We are living in rather uncertain times with political and socio-economic unsteadiness prevailing throughout our commercial world. Consequently, employment prospects are never less certain than they were pre-2007/8 and the financial crisis.
Nevertheless, we also live in a progressive and, some might argue, enlightened world where our individuality is protected by the laws of the land.
Diversity in employment has become a buzz term and employers are keen to display their ‘all-welcome’ approaches to recruitment coupled with anti-discrimination credentials. A rather cynical argument could be that this is no more than good financial sense because ‘Stonewall Champion’, ‘Investor in People’ or ‘Remploy Recruiter’ makes for a good PR banner on corporate stationary. However, just how equal do employers really see us?
It has been nearly 6 years since the implementation of the Equality Act 2010 in the UK and its umbrella anti-discrimination provisions aimed at protecting our rights in employment. The provisions are wide in scope and cover employment practices across the spectrum from job advert, through employment, to post-termination. Our individual characteristics are protected and we have legislated rights which we can stand up for.
Herein lies the dichotomy… Just how far are we prepared to go to protect our rights? At what stage do we step onto the proverbial soap box and proclaim our self-actualising motivations? Perhaps more insidiously – when do we keep quiet about our differences in order to achieve a goal of realising our dream job?
James Gower, writing in the Guardian in 2015, describes how career advisers told him to hide his cerebral palsy disability on job applications. He discusses research conducted by greatwithdisability.com that found 77% of disabled applicants worried about disclosing their disability on a job application. Why fear when section 20 of the Equality Act 2010 places a positive obligation on employers to provide ‘reasonable adjustments’ for employees who declare a medically recognised disability? This is all well and good but you have to get the job first! The cost of reasonable adjustments and aversion to placing themselves at risk of litigious claims may dissuade employers from engaging disabled applicants – An employer’s inclusive ethos may take a back seat to financial and liability risk-aversion.
Hidden or invisible disabilities are perhaps arguably more difficult for an employer to recognise as being inhibitive for an employee once a disclosure has been made. This is something Starbucks, the US coffee chain, recently found to their financial and reputation cost, when they mistakenly accused a dyslexic worker of falsifying report documents at work. An employment tribunal found that the coffee giant had failed to make reasonable adjustments for their employee. The potential cause of the problem: lack of training. Dr Kate Saunders, CEO of the British Dyslexia Association, said: “Many dyslexics are struggling in the work place with very high levels of anxiety, because employers do not have the training or the awareness to make adjustments for them.”
There is also a fear that disclosure in the workplace that can actually lead to greater problems for employees rather than entrench the protective shield of the Equality Act 2010. Protecting oneself from discrimination in the workplace is a difficult needle to thread for those who identify as Lesbian, Gay, Bisexual or Transgender. Stonewall, the LGBT charity, received responses from over 60,000 employees in the UK in 2016 regarding the treatment of LGBT employees in their workplace. They asked respondents ‘Are lesbian, gay and bi people comfortable disclosing their sexual orientation at work?’ The results are quite illuminating in that 42% were not comfortable disclosing their sexual orientation to colleagues and 48% were not comfortable disclosing to managers and senior colleagues in all circumstances.
There are obviously cultural and sociological negative factors that still prevail in the workplace that inhibit disclosures of sexual orientation. This is not the end of the argument though: A recent report by Conservative MP Alec Shelbrooke and Dr Mark McBride-Wright, Chair and Co-founder of industry network group InterEngineering, estimated that homophobia in one sector alone costs the UK economy over £11.2 billion a year. They discovered that homophobic bullying and outdated attitudes place pressure on LGBT members of the engineering industry to remain in the closet leading to lack of progression in the sector. Their April 2016 report, published in Gas International, includes discussions by Lord Browne of Madingley, a former chief executive for BP: “As a graduate trainee engineer at BP in the 1960s, it was immediately obvious to me that being gay in business and most definitely in the oil business, was unacceptable.’ The consequences of failing to create an inclusive work environment shows that when people are not comfortable bringing their whole selves to work they do not engage and productivity suffers as a result. We return to the root cause – lack of understanding and diversity training.
Case law decisions highlight how large organisations cannot afford to merely provide lip service to equality legislation and a shift towards embedding diversity training is of paramount importance, not only from a protective stance but a fiscal one too. In Daw v Intel Corporation UK Ltd.  EWCA Civ 70, a stress at work negligence case, it was held that the employer, a renowned international IT technology company, failed in their primary duty to provide a ‘safe system of work’ resulting in mental health issues for the claimant. The court, dismissing the defendant’s appeal’ highlighted how Intel easily covered the claimant’s workload when she went off sick but failed to provide reasonable adjustments to her workload beforehand.
In Majrowski v Guy’s St. Thomas’ NHS Trust  UKHL 34 the defendant brought a successful vicarious claim against their employer for harassment and victimisation suffered at the hands of a line manager on the grounds of sexual orientation. Both of these cases highlight the need for employers to act sooner and embrace proactivity in relation to diversity training. Interestingly, both of these cases were brought in negligence in the civil courts rather than an employment: A more costly exercise on the claimant’s part may indicate a personal need to fight harder for their individual rights.
Standing up for employment rights when faced with discriminatory barriers is not easy. Just how militant does one need to be to get the message across? How far do we really need to go to ensure sunlight reveals the cracks in certain employers’ facades? Prevention is undoubtedly better than cure and if equality and diversity are to be truly embraced then a strategic rethink by employers is needed. Greater investment in staff training and cultural change should aim to break down barriers that can lead to greater productivity, less negative publicity and a protected workforce. This is especially important as we seek to carve out a new direction for our industries over the coming years and attempt to build trading links with new post-EU Brexit partners – our nation’s employers need to set an example for all our futures.
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