Key to ‘positive action’ success is taking staff on the journey, says D&I expert

A couple of weeks ago we published an Out-Law analysis piece setting out what we consider to be the priority areas for HR teams to focus on during the next 12 months. ‘Actions for UK HR teams in 2024’ includes a section dealing with various initiatives in the D&I space and we are raising it in this programme because we have seen a rise in instructions from clients asking for help in this area and, in particular, using positive action to avoid stalling on their D&I targets. Clients tell us that employees, investors and stakeholders are demanding change and they want the pace of that change to quicken up in 2024. 

The government has published guidance on positive action - that came out in April last year - and whilst helpful to a point, it is has its limitations. So, whilst it explains clearly the difference between taking positive action, which is lawful under the Equality Act in certain circumstances, and unlawful discrimination, it largely repeats what’s in the existing codes published by the Equality & Human Rights Commission. So, whilst the guidance is informative, and sends the right messages, a number of employers are still struggling to actually implement the changes they’ve mapped out in their D&I strategies. 

This is precisely the sort of work that Pinsent Masons’ D&I consultancy Brook Graham specialise in so let’s consider that. Earlier, I spoke on the phone to employment lawyer, and one of Brook Graham’s D&I specialists, Laura Starrett, about the work she has been doing with clients. She told me that key to success is clear communication with staff about what the business is trying to achieve:

Laura Starrett: “So, in these circumstances we tend to advise clients that, ultimately, employees need to be brought along on their journey, if you like, of positive action and that’s really about firstly securing their understanding and their empathy but also, secondly, offering them reassurance that all protected characteristics, and otherwise, so things like social mobility which isn't a protected characteristic, remains important and is valued. But it has to be communicated in a way that the workforce understands that at different times there will be different focuses on different diversity strands in order to really move the dial and keep up with the pace of change in their industry and with their competitors too.”

Joe Glavina: “You mention communication, Laura, which is obviously HR’s territory. What steps could the business take to streamline the communication side of things to get the messaging right?” 

Laura Starrett: “So there's a lot of challenges in this space but there are a lot of simple steps that organisations can take to address that. In most cases a simple statement confirming that following a review of the organisation's diversity data, it's clear that the business needs to take specific action to address disproportionately low numbers of minority ethnic individuals in senior leadership positions. Being able to say that to the wider workforce, that that decision is driven by objective data offers comfort to the wider employee population but, importantly, it also emphasises that there is a justification for that positive action measure to be implemented which means that it is lawful, it's legally valid, and that's important in case of any challenge from either an employee, or a group of employees. Also, it's worth pointing out that if the organisation has already engaged with a variety of D&I programmes but it's not having the effect, or the impact, that they wish then it's worth highlighting that in any comms piece as well. Again, it's all about bringing employees along on the journey. As part of that, if there are collaborative efforts with trade unions, or employee representative bodies, then that's also helpful too and, in fact, it's best practice because it enables you then in the comms to demonstrate that there has been this collaborative approach with the wider workforce and, therefore, it's more likely that it's going to land better and that you're actually going to get that sustainable cultural change that, ultimately, you're aiming to do.”

Joe Glavina: “You mention challenges from individuals or from groups within the business. In your experience, where do those challenges normally come from?” 

Laura Starrett: “We tend to see most of the challenges coming from white middle-aged men who are feeling under threat because there's a lot of attention on other protected groups and, ultimately, they are feeling that they still want to progress with their careers, and they're thinking about the individual impact for them. What I think is important is that it is still given a platform because, ultimately, we don't want to shut down the conversation, we want to engage with the conversation so that we're bringing everyone along on this journey, as far as possible. What I would say is, it's not necessarily helpful to get into heated debates because that isn't necessarily constructive, but you need to be able to have that conversation so that everyone is brought along on the journey and has a platform to air any concerns that they have and for those to also be addressed so that there's that collective approach then moving forward.”

Joe Glavina: “You say most of the challenges come from white middle-aged men. Why is that an issue.” 

Laura Starrett: “It is an issue because I think for many organisations the reality is white middle-aged men remain in the senior leadership positions and so if we don't bring them along on that journey the reality is that the pace of change will be much slower. They must understand the wider context as to why these positive action measures are so important because, ultimately, as well, they are in the driving seat in terms of turning the positive action measures into a reality in the long term and really moving the dial.”
Joe Glavina: “As you say, if you’re not bringing everyone along on the journey then you face the risk of challenges from within the business, from individuals and from groups, but also there’s the risk to the business’s reputation, potentially?”

Laura Starrett: “There's huge reputational risk in terms of not bringing everyone along on the journey and I think in reality, as well, it means that the positive action measures, and all the work that's been done and up to the point before the comms are released to the wider organisation, fall flat because they don't feel like it's been a collaborative approach which just means that it's unlikely that it's going to be as effective as it could have been. Also, reputationally as well, a lot of organisations are keen to highlight any positive action measures that have been implemented but, ultimately, you want to be able to report on the success of those measures as well in time. So, yes, there's definitely reputational issues at stake as well.”

I mentioned the team’s Out-Law analysis piece which sets out the key actions we think HR should focus on in the coming months, including in the D&I space. That’s ‘Actions for UK HR teams in 2024’ and we’ve put a link to it in the transcript of this programme for you.

LINKS
- Link to Out-Law article: ‘Actions for UK HR teams in 2024’
- Link to government guidance on positive action