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Jessica  Clough
Jessica Clough,
TRAINEE CHARTERED LEGAL EXECUTIVE
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Creating an inclusive workplace culture
05 March 2019

This week we discuss what factors can influence the inclusivity and diversity of our workplace cultures and ask how can we create a fair and unbiased working environment allowing all to have the chance of achieving their potential? 

Engaging employees and creating workplace cultures that allow everyone to achieve their full potential can mean the difference between success and failure for a business. But have you ever stopped to think how our hidden drivers negatively influence our workplace cultures? 

What are hidden drivers?

Our hidden drivers – or “unconscious biases” – can negatively impact workplace decisions from recruitment to retention, leading to demotivated teams, grievances and eventually, as we will discuss, employment tribunal claims.

In this article, we look at three employers in the news recently which were affected by unconscious bias in very different ways.

Hastings v Kings College Hospital NHS Trust

Mr Hastings is black and has Caribbean heritage. He was an IT Manager at the Trust and was accused of assault during an incident with a white male contractor. Mr Hastings claimed he had been subjected to a racist tirade from the contractor and that the contractor was the aggressor in the situation. However, the Trust failed properly to investigate what had happened during the disciplinary process and treated Mr Hastings as the aggressor, due to preconceptions about his temperament on the basis that he was a black man – even though the CCTV footage backed up Mr Hastings’ account of what had happened.

The Employment Tribunal found that the disciplinary investigation had been tainted by unconscious bias and that Mr Hastings had been treated less favourably because of his race.

Mr Hastings is reported to have said that although his feelings were hurt by the racist abuse the contractor had subjected him to, he was far more hurt by the treatment he had received from the Trust, in spite of having worked there for nearly 20 years. 

JWT London

In this case, the new Creative Director of JWT (a top advertising company), who was a gay woman, announced that she wanted to “obliterate” the agency’s reputation for being mostly straight, white men and to “challenge the male status quo in creative industries”.  

When 5 white male employees asked what this meant for them, they were swiftly made redundant - even though one of them was an award-winning creative director.

The dismissed employees accused JWT of “swapping one kind of discrimination for another” and are currently bringing discrimination claims for racism and sexism against the company. 

Furlong v Cheshire Police Force

Cheshire Police force recently lost a sex discrimination claim brought by a white, male, heterosexual police recruit who was rejected by the force whilst in the midst of a diversity drive, even though he was an “exceptional” candidate. The Tribunal found that Mr Furlong had been discriminated against on the basis of his race, sex and sexual orientation. In their judgement, the Tribunal said that positive action should only be applied to distinguish between candidates who were equally well qualified for the role.

Cheshire Police are believed to be the first organisation in the UK to be found guilty of using positive action to discriminate by deciding not to recruit a high achieving recruit, in place of other under-represented candidates.

Both JWT London and Cheshire Police are examples of employers wanting to promote underrepresented employees.

Under the Equality Act 2010, employers are allowed (but not required) to use “positive action” (also known as “positive discrimination”) to assist protected groups which are under a particular disadvantage or are disproportionately under-represented. However, positive action can only be used in limited circumstances in recruitment and promotion situations, it should not be used to reject more highly skilled candidates or dismiss existing employees in a discriminatory way.

How do we build an inclusive culture? 

The decisions that we and our people leaders take can often be driven by hidden thoughts and beliefs – our “unconscious biases” - which may have impacted on an organisation’s culture for many years. Allegations of unfairness or being misconstrued can also be leveled at organisations. Developing a strategy of inclusion and diversity which has at its heart fairness and openness is key.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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