Black Lives Matter – the new #MeToo?

Published 10 agosto 2020

#MeToo is still very much a live and relevant issue for all regulated firms and solicitors alike, and the SRA has taken a keen interest in such matters as evidenced by some high profile prosecutions. In the wider employment law world, sex discrimination employment tribunal claims have risen significantly, and we have seen, for example the Equality and Human Rights Commission publish guidance on how employers can deal with sexual harassment in the workplace.  It is likely that this guidance will become the basis for a statutory Code of Practice for all employers, with the emphasis being on employers showing how they will stop harassment in the first place rather than how they should deal with such complaints.

Of course with lockdown and the vast majority of solicitors working from home, the challenges sometimes posed by the effects of alcohol at the Summer BBQ or the nights out post transaction completion have somewhat dissipated, but that does not mean that #MeToo has gone away or should not still be prioritised as a risk. Quite the opposite but is there a new wave of risk and awareness that needs to also be considered?

The recent focus on the Black Lives Matter (BLM) movement has rightly brought the discourse about race and equality very much to the forefront of all of our minds, and professional services firms should be doing all that they can to eradicate racial inequality.  We should revisit the findings of the independent review by Baroness McGregor-Smith on issues affecting black, Asian and minority ethnic (BAME) groups in the workplace which was published in February 2017 and the Government response which was published alongside the review.

The review identified discrimination and bias at every stage of an individual’s career, and even before it began:

• In 2015, 1 in 8 of the working age population were from a BAME background, yet BAME individuals make up only 10% of the workforce and hold only 6% of top management positions;
• The employment rate for ethnic minorities is only 62.8% compared with an employment rate for white workers of 75.6% – a gap of over 12%. This gap is even more stark for some ethnic groups, for instance the employment rate for those from a Pakistani or Bangladeshi background is only 54.9%; and
• People with a BAME background have an underemployment rate of 15.3% compared with 11.5% for white workers

In the wake of BLM, the Government has suggested a new inquiry into racial inequality. Some commentators regard this as inadequate citing the fact that in 2019, for example, the Government consulted on whether employers should be required to publish their ethnicity pay gap as well as their gender pay gap, but no outcomes were published from that consultation.  A petition calling for ethnicity pay gap reporting has over 100,000 signatures which means it will be debated in Parliament.  Some employers have already started to publish irrespective of this. 

Race issues are therefore very much on the mind of employers and employees alike, and are relevant to all aspects of the employment relationship from seeking to attract more BAME talent, tackling discrimination, dealing with complaints about race whether they be grievances or tribunal claims, through to embracing and creating a diverse workforce, particularly at partner and senior management level, to reflect the wider population and the clients we serve.

In response to BLM, many law firms published statements to express solidarity and their commitment to tackling racial injustice.  The Law Society said that it “and the solicitors’ profession strive to ensure access to justice, equality for all under the legal system and to promote the rule of law. Racism and all forms of discrimination and prejudice have no place in our justice system – or in any other aspect of society.”

It is clear that words are not enough and that law firms must tackle race issues when they arise.  This is of course what is expected of firms in accordance with the Code of Conduct for Firms introduced by the Standards and Regulations which came into force in November 2019. Allegations of racial harassment should be reported to the SRA and given the attention that they merit.  The SRA confirmed in the Gazette on 22 June 2020 that they were assessing claims of sexual misconduct in 117 cases, it is our view that in the not too distant future,  similar figures may be published in relation to BLM and race claims.