For years, the discussions surrounding workplace culture followed similar lines, whereby Boards would nod sagely at directives for greater diversity and inclusion and then a token improvement would result and they would all congratulate themselves heartily for a job well done.
The fact that these marshals of change were probably all white, middle-aged men typified the ignorance. But high impact movements such as #MeToo could not fail to gain attention.
Employers can be under no illusion now, as to their duties to provide and promote equal and diverse workplaces and, particularly since #MeToo, employees are also more aware of their rights. Legislative measures have also been introduced, including gender pay gap reporting, which has been mandatory for larger employers since 2017. More recently, there have been several high-profile Employment Tribunal cases that have further placed a spotlight on the issue of workplace culture and question how far employers’ attitudes have actually changed beyond “ticking the boxes” in relation to new legislative measures? We have seen Stacey Macken succeed in her claim against BNP Paribas for sexual harassment and unequal pay, Samira Ahmed bring a successful equal pay claim against the BBC and, more recently, Adrienne Liebenberg has claimed that her previous employer (DS Smith) unfairly dismissed her and subjected her to sex discrimination. These relatively high-profile examples may well mean that both employees and employers reconsider the impact of the culture of their workplace, and whether potentially discriminatory practices remain.
Whilst a successful Employment Tribunal claim provides a reactive remedy for those who have suffered discrimination in the workplace, for real change to take place, employers need to prevent discriminatory practices before they arise. To do so, employers need to better understand the root cause of toxic cultures and instil measures to reduce the risk of claims arising in the first place. Employers potentially have the benefit of the statutory defence against claims of discrimination within the Equality Act if they can demonstrate they took “reasonable steps” to prevent the discrimination arising in the first place. This means that, whilst broadly employers will be liable for the acts of their employees in the course of employment, an employer would not be vicariously liable for the acts of an employee, who goes against the reasonable steps the employer has taken to stop employees from discriminating against one another. This means it is in an employer’s interests to address issues head on that may arise from its workplace culture and to anticipate the potential risks that could arise from its particular working culture.
Ms Macken was found to have been subjected to direct sex discrimination and victimisation by her employer, BNP Paribas. In particular, Ms Macken was often belittled by managers responding with “not now Stacey”, so frequently it became a catchphrase. There was also a culture of crude remarks and, when Ms Macken complained, a witch’s hat was left on her desk. With the benefit of hindsight, such remarks and behaviour may seem an obvious environment in which discriminatory acts can breed and if BNP Paribas had turned its mind to the situation proactively, it may have been able to take preventative “reasonable steps”. Whilst it is fair to say that there have been very significant changes to the gender demographic of the working population in the past 50 years, the pace in which the cultures of some workplaces are catching up with that shift remains slow. As the recent cases demonstrate, some employers are still not doing enough to proactively take those reasonable steps, in order to prevent claims from arising in the workplace, particularly in those workplaces that remain male-dominated.
A central issue for many employers is the context of comments and behaviour as many describe comments as simply being “office banter”. For example, Ms Liebenberg claims that she was subjected to sex discrimination and dismissed because she did not engage in football-related conversations and did not attend drinks after work. DS Smith, on the other hand, states that Ms Liebenberg’s dismissal was due to poor performance. There is a fine line between, on the one hand, encouraging a collegiate atmosphere that boosts staff morale and therefore productivity and, on the other hand, facilitating an environment in which certain sections of the workforce feel excluded, by reason of any protected characteristic (not just sex). Whilst we await the publication of the Tribunal’s judgment in Ms Liebenberg’s claim, her witness evidence states that her football fan manager often had football matches on in the background during meetings and would carry out “football chat”, leaving Ms Liebenberg (a non-football fan) feeling isolated. Whilst the Tribunal has yet to publish its finding, the case brings workplace culture into question and how far “office banter” may still be a barrier to equality.
A lack of diversity in management structures (not just relating to gender, but all other protected characteristics) may also inadvertently lead to a culture in which one category of employee feels more uncomfortable than others. To further encourage diversity, a proactive employer should consider the demographic of senior management, to ensure that the diversity of its workforce are adequately represented. Or, where that is not possible, to introduce workplace forums or other opportunities for employees from minority groups, to raise issues in a manner that provides them with confidence that such complaints will not have negative repercussions. Employers are often surprised by the difficulties that employees face - for example, perhaps Ms Macken’s employer would have been able to address her concerns if it was aware that some of the language used by the male-dominated management team was causing her to feel uncomfortable. Equal pay remains a key issue and Ms Ahmed’s recent claim may mean that more female employees feel able to challenge their employer’s decision making in relation to their pay. Ms Ahmed was found to have been doing “like work” in her presentation of the BBC’s Newswatch programme, compared to Jeremy Vine’s presentation of Points of View. However, she was paid approximately £400 per episode, compared to Mr Vine’s £3,000 per episode. The BBC was unable to demonstrate a “material factor” other than gender, to explain the difference in pay. It is now three years since the #MeToo movement and, whilst there have been some changes for the better in many workplaces to encourage gender equality, more needs to be done. There have been a number of recent Employment Tribunal cases that address the issue of gender equality and that perhaps give employees the courage to bring more claims. It’s likely that more women now feel better empowered to challenge workplace culture, and it follows that employers should also take this issue seriously. It’s therefore crucial that employers take proactive steps to reduce the risk of successful claims being brought against them and to be an example of a workplace that gets the balance right. To benefit from the reasonable steps approach in the Equality Act, what will be regarded as ‘reasonable’ will depend on the individual circumstances of each employer. For many, an example would be a comprehensive Equality and Diversity policy, which is communicated to employees by way of training and regular reminders and breaches of which are actively enforced by taking disciplinary action.
Where a workplace has a more entrenched culture, where certain behaviours and “banter” have previously been acceptable, the employer will need to send a clear message of what standards are now expected and acceptable, alongside the introduction of a comprehensive policy. Employees should be trained on that policy and disciplinary action taken against those who do not comply with these standards. If such action is needed, it would serve as a warning to others. It is of note that, despite their legal claims, both Ms Macken and Ms Ahmed continue to work for their respective employers. This may be an indication of a newfound faith that genuine change in workplace cultures is yet possible. It is fair to say that public attitudes have also changed and the negative publicity that successful discrimination claims from employees brings to employers, like the BBC or BNP Paribas, could mean that taking steps to prevent such claims becomes increasingly critical for businesses.
First published in the HR Director, July, 2020. Reproduced with permission.
Rebecca Berry