A ‘fundamental misunderstanding’ of the Equality Act is leading to poorly executed diversity and inclusion activities and risking companies falling foul of the law, according to the business and trade secretary.
Kemi Badenoch, writing in the Sunday Times, argued that livelihoods are being threatened based on employees’ views, and urged HR teams to avoid “snake-oil salesmen” offering “dubious materials” that claim to solve their inclusion problems.
In recent days, the closure of outspoken former Ukip leader Nigel Farage’s bank account – after an internal Coutts report suggested this was because he was “xenophobic and racist” – has led to the resignation of NatWest CEO Alison Rose.
Another prominent activist claiming to have had an account closed is anti-Brexit campaigner Gina Miller, who had been told by Monzo that her own party’s account would be closed.
But Badenoch, who is also minister for women and equalities, said the account closures were “just the tip of the iceberg”, citing prominent employment-related cases such as Maya Forstater, who won a tribunal case for belief discrimination against her former employer CGD Europe, which had not extended her employment contract after she expressed gender-critical views.
Diversity & inclusion
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She wrote: “The Equality Act is a shield, not a sword. It is about preventing discrimination, not social engineering.
“There are no protected groups in the act, only protected characteristics. A white man is just as protected on the characteristics of race and sex as a black woman, yet many believe the act is there just to protect minorities, when in reality it protects us all.”
Badenoch added that calls to scrap the 13-year-old piece of legislation were unfounded, adding that “the issue is not the law. It’s bad actors misrepresenting it to suit their agenda.”
She said the Department for Business and Trade was working on practical ways to support companies in their diversity and inclusion efforts, in a bid to “wrestle the issue back from the activists and the professionally offended”.
She said the Inclusion at Work panel, made up of experts from academia and business, would build evidence-based resources that would “help confused HR colleagues understand what actually works and supplant the dubious materials from snake-oil salesmen operating in a largely unregulated space”.
One of the issues raised by incorrect interpretation of the Equality Act was a risk of positive discrimination, Badenoch added.
The legislation says that it is lawful for employers to take positive action to help address inequalities at work, such as in recruitment of minorities.
However, it is unlawful to positively discriminate – where an employer for example hires someone because of a protected characteristic, rather than because they are the best candidate.
Poor interpretation of the Equality Act often means managers confuse the two, putting themselves at risk of legal claims.
Badenoch added: “It is not government’s job to write companies’ HR policies. However, it is our job to stop them doing harmful things based on a misunderstanding of the law.
“I’m committed to bringing people together, rather than atomising them into identity groups, and helping businesses to focus on delivering healthy working environments, rather than becoming social regulators.”
The government published guidance for employers on positive action in April 2023, as part of its Inclusive Britain response to an inquiry by the Commission on Race and Ethnic Disparities.
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