Legal Update by Tariq Sadiq
The recent tragic death of George Floyd and the Black Lives Matter (BLM) movement has highlighted the need to tackle race discrimination in the workplace. Many businesses both in the UK and worldwide have made public statements reinforcing their commitment to equality and the BLM movement. Just as the #MeToo movement raised awareness of sexual harassment and discrimination in the workplace, recent events should be the catalyst for a renewed emphasis on preventing and tackling race discrimination and ensuring that BAME employees are supported in the workplace.
Employers are likely to see an increase in the number of race discrimination complaints because of the renewed emphasis on racial equality. These present various challenges for employers to deal with. How should an employer deal with an employee who has made statements on social media? Can an employee be disciplined for attending a rally? Can an employee be disciplined because of his or her actions outside the workplace? How should an employee deal with a generic and/or anonymised complaint about race discrimination in the workplace? These are all difficult questions for employers.
Conduct outside the workplace
Recently, we have seen employers taking disciplinary action against employees whose conduct outside of work breaches their policies and/or adversely impacts upon their business. For example, in the US:
Often the employer’s response will depend upon their social media/disciplinary/equal opportunity policies. Conduct outside the workplace which fundamentally conflicts with these policies or brings the employer's business in disrepute justifies disciplinary action.
Each case will turn on its own facts, but employers should consider the following action points when dealing with complaints regarding conduct outside work including:
General points of action
Employers should also consider the following general action points in light of recent events including:
Dealing with general complaints of race discrimination and anonymous complaints
General complaints about an employer’s discriminatory culture or practices which are not specific, should still be investigated.
Employers should consider exploring the allegation with the complainant in more detail to enable a full investigation to be carried out. If that is not possible, a more general cultural investigation might be appropriate to discover any truth behind the allegations. An internal investigator from an outside department could be appointed to speak to a small group of employees on a confidential basis to find out their experiences, or a survey or an anonymous phone line could be used to obtain further information. Alternatively, an external investigator might be appointed for the same purpose.
Employers face difficult challenges when dealing with anonymous complaints. They may understandably be cautious and concerned about the source of the complaint particularly when it is not clear who/where it has come from. This does not mean the complaint should not be taken seriously and potentially investigated. Contact may be made with the individual despite their anonymity and the complainant may then be willing to speak provided the employer protects their confidentiality. If this happens, an impartial person will need to be identified to investigate the allegations preferably an external investigator. The complainant will need to be assured that their anonymity will be protected and any victimisation will not be tolerated.
The above actions points will not only increase employee morale and productivity, it may also assist in defending claims for race discrimination or harassment.