Most people have heard of equality and diversity but, what does this actually mean? Where did the phrase come from and what are employers’ legal obligations when it comes to ensuring equality and diversity in the workplace?

Definition of equality and diversity

Equality and diversity are not legal definitions. Rather, they are just ordinary words which have been adopted by HR. Even amongst HR practitioners slightly different meanings are understood.

The word equality suggests eliminating discrimination in the workplace and ensuring equal access and equal opportunities for all. This would lead to fair outcomes for all, regardless of starting point. This does not necessarily mean everyone has to be treated exactly the same. Where an employer is pursuing the elimination of discrimination, it could lead to people being temporarily treated differently.

For example, an employer could take positive action to help under-represented groups achieve management positions. This would not go as far as ring fencing certain roles for certain types of people but can mean that under-represented groups would receive extra training, mentoring or other encouragement to apply for such positions.

Diversity, on the other hand, is about recognising difference and creating a workplace culture which respects, values and utilising all differences. This does not solely apply to race and ethnicity but, all types of differences such as age, disability and upbringing. There are recognised business benefits associated with diversity, for example different perspectives can lead to better product development or marketing ideas.

The history of HR

As with other sectors, the world of HR changes and evolves; as new theories and ways of doing things gain traction, the language and labels used also move on. It is quite usual for ideas which began in the USA to migrate to the UK several years later.

Not that long ago, the phrase ‘equality and diversity’ wasn’t widely known in the UK; it was much more common to see the phrase equal opportunities being used. Today, you may also see the phrase equality, diversity and inclusion. This is due to a growing acceptance that treating everyone the same was not going to lead to equal outcomes, as people come from different starting points and have different needs.

Inclusion is generally accepted as the practice of accepting someone as they are – breaking down prejudice and challenging attitudes – and making changes accordingly. One example might be employing an autistic person and allowing them to wear ear defenders to work in the office as they can get distressed by background noise.

Equality and diversity: policy vs the law

Large employers will be concerned to make sure that their HR departments are keeping up with the latest HR practices and trends, for reputational and recruitment reasons. However, smaller employers may not have the resources or inclination to stay “on trend” with to personnel matters. So, how much do employers legally have to do when it comes to equality and diversity and how much is discretionary?

The only legal requirement on an employer as regards equality is to:

• ensure they comply with equal pay legislation i.e. they pay men and women the same for doing the same (or equivalent) jobs;
• they do not discriminate against job applicants or staff when it comes to benefits, promotion and other workplace matters;
• do all they reasonably can to prevent discrimination and harassment of staff in the workplace by others (this is cultural and comes from having the right policies in place, giving adequate training, and demonstrating strong leadership).

Although it is not a strict legal requirement i.e. there is no direct penalty for not having one, all employers are likely to have an equality and diversity policy in their staff handbook, as a minimum.

Often, this goes no further than simply explaining what unlawful discrimination and harassment is, stating that the employer will not tolerate it and making it clear that anyone who discriminates or harasses in the workplace may be dismissed. Even a basic policy can help an employer defend an unfair dismissal or discrimination claim.

Enlightened employers may wish to have more comprehensive policies and programmes to help create a culture where equality and diversity is valued but, there is no legal requirement to do so.

Reporting a gender pay gap

Large employers with 250 or more employees must report annually on their gender pay gap – that is, the difference between the average pay of men and women in the organisation. While the requirement to report is legally binding, it is not unlawful for an employer to report a gender pay gap, however big it is.

However, for reputational reasons, an employer may wish to publish details about the measures it is taking to reduce its gender pay gap. This is likely to involve equality and diversity measures, such as positive action for females at recruitment and promotion stages.

There are also plans to extend the requirement for large employers to report on their ethnicity pay gap i.e. the difference in average pay of employees of different ethnicity in an organisation. It is not yet known exactly when this will be introduced.

Requirements for public sector employers

Employers in the public sector, including local government, schools, the civil service, police and NHS, have a specific legal equality duty, applied when they are exercising their public functions. This duty does not apply to private companies not carrying out public functions.

The duty requires them to have due regard to the need to:

• eliminate discrimination, harassment, victimisation under the Equality Act 2010;
• advance equality of opportunity;
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.