Equality, Diversity and Inclusion: a case update including practical steps from an HR perspective

This article was originally published in an EDI supplement which was included with the ISBA Bursars’ Review on 21 October 2022

Issues in society are frequently reflected in our schools and the topic of equality, diversity and inclusion (EDI) is no exception. This article looks at EDI from a staff perspective. For detailed notes on issues of EDI and pupils, including reasonable adjustments for disabled pupils, please refer to our previous briefing notes which may be found in the ISBA reference library.

Background

A diverse and inclusive culture in a school can lead to better performance, increased employee engagement, and better recruitment and employee retention. Legislation relating to equality and employers has been in force for over 50 years.  Those of us who have been working in the sector for a considerable amount of time, will remember that the Equality Act 2010 (EA) was introduced as a consolidating Act, bringing together the various threads of legislation that had developed over time including the Sex Discrimination Act, Race Relations Act, and the Disability Discrimination Act.  As well as consolidating existing law, the EA makes discrimination unlawful in circumstances not covered previously and provides a single, legal framework with the aim of tackling disadvantage and discrimination.

The EA sets out the ‘protected characteristics’ in relation to unlawful discrimination which are: age, sex, sexual orientation, race, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief.  Linked to the issue of EDI, the Gender Recognition Act 2004 enables transgender adults to apply to the Gender Recognition Panel to receive a Gender Recognition Certificate (GRC). Successful applications who are granted a GRC are considered in law to be of their acquired gender. The EA and the protected characteristic of ‘gender reassignment’ is a separate law in this regard. In 2018 there was a consultation on the reform of  GRC’s; currently, there is no change in the law.

The EA is supported by Guidance and Codes of Practice from the Equality and Human Right Commission (“the Commission”), both in relation to wider obligations under the EA as well as specific guidance on the duty to consider reasonable adjustments in relation to claims for disability discrimination. This Technical Guidance, which is specifically written for schools, applies to the provisions in the EA  that were brought into force on 1 October 2010, and the extension of reasonable adjustments to include auxiliary aids and services that was brought into force on 1 September 2012. This is directed at the provision of services.  In relation to staff, the Code of Practice – Employment, was prepared and issued by the Commission on the basis of its powers under the EA.  It is a statutory Code which means the Code can be used in evidence in legal proceedings brought under the EA.  Tribunals must take into account any part of the Code that appears to them relevant to the particular proceedings.

To understand developments in EDI, legal framework and practical steps, it may be helpful to consider a recent decision of the employment tribunal.

Taylor v Jaguar Land Rover 2021

Claims for discrimination (whether direct or indirect) can often overlap with a claim for either harassment and/or victimisation.  The case of Taylor v Jaguar Land Rover in 2021 is a good reminder of how an employment tribunal will approach such a claim. This case was the first time, to the best of our knowledge, an employment tribunal considered the question of the gender reassignment provisions of the EA in relation to non-binary individuals.

The claimant, Ms Taylor, commenced working at Jaguar as an agency worker around July 1998 and became a permanent employee in June 1999.  As time went on, Ms Taylor was promoted and was found to be a very capable and quiet member of the team, and a bright engineer.

Ms Taylor did not choose to be overt about her sexual orientation in the workplace.  In 2017, Ms Taylor raised some questions with HR as to whether Jaguar had an Employee Resource Group (“ERG”) for LGBT+ employees and asked whether, if not, it would be possible to start one and whether there was HR guidance on how best to progress it.

Ms Taylor observed that there was no visible group representing the interests of LGBT+ people and said it seemed to be a small investment which could have a positive impact.  Jaguar at the time had around 30,000 staff in the UK.  In March 2017, Ms Taylor told Jaguar that she was transgender and thought herself to be on part of a spectrum,  transitioning from the male to the female gender identity. Ms Taylor had not told anyone else at work, although she was dressing in female clothes outside work. Ms Taylor sent an email stating that transgender was an umbrella term, and in her case, the precise word would be gender fluid.  She said she had no plans for surgical transition.

Suffice to say, communication regarding transition in work and wearing female clothes did not go smoothly and Ms Taylor was initially told to use the disabled toilets.  A number of inappropriate comments were made by staff (not all directed at Ms Taylor) but which could still amount to harassment.  Ms Taylor was insulted by other staff on the basis of her clothing and she was not provided with adequate support from HR.  The tribunal heavily criticised Jaguar’s lack of internal procedures and managers’ understanding of equality issues.

