Equality, diversity and inclusion (EDI) was a hot topic at this year's CFG's Annual Conference. Sam Burne James reports on the latest thinking and insights.
How do you create an inclusive workplace, and what do you need to keep in mind to avoid falling foul of the law?
These and other questions were answered at a session entitled ‘Positive action - developing inclusive workplaces’ - at last month’s CFG Annual Conference, ‘Shaping Tomorrow’.
Introducing the session, CFG’s Deputy CEO Dr Clare Mills reflected: “We all make assumptions and judgements about people in our heads, but what really matters is how we behave as a result of these assumptions.”
Mills went on to acknowledge that inclusion can be an uncomfortable topic, especially for those in positions of power or who have less direct experience of inequality.
In those uncomfortable moments, she said: “I try to remember that the discomfort is nothing compared to maybe the pain of experiencing racism or ableism and so on.”
The legal picture
The session began with Rachel Lewis (pictured above), a partner at law firm Farrer & Co, describing key items from the Equality Act 2010 – and pointing attendees to official guidance on it.
The Act specifies ‘protected characteristics’: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
It also distinguishes between ‘positive action’, which is permissible, and ‘positive discrimination’, she said, “generally isn’t”. Lewis explained that it contains two definitions of what constitutes positive action.
- The general rule: Described by Lewis as the “most commonly used”, this can be applied if an employer “reasonably thinks that people who share a protective characteristic experience a disadvantage; have different needs to people without that characteristic; [or] have a disproportionately low participation in an activity as a result”, she explained. If you believe that that disadvantage is experienced –and you don’t need “massively sophisticated data” to come to that conclusion, Lewis said – then you may take “proportionate” action to enable people to overcome that disadvantage; to meet those different needs; or encourage or enable participation.
- The recruitment and promotion rule: Also known as the tiebreaker provision, Lewis explained that this means that if you have multiple candidates of equal merit, you can choose to hire or promote one on the grounds of their protected characteristics. Given how uncommon it is to find two candidates of exactly equal merit, Lewis said that this was “not commonly used”.
Lewis said that the key to keeping on the right side of the act was to “document your reasoning” for taking certain steps; “act proportionately”; and “measure progress and keep actions under review”.
It is also important not to recruit “specifically to remedy a lack of diversity”, including being “overenthusiastic” with the tiebreaker provision, and not to expect immediate results, recognising that inclusion measures can take time to bear fruit.
Two increasingly tricky areas, she added, are competing rights – as Lewis explains, no protected characteristic trumps any other – and clashes between beliefs.
Someone might hold a belief that colleagues vehemently dislike, but holding that belief is likely to be protected by the Equality Act unless it is, Lewis, explains, “not worthy of respect in a democratic society – so for example it’s akin to Nazism, totalitarianism, or espouses violence”.
A charity cannot take action against someone because they hold an unpopular but legal belief, Lewis made clear. She noted the case of an employee being dismissed following an interview they’d given to the media about same-sex adoption.
The Court of Appeal eventually ruled that this dismissal had been lawful – not because of the person’s opinion itself, but because giving the interview had breached the employer’s policies.
Lewis later referenced another case in which an employee was dismissed after having used what she described as “exceptionally offensive racist language” during a diversity training session.
Attendees had been encouraged to “speak freely” during the training, Lewis said, but the employee in question had also missed a session at the beginning which set out acceptable use of language. A tribunal found the employee had been unlawfully dismissed, and awarded him half a million pounds.
“Getting your training right and ensuring that your training providers know how to balance those things that may come up during sessions is really, really important,” Lewis commented.
Thinking about culture
Moving from the legal to the more cultural side of inclusion, Lewis handed over to Lucy Straker. In addition to being a charity communications professional, Straker is co-founder and CEO of Proud Changemakers, a group of LGBTQIA+ volunteers who elevate, advocate and support those people across civil society. Straker is gender fluid and uses the pronouns they or she.
