The benefits of employment equality law protection for talent management and retentionWednesday, 15 February 2017
"Diversity is a competitive advantage”, according to Michelle Ní Longáin, a senior partner at law firm ByrneWallace. “And that’s certainly something that has been recognised by a lot of organisations in the public and private sector.”
Ní Longáin works extensively on employment law and also heads the firm’s public sector group. “The HSE has a HR strategy which includes matters like diversity within it, and I think that’s very important,” she said.
Equal opportunity employment starts on the outside and is enforced through legislation, she noted. “Whereas diversity management starts internally, through the efforts to create an atmosphere of equality and a fully inclusive organisational culture of work, the two can work together.”
But it needs to come from a place of wanting to promote substantive, and not just formal, equality, she said. You can only get to this point by taking into account the “specifics in situations of members of certain disadvantaged groups, and breaking that cycle of disadvantage, and addressing under representation”, she said.
Public sector bodies have a “particular onus”, Ní Longáin said, to have a regard for “the need to eliminate discrimination”, and must promote equality of opportunity – be it with regards to their staff or the persons to whom they provide their services. And beyond that, they must protect the human rights of these same cohorts. “That’s laying down a very important standard for public sector bodies to be aware of. And if you’re a private sector body, why wouldn’t you want to do this too? It’s a good thing to aim towards.”
Businesses can get it wrong and go too far, she said – and need to distinguish between positive action and positive discrimination. “Positive action is offering people targeted assistance so they can take full equal opportunities, whereas positive discrimination is saying that you’re only going to employ women, or that you’re only going to employ men, or only employ people of a particular nationality, or whatever category it is.
That’s going too far and the law doesn’t allow that. “What you want to have is not an automatic preferment of a group, but rather a way of looking at how you can manage it, and how you can provide support to people within strict limits of proportionality and allow them to progress within the workplace.”
There is a European legislative framework for this, she said. The Treaty on the Functioning of the European Union allows for member states to adopt measures that provide for specific advantages that make it easier for the under-represented sex to pursue a vocational activity, for instance, and allows member states to prevent or compensate for disadvantages in professional careers.
And specifically in Ireland, she said, employers should take note of the tools available to them to increase diversity. “Our equality act is not just an employment rights statute saying that there’s to be no discrimination. It is also a diversity enabler for employers. And I think not that many people have taken that on board.”
This article was originally published in the Sunday Business Post on Sunday, 12 February 2017 and should not be republished without permission.
Pictured left-right: John Ryan, chief executive, Great Place to Work; Michelle Ní Longáin, employment law partner, ByrneWallace; Donal Sheahan, HRIS project manager, Bon Secours Health System Ireland; Gill Brennan, chief executive, Irish ProShare Association; and Phillip Welsh, director of strategic HR, organisational development and change management, Children's Hospital Group
For further information or general advice in relation to equality at work and managing diversity, please contact Michelle Ní Longáin or a member of the ByrneWallace Employment Law team.