“Until the colour of a man’s skin is of no more significance than the colour of his eyes… There is war”.

As a lifelong fan of reggae music, these words, immortalised by Bob Marley in his track “War”, have always resonated with me.

Marley was in fact paraphrasing the words of Ethiopian Emperor Haile Selassie I in an address to the United Nations in 1963. In the same year, Martin Luther King gave his famous “I have a Dream” speech. Selassie’s message is more relevant than ever today following the events in the USA which sparked the Black Lives Matter movement.

As the sun sets on Black History Month (October 2020), I reflected on my own life experiences of race and dealing with race relations as an employment lawyer in the UK.

Like most people, my values and approach to issues of race have largely been informed by my upbringing and childhood experience. I grew up on the island of Bermuda and spent my primary school days there.

A paradise in so many ways, Bermuda for me was diverse and inclusive in a real sense. The population is relatively evenly split between black and white. Throughout my time living there, the Premier (leadership role in Government) was always black. My school was also very diverse and I can truly say that, as a young child, we were ‘colour blind’.

Of course, as I grew older, I came to realise that the remnants of the island’s colonial past have not been forgotten and the country was and still is not immune to racial tensions.

When I returned to Scotland for secondary school in the 1980’s, I was struck by two things. Firstly, I saw very few black people at all in Glasgow. None of my classmates in my school year group was black.

Despite this, people seemed to be very aware and vocal about issues of race and colour. There was a thriving Asian community in the west of Scotland and casual discrimination was evident, almost as ‘part of the language’.

As a teenager, I immersed myself in the Glasgow reggae music scene (a small but passionate and welcoming community of like-minded people) and read about black history and Rastafarian culture.

In my legal studies at the University of Glasgow, I was drawn to labour law and European Union law and the concepts of anti-discrimination. My dissertation was a provocation on the need for EU-wide regulation to combat race discrimination. I introduced my thesis with Selassie’s quote above.

At that time, there was only EU regulation outlawing sex discrimination in employment. In that sense, the UK was unusually ahead of other European member states when it brought into force the Race Relations Act back in 1976.

The rise of the far right in certain mainland European countries held back legislative intervention. How this resonates with the state of affairs in the US today. The EU finally introduced an Equality Directive in 2000, to prohibit discrimination on the basis of race or ethnicity throughout Europe.

I also took an elective course on the US Supreme Court and Civil Liberties. Through this, I signed up for the Death Row Project at Glasgow University, which took me to Los Angeles to volunteer with the American Civil Liberties Union to help progress the appeal of a death row inmate who had been convicted on double murder charges in gang-related incidents in South Central LA.

Issues of race and ineffective assistance of counsel for an indigent defendant were central to our client’s appeal. Over 40% of death row inmates in the US at the time in 1994 (including our client) were black. That statistic has not improved today. The race of the accused (and victim) has a disproportionate impact on the likelihood of a capital murder conviction.

Since I qualified as an employment lawyer, the focus of my practice has been on representing (and defending) employers. I am pleased to say that I have never felt my values or morals to be compromised in the work that I do – including advising on and defending allegations of race discrimination.

Insidious cases of racism at work have thankfully been quite rare in my practice, particularly in Scotland. However, those who discriminate generally do not wear their prejudices on their sleeve. Discrimination cases usually turn on adverse inferences being drawn and issues of unconscious bias.

It is no surprise that, since #MeToo and Black Lives Matter became such high-profile campaigns, I am regularly instructed by clients to present training on diversity & inclusion and unconscious bias, for leadership teams and line managers alike.

This is business critical. When defending an Employment Tribunal claim for discrimination, the panel will look to what the employer has done to take steps to raise awareness of anti-discrimination at work and ensure that people leaders have been appropriately trained.

At our annual employment law seminar earlier this week we featured a panel session on anti-racism in the workplace and why this is important to HR, with the good people from Project 23 and The Small HR Company.

The key learnings for me were:-

• Creating a diverse and inclusive culture at work is not just the right thing to do; it makes business sense. The common denominator of all employees is that they want the business to succeed. A more diverse and creative workforce will add to the bottom line. Diversity is a business imperative.
• Even in organisations with a lower proportion of employees who are people of colour, the conversation still needs to be had. This is as much about brand values as it is about equality at work and don’t forget that your wider client / customer base is likely to be much more diverse than your workforce.
• Conversations about race in the workplace are not easy. Labelling someone or something as “racist” is a triggering and provocative word. But you must not avoid having the conversation.  Accept that biases exist in society and try to normalise the conversation. It will be hard and uncomfortable for some, but workplaces are reflective of wider society – and these conversations are taking place more often than ever before.  Provide a process and framework for the conversation at work, to educate your people.
• Equalities monitoring statements, etc. are one thing. However, a ‘tick-box’ mentality is not enough. Employees will judge the business (and ultimately their trust in HR) on the action taken to outlaw inequality in the workplace. I learned that it is not good enough to be “colour blind”, as we were taught as children – you must come to acknowledge, understand and ultimately respect different experiences, especially around privilege.
• Invariably issues of discrimination and culture land on the doorstep of the HR department.  Should HR managers be the ‘moral compass’ of an organisation? That is perhaps an unfair burden to bear. How can HR support the business and call out racism if they are not themselves trained and educated in this challenging (and sometimes controversial) area? Ask for support and development. HR leaders and teams deserve to be trained and supported with the tools in their toolkit to lead on a diversity agenda, especially if they don’t have lived experience themselves.
• Finally, it’s ok to make mistakes. We all do. This is going to happen along the way in building an inclusive culture at work. What is most important is to adopt a learning and growth mind-set.

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