus is very much on how the victim feels about the behaviour rather than anyone making an objective analysis about what is or is not acceptable. We're slipping into harassment here, but it's often another aspect of race discrimination claims.
One of the knock-on effects of that is that we're often asked to advise on claims that arise from banter in the office, or inappropriate comments made at work events after a few glasses of wine. But one person's banter can be another person's harassment claim in waiting.
We see this sort of thing all of the time, where banter has been tolerated and allowed to get out of hand. One example is where an entire team used to refer to their colleague of Indian origin as "the little brown boy." They claimed that it was just banter and that the individual concerned was laughing alongside them, so it was all fine, but I suspect that the guy in question was probably pretty offended and humiliated by their comments and just didn't want to make a scene or ostracise himself from the group.
This type of thing will often result in a claim, sometimes by a new member joining the team and making a complaint or by someone who's finally had enough or thinks it's gone too far. Employers really need to educate staff on these issues so that they know where to draw the line, not only because of the risk of a legal liability but also because nobody deserves to work in an environment where they're belittled or made to feel uncomfortable.
Thanks, Jane. There was also a recent case about a black receptionist with Afro hair who won a race discrimination claim because two of her colleagues asked her what electrical sockets she had touched to make her hair look like that. The colleagues concerned saw it simply as a jokey-type banter comment, but the tribunal found that they wouldn't have made the same comment to a white person, and the receptionist was obviously really offended by it.
Certainly, I acted for an airline a few years ago where the claimant, an Afro-Caribbean man, based his claims on the company not taking any action against staff who had drawn a picture of him on a rota that was deemed to be derogatory (essentially exaggerating his hair and depicting him in a cartoonish fashion, if I can describe it in those polite terms).
I have to say in that one that it was only at the stage of taking witness statements that the staff started to recognise the impact of their behaviour, how demeaning and humiliating it was. Again, the matter was not deemed serious enough by managers at the time until grievances were raised and proceedings commenced, the thinking being that the scribbles were a joke, perhaps a little childish, and that the claimant should have a sense of humour about it all.
Jonathan, that reminds me of a case some years ago that wasn't about race discrimination but about sexual harassment, but I think very similar issues arose. It involved some female migrant workers from Europe who claimed to have been sexually harassed by their boss because he used to ask them questions about their sex lives and they were made to wear short skirts. The workers would also engage in conversation of a sexual nature and sometimes even initiate it. But the tribunal found in those circumstances that they'd been using this as a tactic to try and divert the conversation away from themselves and to cope with the really unpleasant situation they were in. Essentially, the employment tribunal compared the women to those being in a violent relationship who were putting up with the situation, even though it wasn't welcome.
I talked earlier about direct racism and the fact that fortunately now it's quite rare at work, I'd like to think, but things do get a lot more complicated when you stray into less obvious forms of discrimination or indirect discrimination.
So indirect discrimination is where an employer makes a decision or puts in place a policy or practice which maybe to a casual observer might appear completely neutral, but actually ends up disadvantaging a group of people with that protected characteristic. So for example, things like dress code policies often come up in indirect discrimination claims. There was a case where a policy of only allowing employees to speak English during team meetings was found to be indirectly discriminatory against those who did not speak English as their native language, and it was held by the tribunal that an interpreter could have been present to ensure there were no misunderstandings at those meetings.
That's not to say that all claims for indirect discrimination will succeed – it is possible for an employer to defend that and to argue that they have objective justification – but it's important to be aware of these subtleties, as I might describe them, but the essence of indirect discrimination as well.
So as you've mentioned defences, Jonathan, I think then let's look at what employers can do to prevent race discrimination from occurring and, I guess related to that, what the tribunals look at when deciding if an employer has successfully defended itself against a claim. And again, it's just so important to make sure you're doing enough and following the latest best practice, because the burden of proof very quickly passes to the employer in discrimination cases.
So there's the all reasonable steps defence, which is where an employer effectively says, "We did everything we reasonably could to stop discrimination happening, and here is the evidence." They would then usually show evidence of things like training programmes on equality and diversity, any relevant policies or procedures they have in place, or evidence of previous disciplinary decisions against perpetrators of discrimination.
I have to say in all my years, I don't recollect an employer defending a discrimination claim by saying that they took all reasonable steps. And sometimes they will think that they have taken reasonable steps or try and convince us of that reality, but, obviously, it's a very high bar, and it should be.
