Fieldfisher hosted an exclusive discussion with lawyers and inclusion and diversity leaders of large international organisations in September 2022. A number of issues were discussed, and set out below is a summary of the key themes.
How Much Data Capture is Enough?
- Most organisations have been collecting inclusion and diversity data for at least 2 years, with some longer than that, up to 5 years.
- There is a temptation to collect lots of data, mainly to understand the profile of the workforce. However the reason for collecting the data needs to be clearly articulated and updated, particularly if the purpose of collecting the data changes.
- The data collected tends to focus on under-represented groups, but socioeconomic data is not widely captured at the moment.
- There appears to be a lack of engagement in data collection exercises from dominant groups, particularly white males. More work needs to be done to persuade dominant groups that the data capture is relevant for them too.
- The questions asked need to be continuously reviewed and refined to ensure the data being collected is relevant to the organisation and the jurisdictions it operates in.
- There were different approaches to encouraging staff to engage in data collection exercises. Most took a very cautious approach, whilst others proactively encouraged engagement.
Is Anonymous Data Helpful?
There was a detailed discussion regarding the collection of anonymous data. The reasons for collating anonymous data included:
- Privacy regulators, particularly the ICO in the UK, encouraging the collection of anonymous data.
- The belief that the collection of anonymous data would create trust and therefore greater engagement.
- Trade unions, employee networks, works councils often insisted on the collection of anonymous data.
However it was felt that anonymous data could be too general, and not provide the granular detail that organisations needed to create action plans.
Large international organisations have the resources and systems in place to collate data that identifies individuals protected characteristics. The data is often held on HR systems, particularly workday. This enables organisations to aggregate the data they hold and report it in an anonymous way.
However some organisations were actively pursuing identified data collection ,both in the UK and abroad. Protections were being put around the collection of such data. In particular only data analytics teams would have access to the identified data.
How do Organisations get Data that Identifies Individuals?
Companies like Thompson Reuters and Shell have stated publically they are collecting identified data.
It was agreed that organisations were becoming more confident in using identified data.
However there were challenges. For example identifying those who were a member of the LGBTQ+ community, and using that identified data in different jurisdictions could create risk particularly for globally mobile employees.
On the other hand it was agreed that identified data could help with analysing issues from the perspective of intersectionality.
It was much easier to "slice and dice" identified data and understand what specific action plans should be put in place.
What is the Risk Tolerance in Large Organisations for Data Collection?
It was agreed that there are a number of stakeholders in large organisations:
- Boards are ambitious and often have high expectations about the delivery of meaningful inclusion and diversity action plans.
- Privacy lawyers on the other hand tend to be more cautious, although it was agreed that there had been little evidence of complaints to the ICO.
- Employment lawyers and inclusion and diversity professionals tend to have a higher risk appetite when it comes to the collection of data and in particular identified data.
- Managers often need persuading to assist with the collection of data bearing in mind their other responsibilities.
- HR often hold a lot of data, but their systems may not be able to allow them to prepare reports in the way that the board or the inclusion and diversity leaders want. They are also cautious about sharing any data they hold.
- Unions, employee networks and works councils tend to have a variety of opinions ranging from cautious to a high-risk appetite. Reference was made to a works council in Germany that had successfully obtained a Court Order for the employer to disclose details of severely disabled employees for the purpose of understanding whether a separate representative was needed for that group on the works council.
It was agreed that in some organisations matters were getting out of hand. Everyone was pursuing their own agendas and this was leading to an uncoordinated approach towards inclusion and diversity.
It was also agreed that where various stakeholders could not agree on an approach, an escalation process was required to enable an independent party to make an informed decision on the approach to be taken.
There is no single approach to data capture.
However there is a need for data protection impact assessments and equity impact assessments to be completed and a clear purpose be identified for the collection of data.
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