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Freshfields Risk & Compliance

| 3 minutes read

WorkLife 2.0: the developing diversity landscape

In this blog post in our series 'WorkLife 2.0: what to expect in 2021' we consider recent developments in the diversity landscape and what legislators might be considering this year.

In June last year, we explored the diversity challenges that might arise from the prolonged period of homeworking. In that blog post we considered research showing that working mothers are likely to be those most affected by the challenges of the move to homeworking and the broader impact on diversity that could be caused by the increase in homeworking, for example those from lower incomes not having the equipment or environment that they need to work most effectively.

Nine months later, it is clear that diversity challenges driven by the current working environment remain and there is widespread recognition that it is more important than ever for employers to take positive steps to improve and strengthen the diversity of their workforce.

In recent months, we have seen employers revisit their diversity policies, support existing diversity initiatives (for example, charities that are focused on the Black Lives Matter movement) or launch their own new diversity initiatives (for example, to improve the socio-economic diversity of their recruitment pool). In our recent briefing, we suggested some practical steps that companies could consider as part of their efforts to achieve greater diversity. The briefing also includes a progress report on the core gender and ethnicity-focused diversity reviews that are relevant to UK quoted companies.

In relation to gender, it is expected that in 2021 there will be increased action from the EU to encourage the narrowing of gender pay gaps, following the recommendations of the European Council to the Commission on 2 December 2020. The Council called for there to be an increase in efforts to reduce the gender pay gap and gender gaps in care, including by inviting Member States to further develop or establish a framework for the sharing of paid work and unpaid care work between men and women on an equal basis. A recent report into working from home by the International Labour Organisation recognised that, across the globe, women generally do more unpaid care work than men (with women undertaking 76 per cent of this work). This means that on average, each day women dedicate four hours and 25 minutes to unpaid care work as opposed to one hour and 23 minutes for men (though these statistics vary significantly between countries).

Some legislators are already improving their local laws concerning gender equality. For instance, in Autumn 2020, Spain adopted two new laws to promote gender equality in the workplace, one concerning equality plans and the other, equal remuneration.

Given the possibility of human biases, whether conscious or unconscious, making their way into decision-making in the workplace, artificial intelligence (AI) has increasingly been offered as a solution. However, even AI appears not to be infallible when it comes to the risk of discrimination. If AI is programmed by a non-diverse group, or learns from data from a non-diverse source, there is a risk that it may make decisions that could be discriminatory. By way of example – an AI system, trained to vet applicants based on a scoring system modelled on historically successful resumes submitted to the employer from individuals from a privately educated background, could reject a qualified applicant with a different background. This type of risk has led to regulators voicing their concerns. In the UK the Information Commissioner’s Office has issued guidance on AI and data protection which emphasises a need for human oversight and auditing of AI systems when they are used to make important decisions.

You can read more on human oversight and individual rights and AI systems in the UK workplace in this blog post. In addition, last year the European Commission published its White Paper on Artificial Intelligence – A European Approach to Excellence and Trust in which it proposed implementing mandatory legal requirements aimed at ensuring that the use of AI does not lead to discrimination. Even if AI is the future, it seems that there will still be a need for human oversight. In previous blog posts we have considered how the use of AI can cause discrimination in a recruitment process and ethical questions related to the use of AI in the boardroom.


employment, diversity