Whistleblowing the Lack of Performance Inclusion

When Diversity Policies Fail: Whistleblowing the Lack of Performance Inclusion

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Diversity, equity and inclusion (DEI) are words often heard within the corporate world, and lots of organisations understand the importance of DEI being part of their operations. However, in some cases, DEI policies are being created and launched by businesses to highlight their commitment to employees and the level of progress they’re making, but the reality is that many are experiencing something different to this and the workplace is anything but inclusive. 

Recruitment processes are still the same, career development pathways favour specific groups and even though many businesses seek employee feedback on DEI policies, there is very little change or no influence at all. If this sounds all too familiar, you may be experiencing the opposite of performance inclusion – where businesses appear to be committed to DEI, but no inclusive ways of working are evident.

Within this blog, we have explored why tokenistic policies are failing and how blowing the whistle can expose the gap between what is being talked about and the actual reality, highlighting what legal protections are available for professionals. 

What is Performance Inclusion?

Performance inclusion is a concept that ensures all individuals, regardless of their background, identity or ability, are given equal opportunity to perform at their best within an organisation. It focuses on creating a working environment where everyone feels valued, respected and supported. Unfortunately, when creating DEI policies and strategies, some organisations fail to embed change into operations. Businesses may talk about equality, but unfair recruitment processes, equal pay and career development processes and opportunities remain the same. 

Why is Lack of Performance Inclusion a Problem?

When businesses focus more on them looking inclusive instead of actually being inclusive, this can result in a negative impact on several aspects of the organisation. Below we have highlighted some of these:

  • Employees can feel undervalued, struggle to trust their employer and feel disillusioned. This is especially true for those who are from underrepresented groups who potentially have been promised change but continue to face the same barriers.
  • The culture within the workplace becomes fragile due to a lack of trust and potentially promised change that no one sees.
  • Staff retention rates drop as employees who feel they are being ignored or do not see change that has been promised, leave.  

When to Blow the Whistle and Speak Up About the Lack of Inclusion

If you are witnessing tokenism policies at work, you might be wondering whether you have the right to raise concerns and what protection there is available to you. The good news is that you do have rights, and the law is there to protect you.

Whistleblowing is the term used when an employee speaks out because they believe something is seriously wrong at work. This could be something that’s happening now, has happened, or is likely to happen in the future. When it comes to diversity, equity and inclusion in the workplace, this could include things like:

  • Discriminatory recruitment or career development opportunities
  • Exclusion from meetings
  • Misleading messaging and promises about DEI progress and processes 
  • Ignoring employee feedback from inclusion groups

If the above resonates with you and you have raised concerns, or are thinking about doing so, you may be protected under whistleblowing legislation.

What Does the Law Say?

Under the Employment Rights Act 1996, workers are legally protected when they raise concerns about how they are being treated at work. This can include raising concerns about discrimination, lack of equality and inclusion in working practices, health and safety issues, or unethical and unfair behaviour.

The Act provides three main rights:

  • It is automatically unfair to dismiss an employee for making a protected disclosure
  • It is unlawful to subject a worker to any detriment for making a protected disclosure 
  • Any term in the worker’s contract or any other agreement is void in so far as it purports to preclude the worker from making a protected disclosure 

What is a Protected Disclosure?

Not every workplace complaint qualifies as whistleblowing. A protected disclosure is the act of revealing information that shows wrongdoing has taken place. For a disclosure to be considered as protected, it must meet the following criteria:

  • A disclosure must take place within the meaning of the Act
  • A disclosure must be a ‘qualifying disclosure’
  • The disclosure must be made by the worker who has experienced the wrongdoing

A qualifying disclosure is when a worker reasonably believes they’re acting in the public interest and that their disclosure is simply wrongdoing. The belief doesn’t need to be correct, just genuine. Disclosures must be made honestly and to the appropriate person. 

If your concerns qualify as a protected disclosure, then you are entitled to the following legal protections:

  • You cannot be dismissed for whistleblowing
  • You cannot be treated unfairly or suffer any kind of detriment for raising concerns

In summary, the above means you are within your rights to raise genuine concerns you may have about workplace inclusion and diversity fails.

What Does All This Mean for You?

If you’re feeling uncertain about your employer’s diversity policies, what they are promising and what is the reality, then you are not alone. Many individuals within the workplace are likely feeling unsupported and disheartened, and although the organisation may talk about inclusion they could be failing to make change that is meaningful.

It is important to remember the following: 

  • You can speak up without fear of losing your job
  • You should not face any form of retaliation, such as bullying or being excluded
  • You have rights

Seeking Legal Advice

Should you be worried about what you are experiencing or have witnessed in the workplace, and you are unsure whether your concern qualifies as whistleblowing, please contact us. Damian McCarthy is an experienced employment law specialist who supports individuals and who care about fairness, inclusion, and integrity. He can provide legal advice and help you navigate the complexities of employment law. 

Get in touch with Damian McCarthy for confidential and structured support. He is here to help you. Please get in touch today to discuss your case and learn more about your options.