Thursday 7 September 2017
Eduardo Reyes argues that lawyers can work with HR to promote equality and diversity in their organisation.
Like most In-House Perspective readers I work in a large, complex building: it has three postal addresses, and the legal and human resources (HR) departments are located at opposite ends.
Traditionally in a large organisation the journey between the two offices was made by one or other department when a problem arose. For example, an employment lawyer was needed when the mechanisms available in the ‘softer’ world of HR were not sufficient.
In today’s workplace, however, there are sound reasons why the in-house legal department should take a more strategic role in employment/HR matters. In a well-run organisation there are several reasons why this is important, which are not just down to points of law.
In-house lawyers should push, nicely, for a greater role in HR because they can bring insight from experiences of how work-based relations have gone wrong, based on a longer-than-average corporate memory; because their ‘ringside seat’ within the organisation gives them a fairly objective insight into the way it works; and because they are involved in, or are aware of, relevant debates within the legal community on matters such as improving equality and diversity.
Let’s take the last point. We are all familiar with the ease with which non-lawyers turn to legalistic and cumbersome language when asked to express an agreement or the terms of something: you can feel the fear in their ‘drafting’ of being held responsible for a situation.
The involvement of a lawyer in this process may give non-lawyers the confidence to reflect other aims more effectively – such as a ‘policy’ that reflects the organisation’s values.
‘"Here is the rule we are setting," a lawyer has the authority to pitch in and say. "Now, does it match our stated values?"’
The point is well made by Rachel Reeves, who runs a consultancy advising law firms on their transgender employment policies (Global Butterflies). A policy, she points out, is ‘your shop front’.
The ideal is a ‘positive statement’. ‘Some … are quite cold,’ she says, whereas employment policies ‘should be written in a really positive, living and vibrant way’. When a lawyer stands behind that rewrite, their colleagues’ confidence in the approach increases.
That is especially the case where a policy relates to diversity, but there is a broader application. HR policies can read as if the workforce is not trusted. If that mistrust is well placed, it is reasonable to ask the more fundamental question: why are we employing people we do not trust?
A proactive approach by the legal department to asking such questions and learning lessons from HR matters also recognises the legal team’s function as the ‘corporate memory’, in an era when chief executives might change every three years.
‘We take reconciliation and mediation… very seriously,’ says Liza Battat, head of the employment law function for at Aon UK. Before positions harden into litigation, there is a chance to look at ‘the periphery that goes around somebody who is bringing a claim’. An employee, for example, may have valid points they have ‘not been able to articulate’, which relate to matters the organisation should address. External counsel may not be the best lawyers to ensure such points are followed up.
When in-house lawyers review the details of a possible dispute in the context of a corporate restructure, they can uncover errors in commercial judgement – at a point in time when those errors can be fixed.
Alan O’Rourke, Assistant General Counsel at Oath, recalls scenarios where ‘you’ve got remote managers who don’t know the individuals and they don’t necessarily know the local business case… and they make remote decisions’. Here a redundancy consultation, where lawyers are viewing the detail, can be much more than going through the motions.
The in-house legal team are also in a position to ‘sense-check’ the response to headline news, often based on their own experience of tackling issues around equality and diversity in the legal profession.
An example that springs to mind is the recent European Court of Justice judgment on wearing religious headscarves at work. A joint judgment in the cases of two women, from Belgium and France, who were dismissed for refusing to remove their headscarves, was delivered earlier this year.
The court said: ‘An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.’ The employers were G4S, Belgium and Micropole, France.
Cue, a fairly hysterical response on all sides – and the assertion in sections of the media that the result would be a headscarf ‘ban’.
Not so, lawyers who have had involvement in promoting equality and diversity can counter. They will know the lengths that firms they instruct have gone to, to create a ‘safe’ space by being outwardly diverse.
That will include having staff and fee earners who wear headscarves, and perhaps a rainbow flag on the front reception desk (as happens at Gowling WLG). ‘Here is the rule we are setting,’ a lawyer has the authority to pitch in and say. ‘Now, does it match our stated values?’
Eduardo Reyes is features editor of The Law Society Gazette and a former editor of
In-House Lawyer Magazine.