Over the past few years, we have shared a number of thought pieces with you on this blog relating to diversity and inclusion (“D&I”), particularly as we recognise that D&I is an important aspect of an organisation’s culture. Following last month’s Black History Month 2021 in the UK, we are reminded that conversations around D&I cannot be limited to a particular month and need to be ongoing conversations throughout the year if businesses want to enjoy the benefits of being genuinely diverse and inclusive.

Two different concepts: diversity and inclusion

However, take it back a step, what do we really mean when we speak about ‘diversity’ and ‘inclusion’? The two terms refer to two separate concepts that are often confused because the terms are typically used together. However, it is important to understand the difference and the impact they can each have on an organisation’s culture. I once heard the difference summarised in the following way: “‘Diversity’ is inviting someone to a dinner party. ‘Inclusion’ is providing them with the same opportunities to eat when they arrive.” Let’s break this down:

• Diversity: diversity focusses on the ‘who’, i.e. the makeup of your workforce and, in particular, understanding, accepting, and valuing the different personal, physical, and social characteristics of the people who work for you. This includes, amongst other characteristics, gender, ethnicity, sexual orientation, religion, education, physical ability and disability and age. It’s important to note that it also includes other characteristics that are not currently protected under discrimination law (for example, social mobility).

• Inclusion: On the other hand, inclusion is about the ‘how’, i.e. the creation of a work environment and culture that empowers all employees to participate in and thrive at work. This includes the procedures, policies and behaviours a company puts in place to ensure all their workers' differences and needs are taken into account. The goal is to create a respectful company culture where all employees feel comfortable, included and accepted. True workplace inclusion removes barriers, discriminations, and intolerance to ensure that all employees feel physically and psychologically safe, supported and happy to participate and share their opinions.

The impact of D&I on employment law matters

So, what do these two concepts mean in practice, particularly from an employment law perspective? 

Well, for example, diversity may inform the kind of targets your business has in relation to recruiting and promoting people from certain backgrounds, whilst bearing in mind the legal framework around positive discrimination. It is also likely to assist companies in meeting regulatory and corporate governance requirements, particularly as regulators increasingly focus on this area. Diversity at senior leadership level also means that a diverse collection of perspectives is considered during important decision-making processes, meaning the outcomes are more likely to be robust and mitigate legal risk.

Inclusion is likely to inform, for instance, a company’s decision about whether to incorporate an agile working policy into its employee handbook alongside the current flexible working legal framework. It may also inform a business about the types of provisions it has at its offices to minimise the risk of workplace discrimination. This might include, for instance, a private room for breastfeeding women and people, company documents with non-binary language or accessible offices and resources for disabled people. 

The more genuinely diverse and inclusive a company’s culture is (from all angles), the less likely it is that the business will have to manage disillusioned employees who, as a result of feeling alienated, are more inclined to raise whistleblowing claims about discrimination, internal grievances or, if they leave the business, bring claims of unfair or constructive dismissal. Instead, businesses with a genuinely diverse and inclusive culture are more likely to attract and retain the best talent, regardless of background, and drive the success of their businesses with a happier workforce. If you’d like to find out more, these resources put together by our Diversity Faculty may assist you in staying on top of both diversity and inclusion in your business.