Progressive movements such as Black Lives Matter (BLM) and #MeToo have elevated diversity, equity and inclusion matters to the top of the sporting world’s agenda. Racism and racial inequality are particular concerns in UK sport with over 80% of people from black and minority ethnic backgrounds having experienced discrimination in some form in the sector.
Recognising the need for action, the UK Sport Monitoring Advisory Panel – established to hold to account publicly funded sporting organisations over their BLM-inspired pledges – published its inaugural Race Representation Index (RRI) earlier this year. The index aims to provide a baseline on racial diversity across the sector and allow progress to be tracked year on year.
The governing bodies which participated in the RRI were scored on the basis of ethnically diverse representation at board level, senior management, senior coaching and athlete level before a final grade was produced. The results show there is room for improvement: 15 out of 35 national governing bodies (NGBs) (43%) were handed the lowest three (of six available) grades, with a further ten (29%) not receiving a grade because data in particular categories was either not collected or was still in the process of being collected.
The RRI sets out a number of recommendations for NGBs to improve ethnically diverse representation across the different criteria. We examine the key recommendations below.
Improving ethnic minority representation
The RRI recommends that NGBs develop balanced ethnically diverse representation at all levels. In doing so, NGBs must be careful to tread the fine line between (lawful) positive action and (unlawful) positive discrimination.
Positive discrimination refers to the preferential treatment of members of a disadvantaged or under-represented group over another because of a protected characteristic such as race, sex or sexual orientation. This is generally unlawful under the Equality Act 2010 (EA 2010).
Whilst it is unlawful for employers to positively discriminate, they can take “positive action” in limited circumstances. The EA 2010 envisages two forms of lawful positive action: general positive action and positive action in recruitment or promotion.
General positive action
Employers may take proportionate steps to address underrepresentation or disadvantage experienced by people with protected characteristics. Examples of measures which are generally lawful may include:
- the establishment of employee resource groups and ally networks;
- aspirational diversity targets;
- the funding of outreach and bursary programmes for protected groups; and
- open days, work experience and mentoring and development programmes targeted at protected groups.
Before taking any general positive action measures, NGBs must carefully analyse the disadvantages and needs of the relevant minority ethnic group, and the effect the positive action will have on other groups. Whether the initiative has remedied the inequality it was put in place to address should also be continually reviewed.
Positive action in recruitment or promotion (the “tiebreaker” provisions)
Where candidates for recruitment or promotion are equally qualified for a role, the employer can lawfully select the individual because of a particular protected characteristic if:
- both candidates are “as qualified” to be recruited or promoted; and
- granting the preference is a proportionate means of addressing the underrepresentation or disadvantage experienced by members of the relevant protected group.
Many employers are reluctant to use the tiebreaker provisions given the difficulty of establishing that two candidates are equally qualified for a role and the danger of exposing themselves to a potential positive discrimination claim by the candidate who loses out. Discrimination claims may result in expensive, time-consuming tribunal hearings, compensation pay-outs, reputational damage and damage to employer-workforce relations.
To mitigate this risk, employers must establish objective assessment criteria for selection for recruitment or promotion before assessing candidates, taking into account overall ability, competence and professional experience, relevant formal or academic qualifications, and any other qualities required for the specific job.
Employers must also avoid having a blanket policy of appointing or promoting candidates because of a certain protected characteristic. An Employment Tribunal may find such a policy is in place where employers apply an artificially low threshold in categorising employees as equally qualified. For example, in Furlong v The Chief Constable of Cheshire Police (2019), an Employment Tribunal held that a police force’s recruitment process discriminated against a white heterosexual male candidate who was rejected after the tiebreaker provisions were applied to a pool of 127 applicants who passed the interview stage.
Inclusive recruitment practices
The RRI recognises the importance of inclusive recruitment practices in building a more diverse workforce. Such practices have proven very effective and will always be lawful if they have no negative impact on other groups (as they would not even be classed as positive action). To improve ethnically diverse representation, NGBs may consider:
- advertising in areas into which ethnically diverse communities are connected;
- working with charities / specialist recruiters who will help identify and put forward candidates from ethnically diverse communities (without restricting applications from other groups);
- using skills-based assessment tasks in recruitment;
- having individuals from ethnically diverse backgrounds on interview panels;
- unconscious bias training for interviewers; and
- showcasing role models from ethnically diverse backgrounds.
Ethnicity data gathering
The RRI recommends that NGBs have a strategy and plan to collect data in the areas covered by the RRI. NGBs must ensure they comply with the Data Protection Act 2018 and General Data Protection Regulation in collecting and managing ethnicity data. To minimise the risk of breaching applicable data protection laws in the UK, NGBs should:
- Anonymise data: Anonymising data may take it outside the scope of data protection legislation. However, a truly anonymous survey may not always be possible given the size of the NGB or relevant team surveyed, or if the NGB employs only a small number of individuals who identify as a certain ethnic minority.
- Justify data processing: Personal data revealing racial or ethnic origin is considered ‘special category’ data and its use is subject to additional safeguards. NGBs must have a lawful basis to process ethnicity data and a specific purpose for doing so (such as ensuring equality of opportunity within the organisation). Data processing must also be transparent, secure and necessary to achieve this purpose.
- Document what they are doing: NGBs must put in place a policy covering matters such as data integrity, confidentiality, retention and erasure. NGBs should also carry out (and regularly review) a Data Protection Impact Assessment to identify risks to the rights of employees and how they will be protected.
This is a developing and complex area of law. The existing legal framework is restrictive and limited, and does not necessarily allow employers to go as far as they would like. NGBs (like all other employers) should therefore be mindful of the applicable legal restrictions when implementing diversity, equity and inclusion measures. However, NGBs should take comfort in the fact that many organisations in different sectors are taking steps to address underrepresentation of ethnic minorities (as well as other protected groups). With careful planning and ongoing review, NGBs can implement effective initiatives whilst minimising legal risk.
For further information, please contact:
Irfan Allana, Linklaters