Navigating the complexity of diversity, equity and inclusion

We are living in increasingly divided and polarised societies, where identity politics or those with the strongest views or the loudest voices often dominate discussion and debate. This sense of division can create a fear of challenging both minority and majority group members to the detriment of equitable outcomes. So how can DE&I professionals maintain a focus on fairness, respect and inclusion?

Five rules of fair, respectful and inclusive decision-making

The role of DE&I professionals is to advise and guide the organisations they work for, and they can only do that effectively if they are able to cut through the noise, demystify inequity, harassment and discrimination. Fortunately, in the UK we have an excellent tool to guide us in the Equality Act 2010 (and the Public Sector Equality Duty for those in the Public Sector).

First and foremost, the Equality Act is an anti-discrimination legislation. It sets out precisely what the nine protected characteristics are, what constitutes harassment and victimisation , and the different types of discrimination. It is also clear about what action organisations can take to mitigate disadvantages suffered by people who share a protected characteristic – positive action - and yet, this positive action is often misunderstood. 

Positive action v positive discrimination

Chapter 2 of the Equality Act 2010 tells us that we can treat people who are disadvantaged by sharing a protected characteristic (underrepresented groups) more favourably than those who are not underrepresented if we reasonably think they are disadvantaged by their protected characteristic, or their participation is disproportionately low. However, the person in the underrepresented group must be as qualified, it must not be a blanket policy to treat underrepresented groups more favourably and the action must be proportionate. This is referred to as the tie-break. 

Where these conditions are not met, any positive action is be discrimination, sometimes referred to as positive discrimination, and therefore illegal. The Act is also clear that one underrepresented group cannot use their protected characteristic to discriminate against another underrepresented group. 

Identifying the foundations of fair, respectful and inclusive decision-making

Of course, understanding the provisions of the Equality Act are only one element in a DE&I professional’s toolkit when issues arise. We should also ensure that our decision-making is anchored in fairness, respect and inclusion and there are five golden rules to help us do that:

1. Define the principles

• a. Inclusion means creating a work-place environment where all individuals feel respected and valued as equal members of the team, and where all skills are leveraged without bias.
• b. Anti-discrimination is the practice of actively seeking to remove policies, processes and practices that wittingly or unwittingly negatively impact on a protected characteristic, or other social group. Anti-discriminatory practice is the active effort to intentionally identify and remove prejudice and discrimination from workplace thinking, behaviours, decisions and systems.
• c. Equity is the recognition that to achieve fair outcomes, we must strive to remove social and cultural barriers that prevent talented individuals from accessing opportunities and achieving their full potential.

2. Remove emotion and identity

• a. Put aside existing relationships as these may lead to affinity and bias thinking and decision-making.
• b. Don’t allow identity politics or strong personalities to influence your thinking – this should be based in evidence only.
• c. Adopt the principle of perspective-taking – that is looking for common points of agreements on key issues. This helps to reduce tensions in workplace relationships. 

3. Examine the evidence using values based and legal criteria

• a. Does the behaviour at play contravene your organisational values, and, or existing legislation?
• b. Remember the legal principle; being part of one marginalised groups does not give you the legal right to discriminate against any other protected characteristic.
• c. Have a checklist for decision-making. Checklists have been shown to reduce bias and promote fair and equitable thinking and decision-making.
   

4. Assess the impact

• a. Consider the scale of the impact of colleagues’ behaviour on others – remember the ‘intention’ vs effect principle – it’s the impact of behaviour that counts, not the intention.
• b. Create a 1–5 rating scale covering key themes from inappropriate behaviours, rudeness, exclusion, bullying and discrimination. Set a red line. Once this is crossed, the scale should determine actions and consequences. Such a scale allows for consistent action, taking out emotions and the influence of relationships.

5. Act with speed

• a. Acting with speed assists with addressing the issues at play – this helps to foster trust and confidence in existing processes and acts to close down any existing interference in current thinking and decision-making.
• b. Communicate the outcome of your decisions to all key stakeholders involved. Such communication promotes transparency and openness. 
  