So there was a case recently where an employer tried to rely on the reasonable steps defence but failed because the tribunal found that their training was, in actual fact, stale and ineffective. And I think we can imagine why that might be the case when perhaps employers have an annual update or the way the policies sit in a drawer. This finding by the tribunal was supported by the fact that three employees had known about the discrimination taking place but hadn't done anything about it. So employers need to make sure they are keeping training and policies up-to-date and delivering on those, that the policies remain meaningful and, actually, everybody cares about them and is keen to make sure they're properly implemented.
And, Jonathan, I think that's so important. As you say, it's not about the policies sitting in a desk drawer gathering dust. They need to have teeth. The policies need to be clear, they need to be easy to understand and follow, and management need to be really familiar and comfortable with them as well. What is it that the organisation is saying?
I think making sure that your commitment to diversity and equality and support for staff becomes part of your induction process for new joiners can also really help to embed the policy and ensure that it's universally understood and enshrined within the business. I think also asking for feedback on equality issues during exit interviews is a really important step to better understanding what's going on within a business. And I think even more important is if you do get that feedback, then taking steps, proactive steps, to dealing with it.
It goes beyond policies and training, though. And I think employers are increasingly realising that they need to go way beyond saying the right things and actually set themselves clear commitments and targets, and put measures in place that mean that they're held accountable – whether that's by their staff or external stakeholders, it doesn't matter. There needs to be something to measure themselves against.
So that's why things like networks, employee networks, are really important. I think they help bring issues to the table that perhaps wouldn't otherwise be raised, and they act as a sounding board for employees within the network. My own experience of co-chairing our BAME network is that it gives a forum for employees to come forward and voice concerns which they otherwise wouldn't necessarily do.
As I said earlier, we've been running our own series of sessions here at TLT. It's been called Reflections on Race, and we've looked at four key themes. Now, importantly, we've actually kept these sessions internal to TLT staff only, as we wanted this to be a really introspective look at ourselves and our own firm community before we then consider what we might do more broadly and externally. So what have we looked at?
The first session, looking at the R in race, was about racism in the workplace. So this was a real back-to-basics almost and looking at what the different forms and types of racism are, what it can look like, and most importantly, I think, was some of our internal speakers were talking about their actual lived experiences. And I think that's probably one of the things that landed the most with people. We looked at the impact of racism in the workplace, either on a personal level or on their own career progression. And we talked through scenarios, so a bit of role play to put the discussion into context, and had a look at statistics as well, both on a macro and micro level.
Yeah, I really enjoyed that, Kanika. I think my main takeaway from your sessions was that employees really need to be educated about the real life experiences of people who have suffered from racism and to understand their colleagues and their backgrounds, which it's very easy to say, but just having that extra level of thoughtfulness and trying to put yourself in the position of understanding somebody's experiences and what that felt like and the impact on them, whether in work or outside of work.
I think that links into the second session which we had, which was about allyship. I think we'd all say, I hope, that we're not racist, but there is a significant difference between being not racist and being anti-racist. So I think it's key to be able to equip people within our businesses to be able to move that dial and take a more proactive role in building a really inclusive environment at work.
So as part of that session, we looked at the different types of allies that can exist. And they'll range from things like being a mentor, to being a confidante, a supporter, a champion, being that person in a meeting who calls things out. It's not all about being a knight in shining armour coming to save the day in that moment when a racist incident arises or a comment is made, but it's more about taking those practical steps on a day-to-day basis, all of which move that dial towards a more inclusive and, hopefully, meritocratic environment for us all to work in.
And I think that then leads on to what was our third session around communication and language. Look, this is a really sensitive area. I don't think there is any one right answer as to what the right language is to use in any given situation, and there's definitely no one-size-fits-all; I just don't think there can be on such a sensitive issue. So just as we all have different political or religious views or views about what books or films we like, we also have different views on what we consider offensive when it comes to talking about race, or skin colour, or ethnic origin, that there's a scale for these kind of things. And I don't think it works to have, for example, a set list of rules or guidelines about what's okay to say, what isn't, although clearly there are some terms which will definitely never be okay to use. But I think it's just more about getting to know our colleagues and their backgrounds and understanding what they're comfortable with or not.
