Black Lives Matter – what do employers need to be aware of?

The violent death of George Floyd in the US on 25 May, following police arrest outside a shop in Minneapolis, has sparked mass protests and debate around the world. And as many businesses begin to reopen after lockdown, or contemplate bringing employees back into the workplace, there has been reflection from employers and employees alike about the #BlackLivesMatter movement and the steps that need to be taken to try to address racial inequality in the workplace.

Where to start

As a minimum, every business should have a clear policy, effectively communicated, which explains the organisation’s expectations of what is acceptable behaviour in the workplace in terms of equality and anti-discrimination, and the consequences if these expectations are not met. It is best if these policies come from the very top of the organisation and are actively implemented, which may include providing specific training for managers (and potentially for all staff).

There is a growing understanding that discrimination law in this country provides an important, but minimum, level of support and protection. The Equality Act 2010 prohibits race discrimination in the workplace (and colour, nationality, ethnic origin and national origin are all included within the definition of race).

There are four main types of unlawful discrimination: direct, indirect, victimisation and harassment. Someone does not necessarily have to have a protected characteristic themselves in order to face unlawful discrimination, as it can also occur due to the victim’s association with another person, or because the perpetrator perceives them to have a particular protected characteristic.

Where an employee discriminates against or harasses a colleague at work, the employer will be vicariously liable for the discrimination unless reasonable steps have been taken to prevent the conduct from taking place (see our article on vicarious liability here). This is one reason why having an effective policy and ensuring staff are aware of it is so important, because it can form part of an employer’s defence against a claim.

Employees and workers are protected against unlawful discrimination. Job applicants are also protected (as are ex-employees in relation to things like references) and so the way that staff are treated, and the written and unspoken policies and practices affecting them, need to be considered right from the stage when a job role is first advertised through to when employees exit the business.

What practical issues might employers have to deal with?

• Many employers have already received employee requests for time off to attend demonstrations, some of which have been difficult to manage when combined with the effects of the pandemic. If an employer can be sympathetic to those who wish to join the demonstrations, and can find ways to support employees in exercising their right to join protests, then that will be helpful where possible – but it will of course depend on the circumstances.
• Organisations which encourage people to come forward with concerns and complaints will be those which are best equipped to address issues as they arise. If any instances of racism are identified, they will need to be dealt with quickly and effectively.
• Employers need to be aware that not all racism is conscious or overt, and it is important to try to address any subtle or unconscious acts of discrimination.
• A good way of identifying potential improvements is to listen to and encourage staff feedback. It may feel awkward initially, and there may be concerns about not wanting to inadvertently offend somebody, but creating a safe way for staff to express their concerns and ideas, either in person or through digital means, helps build trust and the likelihood of issues being raised in a constructive way. Employees should not be forced to engage or come up with solutions for the business, but voluntary engagement can be encouraged through outlining the reasons for seeking feedback and what the outcomes will be.
• As a result of the #MeToo movement, more women have been prepared to speak up about cases of sexism or harassment, including historic issues, and it seems likely that a similar effect will be seen with complaints of race discrimination as a result of #BlackLivesMatter. Employers will need to take such complaints seriously and deal with them effectively, but sometimes lapse of time can make it difficult to properly investigate, so this will require a sensitive approach.
• Another development from #MeToo was also the criticism of so-called ‘gagging clauses’ in NDAs or Settlement Agreements (as we covered in our article here). We would not be surprised if similar concerns are raised about whether race discrimination issues may have been swept under the carpet by employees being required to keep their experiences confidential.