David Greenhalgh guests on D&I Spy podcast

David was interviewed recently by Dr Julie Humphreys and Natasha Whitehurst both leading D&I professionals on their regular podcast D&I Spy.

Discussions focused around the D&I issues and themes that David is currently seeing in his role as an employment lawyer.

Topics included training to reduce employment law risk with a focus on the new positive legal duty to prevent sexual harassment, the increase and issues around employees getting late diagnosis of autism and ADHD and the positioning and perception of D&I within businesses.

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David Greenhalgh guests on D&I Spy Podcast Transcript in full:

DG:  David Greenhalgh

JH:   Dr Julie Humpreys

NW:  Natasha Whitehurst

JH: Hello and welcome to D&I Spy, the fortnightly podcast which uncovers what’s really going on in the world of diversity and inclusion.

JH: I’m Dr Julie Humphreys.

NW: And I’m Natasha Whitehurst.

JH: And in today’s episode, we’re exploring the three most talked about DEI issues that UK lawyers are seeing.

NW: And we are joined by David Greenhalghl.

David is an employment lawyer and has over 30 years of experience in providing employment law advice to senior executives, employers and employees.

Welcome, David.

DG: Thank you.

Thanks, though.

JH: Great to have you here.

So David, we wanted to hear from you about the top three things that you’re seeing from an employment law perspective at the moment that are linked to diversity and inclusion.

Can you maybe just give a high level view of all three and then let’s dig deeper afterwards?

DG: Absolutely.

Yes, I’ve been thinking a lot about this.

So I act for employers and employees.

So from the employer side, there’s always an appetite to try and reduce risk.

And that varies over time.

And it depends on budgets for things like training because training is obviously a great way to try and minimise that employment law risk.

We also know that there’s some changes on the way through in October this year where there’s going to be an actual positive duty on employers to prevent sexual harassment.

So that seems to enliven the debate really in the sense of an urgency now to crack on with training around trying to reduce that kind of risk.

So that’s one of the things I’m seeing a lot of.

I’m also seeing when I’m acting for employees and senior executives, there seems to be an enormous uptick in the number of people who are going for late diagnoses around perhaps ADHD, maybe because their children are diagnosed and then the parents think, “Shall I go and check this?

I’m recognising some features in terms of how I’m behaving, how it impacts me.”

They go for perhaps a test to see whether they’ve got ADHD.

And often in linkage with that, they’ll also be diagnosed with autism because the two can often be linked.

And so I see lots of people who get these late diagnoses where they found an answer perhaps to what’s been impacting how they perform at work or the issues they’ve had at work or day to day.

And often it will throw people.

Often there’ll be a shock factor, particularly perhaps with the diagnosis of autism where they were perhaps expecting ADHD only.

And also there might be medication.

And often there can be a period where the medication needs to equalise out, to calm down, different medications to be tested.

And often this throws employees.

And so it’s a question of sometimes you see employers who are not perhaps as patient as they might be during that period.

So employees will have issues in the workplace around that.

And also often there are challenges where the employer doesn’t perhaps treat the employee in the same way as they did after they learned about diagnoses.

And the worst case scenario is perhaps they’re needed to be somehow damaged goods, the employees, and there can be issues around that.

JH: And the third one, David.

DG: The other area which I see a lot of is it’s a sense to me of D&I itself and the importance that it’s given in certain organisations, not perhaps from the employer side because most of my employer clients encouraged by me, I try to encourage them down that route to be as diverse as possible with training, etcetera.

But often, I mean, I think it was probably over a year ago now, I had a whole number of D&I people working in D&I senior leve,l where there became a kind of common theme between them when I was acting for them.

It seemed to be that often D&I is supported by particular individuals who support the whole idea massively.

They’ll perhaps fight for a budget for D&I.

And then those people often leave.

And in that sense, sometimes D&I falls away.

The importance of it in the organisation seems to be often anchored to particular people that champion it.

And budgets can then be lost.

Or D&I doesn’t always seem to be as important as you might want it to be in terms of priorities within a business.

And it seems to me there’s often a failure to understand how it links to profitability, increased profitability.

It’s sometimes seen as icing on the cake.

And actually, everything I’ve read, and I was encouraged with employers, having diversity and inclusion should increase your profitability.

