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Our Safeguarding Unit task force (which looks at racial equality within the safeguarding context, collaborating with and promoting the work of experts from ethnic minorities) has been closely following the Government’s Commission on Race and Ethnic Disparities. Please see our previous three briefings here (19 June update); here (21 July update); and here (25 September update).
 

The most recent development from the Commission came on 26 October 2020, when it published a call for evidence (in effect, an open consultation) which closes on Monday 30 November 2020 at 11.45pm. 

Call for evidence

In this call for evidence, the Commission said:

“We know that there are ethnic disparities in educational attainment at school, in employment, in risk factors and outcomes for different health conditions, and within the criminal justice system”.

To understand why such disparities exist, and what works and what does not, the Commission invites submissions of evidence and responses on ten questions from:

  • the public and local communities;
  • public, private and third sector organisations;
  • researchers and academics; and
  • others who wish to share their views.

Ten questions

The ten questions are (and you do not have to answer all of them; some are quite obviously questions aimed at the education sector, whilst others are more suited to those in health services and criminal justice):

  1. What do you consider to be the main causes of racial and ethnic disparities in the UK, and why?

  2. What could be done to improve representation, retention and progression opportunities for people of different ethnic backgrounds in public sector workforces (for example, in education, healthcare or policing)?

  3. How could the educational performance of school children across different ethnic and socio-economic status groups be improved?

  4. How should the school curriculum adapt in response to the ethnic diversity of the country?

  5. How can the ways young people (in particular those aged 16 to 24 years) find out about and access education, training and employment opportunities be improved?

  6. Which inequalities in health outcomes of people in different racial and ethnic groups are not (wholly) explained by inequalities in underlying determinants of health (for example, education, occupation or income)?

  7. How could inequalities in the health outcomes of people in different ethnic groups be addressed by government, public bodies, the private sector, and communities?

  8. What could be done to enhance community relations and perceptions of the police?

  9. What do you consider to be the main causes of the disparities in crime between people in different racial and ethnic groups, and why?

  10. Can you suggest other ways in which racial and ethnic disparities in the UK could be addressed? In particular, is there evidence of where specific initiatives or interventions have resulted in positive outcomes? Are there any measures which have been counterproductive and why?

What should employers do in light of this Commission and more generally to increase diversity?

First, review these questions and consider whether you can usefully contribute to the work of the Commission by either answering them or perhaps submitting other useful information, such as initiatives that genuinely improved diversity.  Conversely, it may be useful for the Commission to hear about initiatives attempted, but which were unsuccessful.

Second, there has never been a better time to consider your organisation’s strategy for improving diversity at all levels. Recently we have looked back to reviews carried out in this area, including the “The Time for Talking is Over. Now is the Time to Act.” Race in the Workplace – the McGregor-Smith Review (report here) and A Report into the Ethnic Diversity of UK Boards by Sir John Parker October 2017 (report here). These reviews make useful findings and recommendations which are transferable across sectors including:

  1. Executive sponsorship: businesses that employ more than 50 people should identify a board-level sponsor for all diversity issues, including race. This individual should be held to account for the overall delivery of aspirational targets. In order to ensure this happens, Chairs, CEOs and CFOs should reference what steps they are taking to improve diversity in their statements in the annual report.

  2. Diversity as a key performance indicator: employers should ensure that all leaders have a clear diversity objective included in their annual appraisal to make sure that leaders throughout the organisation take positive action seriously. (For our previous briefing “Time to take Positive Action?” by Katie Fudakowski and Xinlan Rose see here).
     
  3. Reverse mentoring: senior leaders and executive board members should seek out opportunities to undertake reverse mentoring opportunities with individuals from different ethnic backgrounds in more junior roles. This will help to ensure that they better understand the positive impact diversity can have on a company and the barriers to progression faced by these individuals.

  4. Reject non-diverse lists: when recruiting through a third party or recruitment agency, employers should ensure proportional representation on lists. Long and short lists that are not reflective of the local working age population should be rejected.

  5. Diverse interview panels: larger employers should ensure that the selection and interview process is undertaken by more than one person. Wherever possible, this panel should include individuals from different backgrounds to help eliminate any lingering unconscious bias.

  6. Diversity in supply chains: all organisations (public and private) should use contracts and supply chains to promote diversity, ensuring that contracts are awarded to bidders who show a real commitment to diversity and inclusion.

  7. Diversity from work experience level: employers should seek out opportunities to provide work experience to a more diverse selection of individuals, looking beyond their standard social demographic. This includes stopping the practice of unpaid or unadvertised internships.

  8. A description of the Board’s policy on diversity should be set out in a company’s annual report: this should include a description of the company’s efforts to increase, amongst other things, ethnic diversity within its organisation, including at Board level.

