Civil Fraud Quarterly Round-Up: Q1 2021
Equality and diversity training initiatives have received a considerable amount of negative attention recently. In December 2020, the government announced its intention to scrap unconscious bias training for civil servants. Since then, there have been press reports of senior managers allegedly claiming that unconscious bias does not exist and the training is just ‘virtue signalling’ and a waste of money.
So does this mean employers should now bin their diversity training? I don't believe so.
We have seen progress in workplace equality, but there is a long way to go. Discontinuing or failing to put in place training means losing any potential benefits of the training and risks sending the message to staff that the business is not committed to having an inclusive workplace. This can drive talented employees away, or deter candidates from applying for roles in the first place.
Increasingly, large organisations in the UK and abroad are committing to taking significant steps to improve equality. One such step is for businesses to make their custom conditional on suppliers meeting certain diversity requirements. See, for example, this open letter recently issued by Coca-Cola to the law firms on its panel in the US. Those firms will need to step up if they do not wish to lose a valuable client. Training and an increased awareness of the issues around diversity and inclusion will doubtless be an important factor in client retention.
A lack of training can also leave employers vulnerable in their defence of any discrimination claims. When assessing a company’s defence to such claims, employment tribunals will consider the steps taken to prevent discrimination. Is there an equal opportunities policy in place? Has the employer raised awareness of the policy, including through training, and how is it enforced?
It is not just a tick-box exercise, however, as was demonstrated in February’s Employment Appeal Tribunal decision in Allay (UK) v Gehlen, which criticised the employer’s outdated training programme as being ‘stale’. The problem in that case was that the training was provided just once, several years before and had not been refreshed, nor its effectiveness assessed.
Unconscious bias training aims to increase awareness of unconscious bias and its impact on people with protected characteristics. The training is often used in the workplace to educate workers on this bias and to reduce discriminatory behaviour and attitudes (thereby also reducing the risk of discrimination claims against the employer).
A report published by the Equality and Human Rights Commission in 2018 found that unconscious bias training is effective in raising awareness and can be effective in reducing implicit bias, but it is unlikely to eliminate it completely.
As an employment lawyer, I have experience in both attending and providing unconscious bias training. When I took part in the training, I was surprised by the results. I naively thought I wouldn’t have any biases, but the training made me realise that most people have biases, albeit often not knowingly. However, if we are aware of them, we can work to reduce them and the impact they have.
A criticism of unconscious bias training is that it can isolate some people (most often white men), making them feel attacked and even reinforce the prejudices they may hold. We have also seen the emergence of ‘anti-woke’ organisations alleging that employees need protection from diversity initiatives of this type.
Unconscious bias training is not a magic pill that will eradicate discrimination or make an employer ‘claim proof’. Its main aim is to raise awareness. Certainly participants of the training sessions I have given have affirmed that their eyes have been opened to some of their biases and that, having seen things from a different perspective, they would try to be more thoughtful in future. That in itself is a big step forward and one that should not be underestimated.
The removal of unconscious bias training would be a step in the wrong direction, but employers should review their diversity and inclusion training and refresh it if necessary, ensuring that it is part of a wider programme of measures, supported from the top, to help achieve workplace equality.
Nadjia has versatile experience supporting corporate and education sector clients as well as senior executives in a broad range of employment law matters.
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