Most HR practitioners are able to rattle off a complete list of the nine protected characteristics under UK equality law, and confirm that their diversity policies address each one. However, when diversity is managed on a worldwide basis, the huge differences between cultural and legal approaches to equality become a real challenge for employers.
There are many countries that do not provide the same level of legal protection against discrimination as the UK. A large number have accepted the need to promote equality of opportunity between men and women and to protect individuals from sex discrimination. But the same cannot be said of discrimination on other grounds, such as age and sexual orientation. Many countries do not recognise same sex partnerships, for example, and some still criminalise homosexuality. Approaches to positive discrimination also vary, with some countries using quotas to promote the employment of their own nationals.
Even where the legal framework offers protection from discrimination, cultural and social attitudes may be far less tolerant of diversity than those in the UK. This creates problems for employers who seek to apply global diversity policies consistently in every jurisdiction, as well as for those sending employees on overseas assignments.
The risks can be significant, especially in relation to approaches to sexual orientation. Take, for example, the United Arab Emirates (UAE), where homosexuality is a criminal offence potentially punishable by death. The UAE’s penal code applies to all residents of the country, irrespective of where their employer operates or their own nationality. So LGBT employees employed locally or seconded from abroad could be at risk of criminal sanctions and persecution. The employer, represented by local management, could also face criminal liability for implementing diversity policies that seek to protect employees from discrimination because of sexual orientation.
However, failure to offer employees such protection can cause employers difficulties in the UK. Under the Equality Act employers can be held accountable for discrimination suffered by employees if their employment has a strong connection with the UK – particularly where the employment relationship started or is based in the UK. This is the case even if the employee is working abroad at the time the discrimination takes place, and creates particular risks for British employers sending employees on overseas assignments to host employers who may not comply with UK equality law.
It is therefore vital for businesses to understand the different legal and cultural approaches to equality in all countries in which they operate. They then need to decide how to address those differences. Certain employers choose to stand by a globally consistent diversity policy, even though it may be in conflict with a particular jurisdiction. Indeed, to do otherwise is difficult for an employer who is committed to promoting diversity and has made this a central value. Where the employer applies its policy in a manner that could be in conflict with the local legal system, it is important that employees going to work in that jurisdiction are made aware of the differences in approach and possible consequences both for them and for the employer. This can help both sides make informed decisions about how the employee’s characteristics, or those of a partner or dependent, can be accommodated.
Other employers choose to adapt their global policies in a way that allows for local differences while avoiding inconsistency at an international level. In countries where these employers have decided to avoid making open statements in favour of diversity, they may use other forms of support, such as setting up mentoring systems or support networks for certain groups of employees and establishing managerial accountability for fostering diversity within the workforce. These measures may allow employers to maintain consistency with their overall corporate policy, without falling foul of local laws.
Many multinational businesses have embraced the business case for promoting diversity and equality. They recognise that this gives them access to a much wider talent pool and can help them retain and nurture that talent, while also increasing the circulation of talented employees across their different workforces. The challenges of implementing a global diversity policy may be significant, but the risks are well worth the rewards.
Katie Williams is a partner at Pinsent Masons LLP