Hence, it’s a key element of the business in the same way as anything else that increases profitability.

NW: Super.

So three really clear points then of things that you’re seeing across the landscape.

So if we take the first point, which kind of links to the training and harassment piece, can you elaborate maybe on the legal implications and those potential penalties that employers are facing, if they do fail to adequately address some of those discrimination claims?

And I guess a little bit about the kind of preventative measures, but really just if you could expand on that point, because I think it’s really interesting you alluded to the 25% penalty.

And I suppose the one thing on this podcast is about us kind of taking it back to basics and making it really clear for people to understand.

So could you break that down for us in a bit more detail?

DG: Yeah, I agree.

I’m always very keen when I’m doing training for employers.

And the thing that often makes the employees attending training wake up is when I talk about how they might have potential personal liability for discrimination.

And I think with discrimination, the good thing about the change in the law that’s coming in, although it may be a potential headache for employers, is that there’s now a positive obligation on the employer from October to actually take steps to try and prevent sexual harassment in the workplace.

So previously, there was a possible defense for employers they could try and use to a claim for discrimination if they could show them that they’ve taken all reasonable steps to try and prevent discrimination.

So that’s often the reason why employers are keen on training around this aspect from employment lawyers, because you’re highlighting the employment law risks and how to avoid it.

So it can’t just be a tick box exercise.

The case law says that you can’t be stale, the training, you’ve got to keep it up to date.

It needs to be interactive.

It can’t just be a tick box exercise.

So that’s important for employers.

And now we’ve got this added element, which has now come in, which actually is not as before you could just say, if we want to try and defend it, what’s in our arsenal.

Now, it’s different, because now there’s a positive obligation.

And if you fail to comply with that positive obligation, you obviously face an uplift of up to 25%, which in some of the discrimination claims could be massive because it’s uncapped, obviously.

So I think it will make employers wake up and think about it carefully.

It’s not an absolute duty.

So it’s not where the employer tries to defend any kind of discrimination case.

It’s all reasonable steps.

It’s not quite as strict as that.

But still, you can see the benefit of having some kind of training around it.

The other thing which I think is really important is, and from all the claims I do around discrimination, often the employer may be unaware of what’s really going on on the ground in terms of culture within the organisation, or perhaps it’s got its head in the sand.

What I’m seeing a lot of employers thinking about using is technology systems whereby people can anonymously, if necessary, initially at least report what’s going on on an app, whatever it might be, by clicking a button.

And that gives the employer a sense of what’s really going on.

Because obviously, a lot of cases I see, it feels very much like the employer’s just been giving lip service to diversity, inclusion, trying to get awards for the most whatever it might be, DNI.

But actually, underneath, sometimes it becomes apparent it’s not quite as it seems.

Because when you speak to people who are experiencing the discrimination, it can often be rife.

And it’s under the surface lurking there.

And sometimes the employer just may not be aware of it.

It may be an iceberg sitting there, but they’re not seeing.

And the benefits of the technologies, it can enable them to see what’s really going on.

JH: I was just going to ask David, you mentioned positive obligations there that employers need to do now.

Can you give us just some examples of what they might be?

DG: Well, because it’s not coming to law yet, Julie, it’s unclear yet.

But we know it’s not going to be an absolute duty.

But it’s got to be some, it’s a positive duty.

So it seems to me that training may help.

But at this stage, we don’t know exactly what it’s going to look like.

Also, a method of allowing people to report incidents of sexual harassment.

The positive duty is just around sexual harassment.

It’s not around all discrimination.

That’s my understanding of it.

So it’s around sexual harassment.

So if you have a reporting system, then that’s an obvious one in a way because it shows that you’re positively taking steps to elicit what’s going on behind the scenes and to take action.

Obviously, you can have policies in place.

But as we all know, having a policy in place doesn’t mean much unless you’ve had training around it to structure it, to hold it up, to explain it, training to get people to buy in.

And as you know, the business needs to buy in, needs to understand the value of what you’re doing.

And here, it’s an obvious one because it’s a financial penalty.

It’s an increased risk.

We’re going to see from October an increased level of risk to the business unless the business gets serious about preventing sexual harassment.

So it’s a positive step for employees and senior executives.

