HR talking point: Why equality, diversity and inclusion training matters

Author: Stephen Simpson

XpertHR principal employment law editor Stephen Simpson argues that the blithe devaluing of equality, diversity and inclusion (EDI) training by senior government figures fails to take account of the practical and legal benefits that such training brings for employers, especially if they are facing an employment tribunal.

Liz Truss, the current frontrunner to become our next Prime Minister, is in favour of scrapping diversity and inclusion measures in the civil service, such as the existence of diversity officers and the provision of unconscious bias training.

She has had backing on this from several of her high-profile supporters in the Government, including Suella Braverman, the Attorney General for England and Wales, and Jacob Rees-Mogg, the Minister for Brexit Opportunities and Government Efficiency.

The move to scrap EDI jobs is part of the plan to cut civil service spending, which has been dubbed the "war on Whitehall waste", and tackle what they describe as "left-wing" and "woke" sensibilities in the public sector.

The business case for diversity

However, far from reducing costs, the removal of diversity and inclusion measures actually risks costing employers money.

As our guide to making the business case for diversity and inclusion explains, the business case for diversity and inclusion measures is stronger than ever.

According to Umbrella HR's CEO Denise Keating, who wrote the guide for XpertHR, "there is a wide evidence base that diverse organisations outperform industry peers on profitability, while organisations that are not diverse are failing to attract and retain talented people, suffer commercial losses, lack creativity and innovation and cannot diverge into more diverse markets".

Legal implications of EDI training for employers

From an employment law perspective, EDI training can complement robust diversity and inclusion and anti-harassment and anti-bullying policies. If properly communicated and implemented, these policies reduce the risk of bullying and harassment in the workplace.

The absence of EDI training also puts your organisation at a disadvantage when facing an employment tribunal claim for discrimination.

Your organisation can avoid liability for acts of harassment committed by staff if it can show that it took reasonable steps to prevent those acts. A strong "reasonable steps" defence often involves showing that effective and timely EDI training has been delivered within your organisation.

When assessing the strength of a claimant's case, two of the key questions your legal team is likely to ask are:

• Do you provide staff and line managers with training on equality, diversity and inclusion?
• If so, when did the alleged perpetrators of the harassment last undertake this training?

The weaker the answers from the HR department and your senior leaders are, the more likely it is that your organisation is going to have to settle the case or, if it does ever get as far as a tribunal hearing, lose the case and have to pay compensation (which is uncapped for discrimination).

When EDI training goes wrong

That is not to say that EDI training always runs smoothly, as demonstrated by two of the employment tribunal decisions we report on this month.

In Isherwood v West Midlands Trains Ltd, a train conductor who was participating in an internal diversity and inclusion webinar on "white privilege" was overheard by participants swearing and making sarcastic comments about "black privilege" in Ghana.

His behaviour resulted in his dismissal, which the employment tribunal found to be unfair. In essence, the tribunal accepted that the employer failed to consider the possibility that a lesser sanction, such as a warning, and engagement in further equality training would have been a fairer outcome than dismissal.

In Bradbury v Sky In-Home Service Ltd, an inclusion advocate was found to have committed direct race discrimination against a colleague who identifies as Latino by insisting that she must have suffered oppression because of her race and the colour of her skin.

The employment tribunal decided that the claimant in this case was subjected to a "form of stereotyping".

Despite these unfortunate instances of EDI training going wrong, the two cases are outliers. The benefits for employers of providing EDI training to staff, particularly line managers, far outweigh any drawbacks.