With the recent spotlight on the Black Lives Matter movement, many employers have publicly declared their support. Human rights issues highlighted by the media have raised awareness amongst people who had previously been unaware of the difference in treatment of other people. Some employers have released public statements about changes they feel they need to make to their own employment practices and to demonstrate their commitment to making change happen.

With more employees returning to the workplace post-lockdown, what should employers be thinking about doing to address these concerns, given the significant impact of media attention?

Race discrimination legislation has been in place since the 1970s. However, the Equality Act 2010 arguably was a game-changer and extended the range of what could be regarded as unlawful discrimination. The Black Lives Matter movement, and protests internationally, have forced employers to reconsider whether they are taking adequate steps to ensure equality for all. It has prompted employers to reconsider both the effectiveness of their policies and what happens in practice in the workplace.

The legislation applies not only to employment but to the provision of goods and services. In the employment context, discrimination law applies not only during employment but also to the recruitment process for potential employees. The Act makes it unlawful to discriminate on the grounds of race and religion or belief.

During the recruitment process, employers could consider enhancing their recruitment processes and help mitigate any discriminatory practices by considering the following:

• The placement of job advertisements – does it have maximum reach to all communities within the local area? Are specific groups targeted to encourage applicants from underrepresented communities?
• Are CVs anonymised? Making assumptions about an individual based on their name, age and gender not only could be a source of discrimination, but could also detract from relevant skills and experience contained within the CV.
• Once the interviews commence, have you ensured that the make-up of the interview panel is as diverse as it can be for the role? This helps mitigate any unconscious bias and provides for a wider viewpoint of candidates.

While employers should already have equality as well as anti-harassment policies in place, many of those may need updating. It is worth reviewing these policies to consider aspects such as the language and terminology they contain, and how minority groups are referred to in them. As recent protests indicate, times have moved on. Employers should avoid using terminology that serves as a ‘catch all’ phrase to describe marginalised groups, such as ‘BAME’ (Black and Minority Ethnic). This could result in further marginalising groups of people.

Policies should be reviewed to ensure they also remain appropriate and clear, to promote best practice and set out the employer’s approach to equal opportunities and harassment. Employers should ensure employees are also aware of what standards of conduct are acceptable and what the implications are of breaching equality and anti-harassment policies.

Employers should also consider if it is appropriate to consider behaviour both inside and outside of work. Employers should consider whether they have procedures and policies in place that would enable them to lawfully take disciplinary action against an employee for behaviour outside of the workplace.

Training is something else employers should be thinking about, in particular whether there is adequate training in place for their managers or if refresher training is required to bring them up to speed and up to date. The training should cover how they should respond if they witness inappropriate behaviour or receive a complaint relating to racism in the workplace. All managers and employees should be clear on their obligations to not only be proactively inclusive of all within the workplace, but to protect customers and suppliers of the business too. For new starters it is critical that induction training sufficiently covers the policies and the behaviour employers want to encourage so they are clear on what is expected from the outset.

The Black Lives Matter protests have certainly encouraged the wider population to accept that they may be ignorant or uninformed of race and discrimination issues. Some businesses have actively encouraged employees to engage in anti-racism resources through reading books and articles and watching films and TV series to help them try to understand the full effects of systemic racism.

All employees should feel they can speak up against inequality and be confident their employer will take a robust response to unlawful discrimination. Employees should know how to report any incidents of racism, whether they are a witness to it or the subject of it. Discrimination should be taken seriously regardless of the race of the person reporting, and employees should feel confident they can raise concerns informally initially and they will be addressed. This can avoid the necessity of making a formal complaint via a grievance procedure.

It is key to ensure anyone who reports an incident feels safe and supported. Employers need to understand and be cognisant of the duty of care they owe to all their employees, to look after them and their health and safety.

Recent events may lead to a higher sensitivity around issues of race. Having robust policies and procedures that are well communicated within an organisation will support both employer and employees in tackling and addressing these issues effectively.

Pam Loch is an employment law solicitor and managing director of Loch Associates Group.