But for employers, this is something else that they’re going to need to deal with on the whole raft of other things they need to be thinking about.

NW: And I think this takes us back to previous conversations we’ve had with other people around where this kind of thing sits and how HR and the diversity and inclusion team knit together to make these things happen because it can’t be one without the other.

But actually, there needs to be a collaboration between the two is what I’m hearing for this to be feasible but also then protect both employers and employees.

DG: Yes, I mean, obviously, I see it from being an employment lawyer acting for both sides.

But yes, you’re right.

It seems to me it’s got to be a very much a joined up exercise of understanding difference, valuing difference, seeing the difference it can make to the bottom line, encouraging difference, really.

It can’t just be a tick box exercise to just say that we’ve satisfied our obligations because if there’s an iceberg under the surface, if there’s an underlying cultural issue, you’re going to be losing people that realising why people are leaving because they’re seeing discrimination happen.

You’re losing talent that you’re spending a lot of money to get in the door and it’s going straight out.

And obviously, it’s going to have a massive impact.

NW:: Yeah, I would agree with what you said.

And one of the things I wanted to just refer back to, you’ve said it a couple of times.

And you’ve referenced a tick box exercise.

And I just think it’s a really interesting turn of phrase.

And I just wondered, from your perspective, how do you define a tick box exercise?

What does that look and feel like in your opinion?

DG: Well, as a lawyer, often you’re asked to advise on the law.

And often, in that sense, you know, you have particular obligations that you can cover off in terms of risk by ticking boxes.

NW: Okay.

DG: As long as you comply and actually can tick the box, you’ve actually done it.

But obviously, it’s not always clear cut of that.

And for example, in this area of training, risk reduction around discrimination, the courts have said a tick box exercise is not enough.

You have to somehow get it to stick, get people to understand and buy into it.

And from my experience, if you have somebody at the top of an organisation who gets it, they will be able to encourage.

If the managers buy into it and understand what you’re trying to achieve, they can sell it to other people in their team, greater culture, zero tolerance culture.

But you’ve got to have buy-in at the top.

And that’s where I’ve seen things go wrong.

And also seeing things where it’s gone brilliantly, where the head person of an organisation said, we need to, we’re doing this.

And then positive things flow from that for everyone, really.

JH: Okay, David.

So let’s move to your second sort of finding that you’re seeing.

You talked about the increase in late diagnosis of ADHD and autism.

So can you talk us through how employment law addresses these types of situations where employees experience late diagnosis of these types of conditions?

And if there are any legal obligations for employers to accommodate and support individuals?

DG: Yes, well, there’s a massive increase at the moment, I think, because there’s so much more knowledge and understanding of the conditions.

Also, because there’s a massive delay with the National Health Service in terms of people getting appointments to be tested, I think a lot of people are going privately.

And I understand they can potentially get diagnosed fairly cheaply and fairly quickly.

And I think a lot of children are getting diagnosed and parents, as I say, are seeking to understand whether they’ve got the same condition and autism is linked.

So obviously, it can be a shock for people, even though they may have thought they may have had a condition, especially if they get other conditions they weren’t expecting.

In that situation, it can be a shock.

And from the employer as well, obviously, some employers struggle to know how to deal with mental health issues and those kind of conditions in the workplace, because they’re not medically qualified.

There’s often, I give training to managers, but often it’s about to what extent does the company know about somebody having a disability?

To what extent the employer should ask questions about that without getting in trouble?

So asking the same questions to everybody.

And obviously, legal risk around that.

When is the employer on notice that it needs to do something?

And also, it’s all about getting employers to seek support from specialists.

So occupational health, for example, rather than trying to self-diagnose the condition and any adjustments that are needed.

And also then giving the employee enough time to deal with what’s going on and to understand that they’ve always done a good job prior to that point.

They haven’t suddenly changed just because they’ve got a diagnosis.

They might need a bit of support in the settling in period with the diagnosis with medication.

And because they then have a disability that they’ve informed the employer about, the employer legally needs to think about are there adjustments we should now be considering to help this person in light of their diagnoses?

And of course, it may be that the employee has not known what the diagnosis is to ask for the adjustments.

And those adjustments now may make a massive difference if they’re attempted and the employer’s got that legal duty to get to consider making reasonable adjustments to help the employee.

