As the world continues to adapt to a new way of life in the wake of the Coronavirus pandemic, employers have been kept busy by the need to ensure that, despite the upheaval to everyday workplace norms, their actions towards employees are lawful and proportionate. The situation is a fluid one; and the approach of employers to maintaining a happy workforce must be constantly revised.
Recently, the Woolf Institute’s Diversity Study of England and Wales in which nearly 12,000 people were surveyed found that 76% of employees work in a shared office that is ethnically diverse. The study highlights that the opportunities for forging relationships in the workplace are important in breaking down misconceptions about employees’ cultures, ethnicities and religions. But if the vast majority of us are no longer in the workplace five days a week or in some cases at all, the question arises: How can we maintain the same levels of tolerance and understanding towards colleagues, if interaction between employees is drastically reduced for the foreseeable future?
This is precisely what the Woolf Institute warns could be an unintended but serious consequence of the pandemic. It suggests that an increase in racism and prejudice is possible if working from home becomes prolonged. To put a predicted increase into context, one survey suggests nearly a third of people have already directly experienced, or at least viewed, some form of racial discrimination in the workplace in the UK. Another reveals that some one million people have suffered discrimination because of their religion.
Such an upward trend could have direct consequences for employers in that a rise in discrimination and harassment within virtual workplaces will by association lead to an upward trend in discrimination and harassment Employment Tribunal claims by affected employees against their employers for the actions of another employee for whom they are vicariously liable or for the actions of the employer itself.
Race and religion or belief make up two of the nine protected characteristics in the Equality Act 2010 (the “Act”), giving employees with these characteristics protection in law against discrimination and harassment. Direct discrimination might be passing up an Asian employee for promotion to a team of white senior management executives because they ‘wouldn’t fit’. An example of indirect discrimination in a work-from-home culture could be a policy that requires all employees to show their entire head on a Teams call. This would have the effect of putting employees who wear headgear for religious reasons, such as a hijab, at a disadvantage and so be unlawful in the absence of a defence of proportionality. The Act also prohibits harassment, which is unwanted conduct that has the purpose or effect of violating a person’s dignity; or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. Consequently, forms of overt racist language or religious-based abuse, such as mocking the skin colour of a colleague, or their religious practices, could give rise to such a claim.
To address this potential crisis, the Woolf Institute notes that there should be a shift in the focus of tackling inequality towards promoting diversity and inclusion. Employers should review their policies relating to flexible and virtual working arrangements to ensure that any provision, criterion or practice that they have in place does not indirectly discriminate against someone because of their race or religion, or that any such policy does not inadvertently increase the risk of discrimination or harassment occurring in a working from home environment. Making all employees aware of these policies and revisiting your equal opportunities and anti-harassment training in light of the changed working from home environment is also important, particularly if employers want to be able to make use of the “Reasonable Steps” defence when defending discrimination proceedings.
Championing employees who may be the only representative of their own ethnic, national or religious group, (“workplace solos”) is recommended by the Woolf Institute, which adds that they are well-placed to challenge stereotypes and establish new norms of social mixing. However, employers should ensure that employees consent to this and that they are not embarrassed to be singled out as being different to their colleagues in this way or feel compelled to agree to this, if they really rather wouldn’t. It can be a lot of pressure to place on them to effectively be the sole role model and ambassador for all people of their specific race, ethnicity or religion. One in eight Muslim workers, for example, are workplace solos. Employers should identify that working with them to establish workshops or training programmes via Teams to educate colleagues is likely to have a beneficial effect both in terms of the accuracy of the information being provided and fostering a feeling of inclusion among workplace solos.
With the current lack of social mixing at work there is inevitably a loss of informal communication between colleagues, such as during lunch or in breakout rooms. However, there is no reason why employers cannot and should not organise remote group social gatherings, perhaps incentivising employees to do so, for instance through providing lunch takeaway vouchers. Work quizzes, too, are an easy way to bring colleagues of different backgrounds together.
With increased working from home, the signs of a fractured and siloed workplace are harder to spot. Employers should also be active in spotting signs that certain employees are being isolated because of their race or religion, whether intentionally or not. Potential signs of this may include a drop off in their participation or productivity and output. Anonymous diversity audits could help in this respect, in order to identify where religious employees or those from Black and Minority Ethnic backgrounds are being prevented from exploring opportunities to develop.
If a situation does arise employers should take such concerns around potential racism and prejudice seriously and swiftly address them. The lack of possible corroboration of an alleged incident of discrimination or harassment because it has not occurred in a physical office environment in front of other witnesses should not be an excuse to downplay or fail to investigate thoroughly such allegations. This can have the additional unwanted effect of demoralising those employees at risk because of their race or religion. Instead, dealing properly with allegations and investigating them thoroughly and fairly is the correct path to take.
While there may be many more options available to employers to help minimise the risk of successful discrimination and harassment claims being brought by employees, it is helpful to adopt a common sense approach to prevent a Covid-related regression (and thus falling foul of the Act) when it comes to racism and prejudicial views on the basis of religion or belief amongst the workforce, given the significant progress that has been made in recent years.