The law under the EA says in relation to gender reassignment,

“A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”

Ms Taylor had said that she had no intention to undergo surgery and a strict interpretation of the EA may result in an individual only gaining protection if they make, or propose to make, a change from either male to female, or vice versa.

The tribunal found that Ms Taylor was protected, despite not undergoing any surgery and having no plans to do so.  The tribunal also found that Ms Taylor was harassed, victimised, and suffered direct discrimination at work because of gender reassignment.  The decision, which is publicly available, is detailed.

The tribunal made it clear that they, “thought it astounding that there was nothing in the way of proper support, training and enforcement on diversity and equality until the Claimant (Ms Taylor)  raised the issue in 2017, bearing in mind how long the legislation has been in force“. The tribunal said they had not previously seen a wholesale failure in an organisation of this size in their collective experience.  Their view was that the outcome of the tribunal was a lesson to be learnt at the highest level.

The tribunal awarded £180,000 to Ms Taylor which included aggravated damages.  Aggravated damages (which are seldom awarded) were given because, in the tribunal’s words, of the egregious way Ms Taylor was treated and because of the insensitive stance taken by Jaguar in defending the proceedings. Jaguar agreed to appoint a Diversity and Inclusion Champion and to also commission a recognised diversity organisation to investigate diversity and inclusion throughout the company and produce a report, setting out the current position and the steps necessary for Jaguar to become a “standard setting organisation” in the diversity and inclusion field across all the protected characteristics.  The Jaguar website contains links to their Diversity and Inclusion Strategy for 2021-2026 and sets out the steps they have taken so far.

Practical Steps

The tribunal in the Jaguar case felt there had been a systemic failure in relation to EDI.  Whilst schools will not have a comparable workforce to the size of Jaguar, schools should consider what steps they can, and should, take to protect themselves in relation to EDI issues. The EA provides a statutory defence against a claim for unlawful discrimination in the employment tribunal.  This only applies if the employer is able to demonstrate that it took all reasonable steps to prevent the perpetrator from committing the discriminatory acts alleged.  This will likely include the use of policies, effectively implementing those policies with appropriate training, and encouraging and developing a culture of inclusion, diversity and equality.   Practical steps that a school may wish to consider might include:

• Have an effective and robust policy on equal opportunities and EDI. This should be supported by diversity and inclusion training of staff at every level. If staff are not well-versed in diversity and inclusion issues, training should help them be familiar and comfortable with terminology and the school’s obligations under the EA, with the aim of creating a culture with EDI as a focus.
• Review procedures for recruiting staff including applications received, shortlisting, and constructing interview questions. This may address avoiding potential areas of unlawful discrimination and emphasise the culture of the school in relation to EDI.
• As part of developing policy and culture, consider appointing an EDI representative at a senior staff level. This should be someone with authority to make decisions and lead on this issue for the school.
• Consider appointing a governor as a lead for EDI at board level who will support the EDI senior lead in school.
• Think about personal data. Staff have the right to keep certain information, such as their sexual orientation, confidential.  Staff may give their express consent that they are happy for their status to be known.  Certain information is likely to be ‘special category data’ under data protection law.  Even when it is not special category data, it is likely to be sensitive.  Schools will need to consider keeping information secure and confidential in accordance with their data protection policy and obligations.  Any such information should be accurate and kept up to date and only those who need to have access to it, should.
• In relation to trans staff and issues of gender reassignment, ensure any sharing of information is with consent and is in accordance with the individual’s wishes.
• Seek to create a culture of support for staff with the aim of promoting inclusion and diversity

Summary

Having a diverse workforce which reflects society brings great benefits and can help staff feel valued.  Developing a culture with a focus on EDI may not only assist with defending a claim for discrimination, it may also make a positive impact on the school as a business and employer.

Generation Z, those born between the mid to late 1990s (around 1997) and 2012, are said to value individual expression and avoid ‘labels’.  This may well have an impact on the development of diversity and inclusion in the workplace.  The oldest Gen Zers are now 25 years old and will be working in schools in a variety of roles, including being a member of teaching staff. It is likely to be a topic which will continue to gather influence and be a focus for schools in the years ahead.