We are already seeing an uptick in the number of race discrimination complaints being raised in the workplace. Some of these may be grievances concerning specific discriminatory acts raised by current or former employees or job applicants that can readily be investigated. Other complaints, however, may be about the culture of a workplace more generally. They may come from a member of the public on an external social media platform or may even be anonymous.
It is important for employers to find ways to address such complaints and take appropriate action where needed. Tempting as it may be to put anonymous or vague complaints into the “too difficult” box, there are risks in not engaging with them. If you are seen not to be taking complaints seriously, however imprecise or trivial they may appear to be, there is a chance this could lead to discrimination claims being made. And ultimately, an Employment Tribunal could draw adverse inferences from such a failure to act.
What should employers consider when faced with…
…a generic complaint about race discrimination in the workplace?
Where issues are raised about a company’s cultures and practices that are not specific, there are still steps you can take to investigate them. The first step would be to explore the allegations with the complainant in further detail (see below for when they wish to remain anonymous). If you can extract more specific information about the complaint, you will be able to investigate it more fully.
If the complainant is not willing to cooperate or you think it inappropriate to contact them - for instance, if they are a member of the public on a social media platform – we would recommend a more general “cultural” investigation to identify any truths behind the allegations. You could appoint an investigator to speak to a small group of people about their experience of working at the company and follow up on any specific issues that come to light. The group could be identified through asking people to volunteer, chosen at random or individually selected to represent a cross-section of the company.
The investigator could be someone internal who is seen as neutral – for example, someone from an unconnected department or group company. Alternatively, an external investigator might be engaged if no-one internal can be identified as sufficiently neutral. A survey or an anonymous phoneline could also be used as an initial information-gathering tool (see further below).
If the complaint relates to issues that are easily measurable, such as levels of racial diversity in your workplace or at management level, you may be able to investigate without receiving any specific allegations. For instance, for the example given, reviewing your recruitment and diversity policies and practices to understand the level of racial diversity within the company would be a good start.
…a complaint that is too vague to be investigated?
As mentioned above, we would always advise an initial consideration of whether there are at least some elements of a complaint that can be meaningfully investigated. If the complaint is simply too vague, however, we would still suggest taking proactive action to address the potential allegations. This could involve:
- A statement from the leadership team acknowledging the issue, encouraging people to speak up and offering avenues for them to do so – for example, an anonymous phoneline, a cultural survey or an externally appointed investigator. If issues come to light as a result, they can be investigated.
Staff would need to be suitably reassured that it was safe for them to use this process without repercussions. Offering anonymity to people who participate may be necessary, albeit this can make it more difficult to take action.
- A cultural survey, if used, could ask people for their views and to share examples of anything they are unhappy about. If concerns arise, employees could then be encouraged to discuss them in more detail with an appointed investigator. Using a platform for the survey that enables you to respond to employees on an anonymous basis could be useful.
- Training sessions can be delivered to your organisation generally and/or to specific individuals whose names arise in allegations. These sessions are an invaluable way to ensure that members of staff are proactively encouraged to spot and call out racism.
…a complaint that you don’t think is true?
Even where there is a question mark over the veracity of a complaint, we would still recommend taking some steps to consider the complaint – even if simply to establish and record your conclusion that it is baseless (for example, allegations being levelled at a team which does not exist).
…an anonymous complaint?
Employers may understandably be cautious about engaging with anonymous complainants, especially where the nature of how the complaint is raised provides no clue as to where it has come from. For instance, an anonymous letter sent to the managing director of a company is likely to be more suspicious than a message on an internal anonymous hotline.
This doesn’t mean the complaint should not be taken seriously and potentially investigated. But where you are unsure whether the complainant is external, we would advise against sharing details about any investigation into it or any findings unless the complainant reveals their identity.
You may be able to contact the individual despite their anonymity - for example, where you have received an email which does not identify the sender. They may then be willing to speak, if you can enable them to do so on an anonymous basis. In this situation, you will almost certainly need to identify a suitably impartial person to run the investigation into the allegations. This could be someone in another group company or an external investigator. Ideally, you would want to be able to give the complainant assurances that they will not be named to the company (if they don’t want to be), and that retaliation will not be tolerated.
If the individual is not willing to provide further information, it would still be advisable to take steps to try to address the generic allegations at a more general level, as set out above.
If you need advice on how to handle a complaint of race discrimination, please speak to your usual Lewis Silkin contact or a member of our Investigations and Regulatory team.
If you are interested in running training for your staff, contact our HR & Legal Training team. We offer, for example, training on unconscious bias and various diversity and anti-harassment and bullying courses. Our Leadership Workshop highlights the issues around workplace behaviours for managers, while our Speak Up sessions cover the role of employees in calling out inappropriate workplace behaviour.