  

Examples of positive action v positive discrimination

Royal Air Force

•  Facts: A recent non-statutory enquiry by the Ministry of Defence into practices in the RAF found that efforts to increase representation of ethnic minorities and women had discriminated against white men. In 2020 and 2021 the RAF had fast-tracked ethnic minority and female recruits into training slots, resulting in 31 white men missing out on cyber roles. The RAF considered this to be positive action consistent with the Equality Act 2010, but because a blanket policy was applied, rather than assessing whether candidates were of equal merit, the action was in fact discrimination.
• Issue: By employing a blanket policy to accelerate women and ethnic minorities the RAF discriminated against white men.
  
  

Furlong v Chief Constable of Cheshire Police

• Facts: Mr Furlong is a white, heterosexual, non-disabled male. He applied for a position as a police constable in Cheshire Constabulary and successfully completed an assessment centre and interview but was unsuccessful in his application. He believed this was because Cheshire Police treated other candidates with protected characteristics more favourably during the recruitment process and that they were not as well qualified as him.
  
  Cheshire Police argued that they had applied positive action to increase the diversity of their workforce and that there were 127 candidates of equal merit.

• Decision: The Court held that Cheshire Police directly discriminated against Mr Furlong because they had not proven that there was a particular barrier to candidates with protected characteristics nor was the blanket approach applied a proportionate means of achieving greater workforce diversity. Additionally, the Tribunal did not consider it was possible that 127 candidates could be as qualified as each other.
• Issue: Appointing less qualified women and ethnic minority candidates discriminated against Mr Furlong.
  
  

Forstater v Centre for Global Development

• Facts: Ms Forstater worked as a visiting fellow on a consultant contract for Centre for Global Development Europe. During online discussions regarding potential reforms to the Gender Recognition Act, she published a series of messages on her personal Twitter account arguing that it is not possible to change sex, that “women” means adult human female and that men cannot become women. This led to concerns being raised by staff at CGD and when her contract expired CGD decided not to renew it due to her views. CGD also removed Ms Forstater’s profile from their website.
  
  
• Decision: The Employment Tribunal considered whether Ms Forstater’s view that “sex is biological, binary, immutable and important” was covered by the protected characteristic “religion and belief” under the Equality Act 2010. The Court found that her view was “incompatible with human dignity and fundamental rights of others” and therefore was not protected under the Equality Act because it was not “worthy of respect in a democratic society”.

Ms Forstater appealed, and the Appeal Tribunal concluded that the belief that “biological sex is real, important and immutable” was protected under the Equality Act because it met the legal test of a “genuine and important philosophical position” and “could not be shown to be a direct attempt to harm others”.

A full merits hearing was held to consider whether Ms Forstater was discriminated on the basis of belief when her contract was not renewed and victimised because her profile was removed from the website. The Court decided that Ms Forstater had been subjected to direct discrimination and victimisation because of her gender-critical beliefs.

• Issue: Gender reassignment v religion or belief – in seeking to protect gender reassignment CGD discriminated on belief.
  
  

Ladele v London Borough of Islington

• Facts: (NOTE: this case predates the Equality Act but the principles still apply.) The Civil Partnership Act 2004 (UK) came into force on 5 December 2005, introducing civil partnership between same sex partners. Ms Ladele was employed by the London Borough of Islington ('Islington') as a registrar. She is an orthodox Christian, and objected to enabling same sex unions to be formed.
  
  Ms Ladele swapped assignments with colleagues to avoid officiating at civil partnerships. Islington considered this to be a breach of its 'Dignity for All' equality and diversity policy. It required all registrars assigned to officiate at civil partnerships, including Ms Ladele, to register same sex unions. Ms Ladele argued that Islington discriminated against her on the ground of her religious belief by compelling her to do this, contrary to the Employment Equality (Religion or Belief) Regulations 2003 ('Regulations'). She also made a related complaint of harassment.
  
  
• Decision: The Court held that Islington did not directly discriminate against Ms Ladele because she was not treated differently to any of the other Islington employees, who were also required to register civil partnerships.
  
  
• Issue: Not discrimination because Ms Ladele was not treated less favourably because of her faith.