UK & Europe
Employment, Pensions & Immigration
There has been little change in the number of black workers in senior professional roles since 2014, according to a new report from Business in the Community, a business-led membership organisation dedicated to responsible business.
According to the report, only 1.5% of managers, directors and senior officials in the UK are black. This is despite the fact that black people make up more than 3% of the population in England and Wales.
How can employers implement change to increase the representation of black workers in more senior positions, and also generally within their workforces where there is a wider representation issue?
Certainly the recent spotlight which has been thrown on racial diversity has increased the focus on this issue for employers. Whilst many employers have been taking steps and dealing with diversity from a sex and gender perspective, particularly following the advent of gender pay gap reporting, the focus on diversity cannot start and stop there.
With Parliament set to debate mandatory ethnicity pay gap reporting in light of a recent petition called for its introduction passed 100,000 signatures, this article looks at where we have got to on this, and what employers can be doing now to look to implement change to improve racial diversity in the workplace.
Positive Action, and how it can be used lawfully to help racial diversity
If an employer treats an employee, worker or job applicant less favourably because of their race, this is unlawful – because it is an act of direct discrimination.
This means that treating someone more favourably because of their race would be unlawful direct discrimination against the person of a different race who is consequently treated less favourably. A company cannot, therefore, simply seek to deal with diversity issues by, for example, promoting individuals from an under-represented group; or only hiring people from an under-represented group. This is known as "positive discrimination", and is unlawful.
However, "positive action" is lawful, and can be used where an employer reasonably considers that persons of a particular race are disadvantaged, have different needs or are disproportionately under-represented in the workforce.
There are two types of positive action:
Where are we on Ethnicity Pay Reporting?
Mandatory Ethnicity Pay Reporting (namely the compulsory publication by large employers of a breakdown of employees by race and pay band) was first proposed in February 2017 by Baroness McGregor-Smith who led a review, "Race in the Workplace". To date, this has not happened. Nonetheless, there has been some limited progress:
Mandatory Gender Pay Gap Reporting, introduced in April 2017, is helping to maintain a real focus on any disparities in pay between genders. Should mandatory ethnic pay reporting be introduced, it is likely that this will create and sustain a similar level of focus. Such a focus will commonly lead to a focus on any under-representation at senior levels, because that can be a key cause and driver of pay differentials on a statistically averaged basis. And that can then lead to a focus on positive action to assist in addressing under-representation.
How to achieve diversity monitoring in light of GDPR?
While ethnicity pay reporting remains a work in progress, diversity monitoring can serve as an effective way for employers to first identify where they may have under-representation. It is only having identified any such under-representation that positive action can then be considered. Monitoring is necessary to enable you to understand what your diversity currently is, and to assist you in deciding on where you want to focus.
However, there are a number of considerations to take into account when conducting diversity monitoring, not least the impact of the data protection laws – namely the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
The data protection laws allow employers to process employee personal data where it is for the purpose of monitoring diversity and equality of opportunity or treatment. However, strict parameters apply when doing so.
Diversity monitoring involves processing employees' 'special categories' of data. This is the most sensitive form of personal data as it includes information about race, ethnic origin, health and sexual orientation. An employee's explicit consent is not needed to collect this data, provided it is only collected for its proper purpose and is proportionate. This can be difficult for employers to judge, and employers will be wary of any potential penalties for getting it wrong. However, the following are some tips and tricks which can help employers both minimise risk and maximise the potential offered by the data collected (given that diversity monitoring is a must going forwards in any attempt to tackle diversity):
Also, employers should bring employees with them. Clearly documenting what you are doing with data, and why, is not only a must for GDPR compliance, but also assists in employee relations and communicating with your employees what you are doing.
Diversity monitoring is one of the most effective ways for employers to manage and promote diversity in the workplace, and as long as employers ensure that they are complying with data protection law, should serve as one of the key tools for employers to use to combat discrimination.
What employers should be doing to make an impact?
Potential steps include:
If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact.
Written by Chris Holme, Suzanne Staunton, Jeremy Charles and Ruth Moffett.