Priorities for diversity in a UK tech workforce
There are over 1.6 million workers in the UK tech industry. However, the sector has the lowest proportion of workers aged over 50 of any of the UK STEM sectors, fewer women in the workplace than compared to other sectors, a lower percentage of disabled workers than average for the rest of the UK workforce, disproportionate representations of ethnic groups, and a significant underrepresentation of certain socio-economic groups, particularly at a senior level.
These statistics and trends were shared at a recent Westminster eForum conference discussing priorities for diversity in tech, where I was invited to speak alongside a panel of experts to focus on the perspective of the UK workforce.
In this blog post, I share some of the key points from my discussion. As a spoiler, my favourite quote shared by a fellow speaker at the conference was “talent is equally distributed, but opportunities are not”. *
Diversity in tech – a two-pronged challenge
When looking at diversity in tech – from the perspective of an employment lawyer – this can be seen as a two-pronged challenge. First, the issue of diversity, or lack thereof, of the tech workforce itself and future talent pipelines. Secondly, the technology and products that are designed and produced, and how a lack of diversity in the tech workforce might impact the sector’s output. The obvious example here is with AI and machine learning and how, without appropriate guardrails in place, outputs generated by AI can lead to bias and discrimination based on the data used to train the machine’s learning. Both of these challenges can tend to perpetuate each other and there are various legal issues and commercial risks for tech employers to be mindful of.
The UK legal position for diversity in the tech sector
The UK has a well-established anti-discrimination legal framework set out in the Equality Act 2010, which protects employees and workers from less favourable treatment based on certain protected characteristics. Less favourable treatment for any protected characteristic would be prima facie unlawful unless a statutory exemption applied, even where action is taken with the best intentions to improve diversity within the organisation.
The Equality Act does, however, prescribe the circumstances in which an employer may lawfully take “positive action” to improve diversity within the workplace. However, what amounts to lawful positive action, rather than unlawful positive discrimination, is not always clear and in reality, the ways in which an employer may take measures to improve the diversity of their workforce lawfully are somewhat limited and restrictive.
This area is also under increased scrutiny. As UK tech corporations keep a watchful eye on the tech landscape across the pond in the US, so too does the DEI landscape. Following the US Supreme Court decision last Summer in Students for Fair Admissions v Harvard, there is now a heightened risk of potential challenge for employers seeking to take affirmative action in order to improve diversity within their workforces and the ruling will have a significant impact on diverse future talent pipelines coming through the higher education system in the US, with ripple effects for the tech sector globally. For example, when the University of California’s system eliminated affirmative action back in 1995, black student representation at UCLA dropped from 7% to 3.9% in just three years, and to less than 2% by 2006. Likewise, when affirmative action was banned at the University of Michigan, black undergraduate enrolment declined from 7% in 2006 to 4% in 2021.
All of this is important for tech employers to understand in order to manage legal risk, whilst also seeking to improve the diversity of their businesses and meet the increasing pressure to focus on diversity, not only from investors, but also consumers and regulators, as well as meeting industry expectations where societal trends can rapidly evolve at a speed at which laws and regulation cannot always keep pace with.
Priorities for advancing diversity in UK tech workforces
As we enter a new year, we have reflected on how the legal and regulatory landscape might prioritise advancing diversity in the UK tech workplace. Whilst these suggestions offer more food for thought than suggested policy changes for the sector, they reflect many of the challenges faced by the UK tech industry when prioritising diversity and inclusion.
1. Should social mobility be a protected characteristic, or treated with equal prominence in measuring workplace diversity as other characteristics?
Social mobility or socio-economic background is not one of the nine protected characteristics under the Equality Act. And yet, various research and social science statistics tell us that social class can be a barrier to career advancement comparable to other characteristics. Diversity issues rarely exist in isolation and a person’s socio-economic background will often interact with other parts of their identity, such as race, religion and gender, which are legally protected characteristics. This also creates the risk of a ‘double disadvantage’ for some employees, where they suffer a disadvantage both because of their social background and because of a protected characteristic.
Championing social mobility in the tech sector could therefore help to improve the position of people with other diversity characteristics and help to achieve greater diversity in the long-term, as well as helping to nurture a wider future talent pipeline coming up through the ranks and in higher education. Increasingly, we are seeing employers across a range of sectors seek to understand the socio-economic makeup of their workforces, with some voluntarily publishing demographic data and undertaking pay gap analysis of their teams, and we expect these trends to continue in the coming years.
2. Is further demographic data and pay gap reporting required on a mandatory basis to drive change?
As the requirement for in-scope companies to publicly report on their UK gender pay gaps continues, the current UK Government has confirmed it will not be introducing a mandatory requirement for companies to report on their ethnicity pay gaps. However, many employers choose to do so voluntarily. Pay gap reporting is a useful tool to sharpen the focus on diversity, particularly at a senior level. In the coming years, we expect voluntary pay gap reporting across other diversity strands will increase and tech employers may look to drive momentum in this space, in order to remain competitive, help achieve long-term and sustainable change and attract and retain that diverse top layer talent.
3. Is greater regulatory oversight, supervision and enforcement needed?
Whilst there are arguments that regulators are not the right bodies to incorporate diversity into their supervisory and enforcement frameworks as organisations should remain free to design their own objectives and strategies to suit their business, progress for diversity across the sector remains slow. Arguably, regulatory focus - to some degree - may be needed to accelerate change.
The UK financial services sector is ahead of the game on this. Last year, they published consultation papers to boost diversity and inclusion across the sector, with wide-ranging proposals including the setting of mandatory diversity targets for in-scope firms and publishing demographic diversity data, as well as data measuring a firm’s inclusivity. If enacted as proposed, these changes would mark the boldest attempt by a regulator to move the dial on diversity and inclusion in its sector, setting an example for other sectors, like tech, to follow. Whilst the UK tech sector is not a heavily regulated industry in the same way as financial services, increased pressure, oversight, and supervision may be welcome – or pushed - from other trade bodies, government committees and industry watchdogs.
The business case for prioritising diversity in all workplaces, including tech is well-established and has never been clearer. And yet progress in some parts remains slow. Whilst talent pipelines cannot change overnight and to stay on the right side of the legal line employers will need to take a proportionate approach, diversity in tech makes good business sense and should be prioritised alongside creating inclusive cultures as a board and senior management level issue and as part of good governance and sound risk-management.
With thanks to the Westminster eForum for inviting me to join their conference and to my fellow speakers for facilitating such insightful and engaging discussions.
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