Obviously, employees with disabilities like those are protected by discrimination law.

So a couple of things.

So firstly is, of course, the duty to make reasonable adjustments by the employer.

And secondly, they can’t treat those individuals employees less favourably because of their disability because that will be discrimination.

JH: So how does the law guide employers on making those necessary adjustments?

DG: Well, the duty for employers is to consider making reasonable adjustments.

They don’t have to make every adjustment known to man.

They just have to make ones that are reasonable for their business.

But the main thing is the employer getting guidance on what those adjustments might look like.

They can obviously ask the employee.

So if the employee’s struggling and it becomes apparent they’ve got a disability, they declare it.

They don’t have to, but if they declare it, obviously, is there anything we can do to help you?

And the employee may well give ideas of changes which would help them to work better with that condition.

But the employee’s not medically qualified.

The employer’s not medically qualified.

Neither are qualified to say what kind of adjustments work in the workplace for people with those conditions.

Hence why the employer really should be making refer out to occupational health.

The employee goes to see the occupational health specialist and that specialist will make suggestions to the employer about adjustments which may help that employee.

JH: So it can be quite difficult, I can imagine, and maybe even traumatic for employees to go to HR or their manager to talk about their diagnosis.

Are there any sort of protections around disclosure, privacy, against discrimination for that information?

DG: Well, anything around health obviously usually carries a higher duty of confidentiality, data protection, etc.

So employers need to think very carefully and get advice around that.

The issue from a business is once the business is on notice that the individual’s got a disability or it’s likely they’ve got a disability.

So for example, if a manager’s told clearly that what they can’t do is just keep that for themselves and not inform the business because the business, in terms of things like health and safety for example, for example if somebody’s having seizures or some kind of passing out having fits, then if that’s not passed up the line and somebody has a seizure and dies, worst case scenario, the business, the employer has that knowledge and has not taken steps to prevent that person perhaps working late on their own in an office, whatever it might be.

So there are issues around employees maybe not wanting everybody to know.

Not everybody has to know, but the people that need to know need to know to make sure they’re properly protected, one, in terms of health and safety, but two, that the business can manage that risk and comply with its legal obligations.

NW: So just going back to the adjustments piece, you use the term reasonable adjustments and one of the things that I’m hearing more and more from peers, people in the D&I world is that they’re kind of removing this choice of word around reasonable and lots of people are kind of dropping that word and talking about adjustments and also within that there’s then this element of adjustments being available for all people, not just necessarily people that maybe need it for certain medical reasons, for example.

And I just wondered what the legal implications of that could be and the impact it could have.

DG: Well, at the moment it’s reasonable adjustments because obviously adjustments may be recommended by occupational health, but the business may not be able to make those adjustments may not be reasonable for that business, maybe because of cost or location or physicality of the building, whatever it might be.

So there has to be some kind of control on the adjustments which the employer has to make.

So it’s got to consider making reasonable adjustments, but it has some, once the occupational health has recommended potential changes for the employer to look at, then obviously it’s in the context.

But I would say to employers, obviously it’s in the employer’s interest to make any adjustments it possibly can to enable this employee to do their best possible job, to be profitable for the business and remain with the business, be happy, not be taking sick leave, etcetera.

So there’s massive advantages of the employer to make any adjustments it can to help that employee to continue working for them.

NW: And with that, I suppose the other thing that you often hear is that actually adjustments, people are referring back to the individual.

So kind of like person-led adjustment needs kind of being determined by that person.

So if somebody does have ADHD, for example, maybe it’s something that they’ve lived with for a long time and they feel that they know themselves best.

Oftentimes they might not go to occupational health and therefore there isn’t that kind of occupational health referral back into the organisation.

So they take what that person is saying, actually it’s kind of mutually beneficial.

Again, is there any legal impact there and should occupational health be referred to as kind of just due diligence or actually does it not matter if you’ve got that person-led insight and actually it’s kind of mutually beneficial, business can make those adjustments happen if they’re needed.

Is that okay as well?

DG: Yeah, the duty is not to go to occupational health, the duty is to consider a reasonable adjustment.

So if the employer’s spoken to the employee, perhaps offered a referral to occupational health, the employer said they don’t need it, I know what I need, this is what I need.