  9. Companies should encourage and support candidates drawn from diverse backgrounds: this should include people of colour taking on Board roles internally (eg subsidiaries) where appropriate, as well as Board and trustee roles with external organisations (eg educational trusts, charities and other not-for-profit roles). These opportunities will give experience and develop oversight, leadership and stewardship skills. Stewardship, mentoring and sponsorship are essential components in professional development and progression. Without the appropriate commitments from existing Chairs, Boards and executives, UK companies will not attract, develop and retain the best talent, whatever their background and wherever they may be located. We encourage companies to establish objectives for the development of their respective pipelines and to record and track progress against those objectives, and report these matters to their Boards on a regular basis.

  10. Led by Board Chairs, existing Board directors of the FTSE 100 and FTSE 250 should mentor and/or sponsor people of colour within their own companies to ensure their readiness to assume senior managerial or executive positions internally, or nonexecutive Board positions externally.

In addition, the Parker review contained a useful “questions for directors” section which is transferable across sectors. The questions include:

  1. Does our Board succession plan (both executives and non-executives) include criteria that would bring forward qualified candidates from ethnically diverse backgrounds?

  2. Can we evidence that our [leadership] has enough constructive and diverse thought being expressed to avoid “group-think” and to provide insight into the trends that will impact our markets, customers, employees and other key stakeholders?

  3. Can we evidence the fact that we have asked our HR team or recruitment consultants to identify and present to us candidates that represent ethnically diverse backgrounds?

  4. Would the outside world (specifically customers, suppliers, partners, regulators and legislators) currently see our [organisation] as appropriately reflective of our stated values, our commitment to the markets and communities in which we operate and the people we employ in our organisation?

“Red flags”

The Parker review also contained a “red flags” section. For example:

  • Vague terms like “fit” or not being the right “type” are used to describe why a potential candidate may not be appropriate, without sufficient objective and detailed supporting evidence being given and tested.

  • Diversity programmes have been implemented in the past but not delivered results.

  • Members of the executive management team do not sponsor or mentor any people of colour within the organisation.

  • The Human Resources team or executive recruitment firms indicate that there are not any qualified minority ethnic candidates available to fill a vacancy.

There are other potential red flags, and whilst their presence does not mean definitively that there is a problem, they do warrant further investigation.

Examine your diversity and inclusion strategy

Now is a good time for organisations to reflect on their diversity and inclusion strategy and ask some probing questions:

  1. Does every member of the Board, middle management, HR and others in the workforce understand the commercial and moral case for having a diverse business and, in particular, diversity amongst the power structure?

  2. Is the diversity and inclusion strategy genuinely producing meaningful change? And how is the organisation measuring change and success?

  3. Is the strategy properly embedded in the organisation and is the business doing more than simply the quick wins of unconscious bias training, which some argue is not effective and can lull an organisation into a tick box mentality.

Many of our clients are embarking on racial equality audits, in which they review everything from culture to policies, values, training, recruitment, retention, work allocation and promotion prospects. Such reviews can be carried out using focus groups, one to one interviews, surveys as well as a desktop review of records and policies. For more information contact Shehnal Amin.

What else can employers do?

In her Black Lives Matter blog written in the aftermath of the killing of George Floyd, Shehnal Amin listed four things that employers could do:

  1. Talk to your employees
    Everyone is impacted by what is happening, irrespective of their race, ethnicity or nationality. Employers should connect with their employees, acknowledge what is happening and the fact that employees will no doubt be impacted by the movement.

  2. Give diversity a real voice within your organisation
    Examine your corporate values and consider how policies or decisions may impact those from ethnic minorities disproportionately - and involve ethnic minorities in those conversations.

    Review your training on diversity and unconscious bias, and actively promote an environment where employees feel empowered to speak up about racism. But be mindful that training alone is not sufficient and avoid simply paying lip service and setting up training as a tick box exercise.
    The commitment to tackling racism must be embedded into the ethos of your organisation.

  3. Review your recruitment practices
    Discrimination at the point of recruitment is an immense barrier preventing people from ethnic minorities even getting their foot through the door and is of course unlawful under the Equality Act 2010.

    Be mindful that even if you are not “actively” discriminating, there may be subtle unconscious bias, where you decide that someone might not “fit in” to the organisation because they have not shared the same experiences, which could constitute discrimination.

    Consider your recruitment practices, and how you can eradicate bias at the point of recruitment, whether that is through accepting name blind CVs, using diverse interview panels or otherwise.
    Broadening the diversity of your workforce can only bring positive outcomes for employers, with heightened creativity, innovation and empathy, as you’ll have input from a heterogenous group of people with wider perspectives and experiences.

    An organisation which accurately represents the society that we live in will be an attractive one to work in. This goes beyond statistics. It’s about ensuring that, culturally, your organisation is aligned to the reality of the population.

  4. Take concerns seriously
    Where concerns about racial prejudice are raised, take these seriously and investigate. There cannot be a clearer demonstration of an issue being taken seriously than an employer properly dealing with allegations or concerns, promptly investigating them and ensuring that the individual feels heard, and any issues are addressed.

    Finally, the Government’s Commission is expected to report by Christmas, but whilst we await its output and as demonstrated above, there are plenty of positive steps organisations can take in the meantime.

If you require further information about anything covered in this blog, please contact Maria StraussShehnal Amin, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2020

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