Clifford Chance

UK Employment partner Alistair Woodland and Hong Kong Head of Employment Anita Lam discuss how we’re advising a range of international clients on inclusion policies, procedures and training, in part as a result of public and employee interest fuelled by external movements such as #Metoo and #BlackLivesMatter.

How are we helping our clients respond to inclusion issues in the workplace?

Alistair: Across the firm, we’re using our strengths in employment law and strategic planning to advise on diversity and inclusion issues, as well as to help our clients conduct policy reviews and develop new governance frameworks to monitor the effectiveness of inclusion policies. These could be related to policies like enhanced parental leave, or tracking the outcomes of investigations or grievances into matters concerning – bullying or harassment.

We are also doing a lot of work with clients to help them understand requirements relating to gathering diversity data across different jurisdictions. Transferring and processing data once it has been collected gives rise to some quite complex issues.

Anita: From a disputes perspective, some employees under investigation may have to learn the “hard way” that certain unacceptable conduct overlooked in the past will no longer be tolerated. We also see growing interest in inclusion issues as a result of increased attention on companies’ Environmental, Social and Governance (ESG) agendas, promoting a sharper consciousness around responsible corporate governance, on which we are well positioned to provide assistance.

How has client appetite for this advice changed?

Anita: In response to external events or movements, issues relating to diversity and inclusion have understandably escalated. They now have the highest attention at board level. This is particularly so where complaints are brought against the top executives. In these circumstances, external lawyers are often mandated to conduct the investigation so that it is seen to be thorough, and that any recommended remediation action is fair and appropriate.

Alistair: Three or four years ago, diversity and inclusion was treated like any other sort of risk. Now organisations are much more aware of the reputational damage that can occur if these topics are not addressed effectively. You only need to look at the press, stakeholder and, in some cases, regulatory interest in this area to see how seriously these issues must be taken.

What do you think are the most important things for our clients to consider when reviewing or developing their approach to inclusion policy?

Alistair: A strong internal speak-up culture – one that is focused on wellbeing and engaging with staff at all levels – is really key to dealing proactively with risks or issues relating to diversity and inclusion. Training, strong anti-harassment policies, removing bias from recruitment and helping develop effective whistleblowing and grievance process are some of the ways we are helping clients to take positive action here.

Anita: Effective culture change is really about helping people recognise what unacceptable behaviour looks like and why, the outcomes of that behaviour and how best to enable people to come forward. For this reason, the training we offer to our clients is very much focused on contextual examples which discuss how discrimination or grievances arise in the workplace and where targeted intervention should occur.

Why do you think it’s important that Clifford Chance plays a role here?

Alistair: Not long ago, discrimination issues were often viewed purely in terms of the risk that they posed to employers, and the potential financial exposure. The fact that clients are now eager to engage with outside counsel to ‘dig up the weeds’, however awkward or uncomfortable that may be, demonstrates the important role we can play in helping our clients achieve their objectives in this area.

Anita: Yes, as a global law firm it’s important that we acknowledge our influence here and, in line with our own principles, help clients tackle any of these issues ethically and responsibly. From a broader inclusion perspective, this not only makes our work more interesting but much more rewarding.