Key takeaways

• The report supports Baker McKenzie's longstanding view (as set out in our Mind the Gap series) that employers need to take an evidence based approach to ID&E, using empirical, quantitative metrics.
• Employers want to shift the dial but are struggling to effectively do so, bombarded by the confusing terminology in the ID&E space and the legal complexities, particularly in relation to the limits of positive action, and recent developments on conflicts of belief.
• Government-curated or endorsed data and insights would give employers more confidence in their strategic choices.
• A clear and simple framework for understanding equality legislation is vital. The Inclusion Panel's report specifically mentioned Baker McKenzie's recent article on managing conflicts of beliefs. The report described this as "a much valued guide for employers that is endorsed by the Panel", and recommended that the EHRC produce something similar.
• Organisations should be empowered to put evidence at the heart of decisions around ID&E and be able to demonstrate through data that their ID&E policies and practices genuinely increase diversity of thought and experience, boost opportunity and belonging, and represent value for money.
• The report recommends that:
  • The government endorses a new framework which sets out criteria employers might apply to their ID&E practice for effectiveness and value for money
  • The government funds and develops a digital tool to allow employers in every sector to assess the rigour, value for money and efficacy of a range of ID&E practices
  • The EHRC clarifies the legal status for employers in relation to ID&E practice, with focus on the implication of recent rulings for HR policies and employers generally.

To discuss more about this report or your ID&E strategy more generally, please get in touch with your usual Baker McKenzie contact.

In more detail

A principles-based framework

The Panel concluded that the following principles-based framework would be most helpful for employers:

• Heterogeneous workplaces are beneficial:  Workforces made up of people from a range of backgrounds with a range of characteristics can result in improved problem solving, tolerance and a culture of positive change, and improved performance.
• Genuine diversity goes beyond visible diversity like ethnicity and gender: Employers should consider less visible diversity as part of a meaningful ID&E strategy, for example, socioeconomic and educational background, and problem solving style.
• ID&E decisions are rarely impartial: therefore decisions in ID&E should be rooted in evidence as far as possible and be context-specific.
• ID&E initiatives should be based on robust evidence: they should also be subject to ongoing scrutiny and regular review.
• Call out positive stories on ID&E: while inequalities and gaps should be highlighted, improvements should also be recognised and celebrated in the workplace.
• ID&E activities should be cost effective: employers should be satisfied that money is spent responsibly to ensure ID&E interventions are not a waste of employer funds.

Framework for employers

The Panel also proposed a framework for employers based on five criteria to consider when designing, implementing and evaluating good ID&E policies and practices:

• Gather evidence on ID&E metrics systematically and comprehensively – this will enable employers to identify context specific problems and help to identify where in the employment lifecycle issues are arising (for example, to pinpoint problem areas such as hiring, evaluation or promotion).
• Put evidence into practice: consult the data before planning your ID&E strategy. The report highlighted the example of diversity training, which employers are continuing to deliver despite evidence that the effectiveness is limited.
• Review interventions and processes regularly: this will enable employers to assess whether they are having the desired effect and to change their approach to make them more effective.
• Widen diversity of thought and experience: research has shown that high performing teams are "cognitively and demographically diverse", i.e., educational, functional and neurological diversity.
• Restore the importance of clear performance standards, high quality vocational training and excellent management: the need to recruit and retain employees with key skills should not be in conflict with steps being taken to improve diversity, however, in recent cases there appears to be a trend for employers focussing on the latter (diversity) at the expense potentially of the former (recruiting and retaining employees with key skills).  The report noted that employers should recognise that equality of opportunity may result in unequal outcomes which are not always a product of discrimination.