Moving onto our final session, which was the E in race, which we used to talk about equality and equity, we really focused this session on what does the future look like for us at TLT? We need to make sure that we have targets to work towards. And the key is that they're achievable and that we're being held accountable for that, and that we put things in place like reciprocal mentoring to help those being mentored to better understand the true challenges being faced by ethnic minorities in the workplace. And there's a lot of data helpfully out there which suggests that these kinds of reverse mentoring schemes are a huge success. So I'm really looking forward to seeing what will come of them. And hopefully, we'll have a lot of people signing up for them.
I think it's worth mentioning the Race at Work Charter, which was developed by Business in the Community, who we partner with. There are already a huge number of signatories to that charter, including some really big household names. And those signatories agreed to make various commitments, including capturing their ethnicity data and publicising their progress; ensuring that managers' performance objectives include supporting fairness for all staff; and taking action that supports ethnic minority career progression, such as the ones Kanika has touched upon: mentoring and sponsorship, for example.
Kanika, I think you have some thoughts on data to help with the employment aspects of inequality.
Yeah. I think data's really important, actually. There's various ways in which having accurate and up-to-date information about your employees and improvements that you're making year-on-year can support everything that we've been talking about.
Interestingly, in our final event in our Reflections on Race series, we had Raph Mokades speaking, who's the founder and managing director of Rare Recruitment, and we use them here at TLT to help with our graduate recruitment. He said that the number one thing a business can do to improve diversity is gather data on its people. And that can be difficult because not everyone is willing to share that data or impart that because there's very much a feeling of, "Well, it's none of your business." But from a business's perspective, it really does help to understand where it is that you're starting from, and so what those achievable and realistic targets can look like. I think it's also really helpful to highlight trends and patterns – especially when, for example, looking at exit patterns from an organisation. So can you pinpoint a certain team or a certain individual, for example? So, yeah, I think data's key, actually.
Also, I would add that data gathering is so worthwhile because, as the saying goes, you can only manage what you can measure. So it can form the basis for addressing any issues in your business. So if candidates with the same qualifications are applying for roles but BAME candidates aren't making it to interview, you can see that. You can see that you potentially have a problem and you can do what's necessary to fix that.
And data, of course, can show when things are working and the positive impact that policies, quotas and other practices are having. So that's going to be really powerful, I think, in holding yourself and others to account and to push back on woke accusations. And employers are probably going to find that really useful when it comes to defending any employment tribunal claims and internal issues as well.
I also wanted to mention the Race Fairness Commitment. TLT has signed up to this, along with a range of other law firms and businesses. And this sets out six goals and public commitments on fairness at work for people of all ethnic backgrounds. I recommend really taking a look at their website to find out more about the commitments and explore the resources on how to promote race fairness. We shall put a link to that in the episode notes.
There are a couple of final points to make, and that's about positive discrimination and positive actions.
So on positive discrimination, there's a common misconception that you're allowed to positively discriminate in the workplace, by which I mean you give preferential treatment to a person solely on the basis of a protected characteristic, irrespective of their skills or suitability for the job. That's not allowed, but quotas are different and they are legal. A few big employers have recently announced that they're doing this. For example, Lloyd's Banking Group has pledged to increase the number of black staff in senior roles from 0.6% to at least 3% by 2025.
Employers are also allowed to take what's called positive action to lessen disadvantages or remove obstacles caused by protected characteristics, as long as it's proportionate. And we've certainly had some client queries about this over the last couple of years.
The Equality and Human Rights Commission guidance, which we'll link to in the notes, sets out some helpful examples of what you can do. So some examples might be placing job adverts targeting particular groups, or offering training or internships for certain groups, or hosting an open day specifically for underrepresented job seekers. And it is possible to favour a job candidate from an underrepresented group, but only where two candidates are as qualified as each other. It's a fine line, though, so worth seeking some advice on.
I'm involved with a number of sports organisations. And one interesting question that comes up from time to time is whether a panel of decision-makers in, for example, a race discrimination complaint should actually be ethnically diverse in order to hear and understand the complaint more fairly. It seems to me a bit simplistic to say that, "This is a race case. Let's get a black panel member," for example, and it could potentially lead to other biases and the possibility of GDPR implications of sourcing panel members based on protected characteristics as well.
I think for many people, the sports issues around race can be thought provoking and generate some challenging questions, and it maybe leads as an entry point to the wider issues. So for example, the English FA have issued sanctions to managers that have abandoned games where there have been discriminatory comments on the field of play. And there have been high-profile players who have suggested their teams will walk off in the face of abuse. It's a developing area and one the regulators struggle with, I think.
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11 April 2022
Insights 11 MAY 2022