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People, diversity and inclusion, and safety

People, diversity and inclusion, and safety

Overview

At Travers Smith, diversity and creating an inclusive workplace is valuable to us and to our clients. 

You can find out about how we are approaching diversity and inclusion in our own business here. The COVID-19 crisis has shone the spotlight on employers’ health and safety obligations towards their staff, visitors to premises and for retail businesses, customers. An outline of the key legal and regulatory issues and risks and opportunities for the business community in these areas are set out below.

Key issues

Workplace culture and employee engagement at all levels within an organisation have become increasingly important over the last few years. Prevalent issues have included #MeToo, enhanced regulatory obligations and the 2018 UK Corporate Governance Code. We are expecting this to continue, with a significant increase in employers promoting a “speak up” culture. Organisations and senior leadership within them are increasingly accountable for these issues, attracting greater scrutiny in this area and in some instances, impacting on bonus targets.

Health and safety - Businesses have a legal duty to ensure that the health and safety of their employees, and other persons affected by their undertaking, is appropriately managed, assessed and protected across all their workplace activities, extending from their physical welfare to their mental wellbeing. Whilst the basic legal framework is not particularly new in this respect, a series of recent high-profile cases show that the enforcement risk, potential for reputational damage and adverse commercial impact to businesses in this area is greater than ever before.

The measures put in place by businesses to protect staff and other visitors to premises, and to facilitate a return to work post-COVID, highlighted the existence of the myriad of statutory controls relating to specific health and safety risks, as well as the common law duty of care on employers to take steps to contain infectious diseases and prevent exposure to the risk of infection. For example, COVID-19 has been declared an infectious disease subject to statutory control, under the Infectious Diseases (Amendment) Regulations 2020.

Health and safety offences attract criminal liability and, since 2016, new sentencing guidelines have raised the prospect of very significant financial penalties for health and safety breaches, deliberately intended to ensure that companies and individuals take health and safety responsibilities seriously.

Overview of relevant law and regulation

Risks for employers

Employers who fail properly to engage with people, diversity and inclusion and safety issues face a variety of risks, both legal and otherwise: 

  • Risk of legal claims – e.g. from employees, contractors and suppliers. Potential for personal liability for certain “speak up” and discrimination claims
  • Potential liability for breach of health and safety obligations, which carry potentially substantial criminal penalties, alongside reputational damage
  • "Comply or explain” – failure to comply with or adequately explain a decision not to comply with the UK Corporate Governance Code may result in increased scrutiny by investors holding directors to account
  • Reputational risks – people, diversity and inclusion and health and safety issues are increasingly attracting high-profile media attention
  • Business risks - risk of low employee engagement, poor culture and high attrition

Our work

Our people, diversity and inclusion offering to our clients includes:

  • advising on whistleblowing, discrimination, harassment and equal pay claims
  • advising clients on their pay reporting obligations, including on gender pay gap and ethnicity pay gaps
  • carrying out and advising on employee grievances and investigations, for existing clients and companies who want to involve an independent firm (for example where their existing legal advisors are conflicted)
  • advising on the use of confidentiality provisions in non-disclosure and/or settlement agreements
  • developing Codes of Conduct and other policies and procedures, and advising on their effective implementation
  • delivering practical training on these topics (to boards, senior executive teams, HR professionals and other employees)

Our Operational Risk team advises a range of businesses across all industry sectors on managing health and safety risks, providing practical boardroom risk analysis and strategic advice in relation to:

  • health and safety responsibilities, developing policies and procedures and enforcing day-to-day compliance with health and safety regulations
  • parent company risk and directors’ duties

We also have a dedicated Crisis Response team which specialises in crisis and disaster response, reputation management and preventative counselling.

Recent work

Examples of work in this area include

Contacts and further reading

Read Doug Bryden's Profile

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