Straker emphasised the importance of having not just a well-meaning, pro-inclusion mindset, but also putting good, practical measures in place – and reviewing these regularly – in order to develop an inclusive workplace. They commented: “If you have only one of those two, it will be performative. You have to have both of these working in harmony.”
Straker kicked off the presentation with a short, thought-provoking and in places funny film describing the importance of empathy – and the difference between it and sympathy.
“What I'd like you to do is try to think about a time when you've been struggling mentally, physically, practically, whatever it may be, feeling overwhelmed,” they said as the film ended, highlighting that these feelings may be more common to transgender or non-binary individuals, the wider LGBTQIA+ community, and other underrepresented groups.
Straker argued – and plenty more HR and workplace experts would agree – that an organisation with a no-blame, non-defensive culture, which allows people to genuinely connect, share, ask questions and feel safe, is one which will help all staff to be more engaged and productive.
Straker later showed a second, similarly inspiring film which included examples of this kind of workforce in action – as well as previous experiences in less supportive environments.
So, what can you do to create that kind of space?
Straker said that one effective measure they had initiated in workplaces was an ‘Any Questions’ hotline. This allows people with questions – whether it is about LGBTQIA+ or gender terminology, or another area of diversity – to anonymously submit queries.
Your organisation’s DEI working group can answer them in a public space, ie the intranet or internal newsletter. “Nobody knows who asked the question, but everybody gets to learn,” said Straker.
They reiterated Lewis’ point about the importance of well-executed training, commenting: “Somebody said to me once that education breaks the cycle of offence, because the more we learn, the more we know what to do next time.”
On that point, Straker said it was important for people to be allowed to get things wrong, adding: “It's how you react and respond that's really, really important. So apologise, listen, value people's opinions and learn. Don't say things like, ‘oh that's what I've always said’. Because that's not how you live. Learning from each other is so important in this.”
Straker also urged employers to recognise the impact of a traumatic event for a community – mentioning the murder of Brianna Ghey for the trans community as an example – and to take the time to show their support for that group in that moment of distress.
Specific to transgender and non-binary inclusion, Straker had a number of suggestions:
- Ask yourself ‘If I wanted to come out as a transgender person in my workplace, where would I go? Who would I speak to?’ Straker explained: “If you don’t know, then the person in your organisation who wants to transition also doesn’t probably know.” And, it's important to have a transitioning at work policy, they added, commenting: “If you don't have one, there's plenty on the internet to have a look at.”
- Having a standard but not mandatory policy of sharing your pronouns on email signatures or in website biographies. Said Straker: “It will make a real difference to trans and non-binary people in your organisation when you start doing that, because they will feel seen.” You could include a link to a blog explaining why you do this.
- “Remove gendered and binary language in your communications,” they urged, giving the example that ‘ladies and gentlemen’ is not inclusive, while ‘everyone’ is – and it’s also shorter. “It’s the same with ‘he’, ‘she’ – just say ‘they’. Try not to kind of group people together by their perceived gender,” Straker said.
- “If you see somebody being misgendered, call people in and say, ‘no, this is their gender’,” they urged, but added: “But don't out people without consent.”
As for the biggest thing you can do wrong? Nothing.
“It’s okay to make mistakes,” Straker said, “because quite often people say to me, 'I didn't know what to say, so I said nothing.' And what I say to my four-year-old, is ‘if you say nothing, nothing happens’.”
They challenged attendees to take action, saying: “You can be two things in this world. You can be an adversary or you can be an advocate. You cannot be anything else.”
Straker’s rallying cry chimed neatly with a comment made in the conference’s opening plenary by CFG special advisor Pesh Framjee.
“All of us have a role to play in ensuring the right culture and behaviour permeate through our organisations – in our own teams, in calling out things that we think are wrong, but also at board level,” he commented.
Armed with insights into inclusion and many other issues, attendees left the conference inspired to do just that.
Further resources
Farrer & Co
Proud Changemakers