The employer says, yeah, great, we can work with that and we implement the changes, then the employer should be absolutely fine.

The other thing to mention of course is that you’re right in the sense that often these changes, which individuals request, could be beneficial for others in the organisation.

So for example, a question to somebody of how do you prefer to be communicated with, verbally or by email?

Things around directions on what you want somebody, a manager wants somebody to undertake a task, a specific task.

How does that person, is the person happy to receive those instructions in a meeting, go out and do the task, or do they prefer to be backed up after the meeting with some bullet points?

So you know, there are some of these things which I think are a beneficial way to approach business generally because it may well benefit a whole lot of your employees to be asked these kind of questions about how they prefer to work and how the business can get the most out of those individuals.

NW: Yeah, and so if we move on then to your final point, which was around the importance of D&I in an organisation and actually it can sometimes be reliant on the person in that role and one of the things you’ve seen is it be watered down when perhaps someone leaves, that budget is maybe reduced.

Are there any recommended practices for organisations to ensure that diversity and inclusion isn’t just lip service but it is genuinely embedded and legally compliant as a part of workplace culture?

DG: I mean I do sit with D&I as I say, about a year ago I had a number of senior D&I people in the same position almost at different organisations.

I also sit with CSR.

JH:Corporate social responsibility.

DG: So both those two seem to me are often linked and are often seen as something which can be dropped or can be watered down, whereas actually they should always be, you know, somebody at the top table I always think for those areas having a voice at the top table because of the importance of them and not just lip service, not just winning awards, not just how it appears the outside world but actually making it so that it’s embedded and helping with profitability of the business and remaining a key function.

It seems to me often it is a key function but it very much depends on the personalities at the top supporting it and if that support is lost then it can become watered down.

JH: Do you see the emergence of ESG and more recently it’s been linked to D&I?

Do you think that will support this problem?

DG: Hopefully.

Hopefully yes.

I mean I do think that there is a kind of interconnection between them.

Certainly I see it in the way I’ve just described but all of them are critically important to the growth of organisations.

D&I, we know that there’s going to be more governance around D&I in terms of behaviours, in terms of things like financial services, in terms of regulations, in terms of regulation, whether people are fit and proper, there’s financial regulation around their behaviours and I still see a lot of behaviours which I think would shock many people in terms of what’s still going on today.

Perhaps there might be particular people in an organisation who are senior who are known to behave in a particular way but that somehow they’re excused, no actions taken by the organisation because those people are untouchable because highly profitable, they might be managing a particular client of the business.

So there’s a whole stream of people exiting, a whole history of people exiting due to this person having behaviours which could be classed as discrimination where the organisation is unwilling to grasp the mettle as it were and deal with the issue.

But obviously the more you structure you around, somebody at the top needs to take a decision to take it seriously and the changing legislation, increasing penalties for failure to do that may help in that sense.

NW: We’ve heard about those three areas.

We ask all of our guests one final question which is do you have a top tip or an inclusive action for our listeners?

For them, once they’ve finished listening, to your show, what they can take away with them?

DG: So I think a top tip for employers is not to assume that just because you have policies in place that what you’re trying to prevent is not going on somehow under the covers.

So it’s a sense of asking people in the organisation what’s going on and if they won’t answer you directly because they don’t want to come forward, some form of anonymous reporting will help you.

And often with my employee clients, senior executive clients that feel they’re being discriminated against, I’ll say to them if you feel that you’re being discriminated against, you will be.

But often it’s a question of legally speaking is there a legal action that can be brought?

But I do think it’s important for employers not to assume that everything’s plain sailing, that there might be a massive iceberg under the surface and that you won’t know about it unless you start asking people or have a way for them to report what’s going on so that you have a proper picture.

So for example, if there’s a reporting method that allows people to ask people questions or to report anonymously, then because of the technology now, that should form a picture which will show you if there are particular issues in particular departments, for example.

And that may then enable you to target that department with particular training to try and reduce the risk and to improve things within that department.

NW: Great top tip.

So one for the employers.

But David, thank you so much for taking us through the topics today.

It’s been great having you.

Thanks for your time.

DG: Thank you both.

NW: You can find us on Twitter.

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Thanks for listening.

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