Affinity networks and employee resource groups: what are the employment law risks?

Employee resource groups (ERGs), affinity groups or diversity networks are internal groups for employees who share a particular characteristic or element of identity and their allies. They would include, for example, your Pride network and your disability group. There are multiple benefits associated with these groups, for example they can:

• operate as support networks, giving employees a space in which they can share experiences and find mutual support and encouragement;
• drive forward practical initiatives to improve diversity and inclusion – for example, almost all UK listed companies cite the work of their ERGs when reporting on DE&I efforts;
• help formulate practical policies and guidelines; and
• hold the organisation to account.

These employee resource groups are nothing new and have been around for years. But we’ve noticed a recent increase in the number of employment law questions we’ve been getting arising out of these groups, how they are set up and how they operate. What’s emerging from our discussions with employers is that organisations can open themselves up to risks by not thinking carefully about the focus and purpose of these groups and by not putting in place ground sufficient rules or governance structures.

Here are four key employment law risks that we’ve identified in relation to diversity networks and employee resource groups.

Risk 1: the risks of not having a diversity network or employee resource group

Before coming on to the risks associated with operating these groups, it’s sensible to start by addressing the increasing risks of not having them at all.

If you are a large employer and you don’t have certain diversity networks or employee resource groups, this could be used against you in a discrimination claim. We saw an example of this in a recent transgender harassment claim against a large bus company. In that case, the Employment Tribunal saw the absence of any kind of LGBTQIA+ group as a telling sign. It commented that the lack of such a group was “surprising” in such a large employer. On the facts of that case, the tribunal wasn’t convinced there had been any actual harassment, but the absence of an LGBTQIA+ group was one of the reasons why the tribunal thought the company would have had no defence to the harassment claim if the alleged harassment had been proven. (For more details of this case you can listen to our podcast for in-house employment lawyers).

So, having no such groups can expose you to increased risk of liability, at least if you’re a large employer. But this raises the related issue of whether you are required to facilitate or sponsor every type of ERG. One of the questions which we’ve encountered recently relates to whether employers can step in and decide that a proposed employee resource group should not be taken forward. Is it discriminatory if you support or even help create some groups while refusing to endorse or adopt others? On the other hand, is it discriminatory to facilitate groups which may be seen as hostile to members of other often pre-existing groups? An increasingly common example here would be the creation of ERGs for those who hold “gender critical” beliefs. For more on cases dealing with the protection of those beliefs and of manifestations of them, see our recent article.

This is a particularly sensitive issue which requires careful handling. New groups do not necessarily need to be created, and much depends upon the purpose of the proposed group. For example, is the real reason behind a request for a new group that other groups are perceived to have gone too far, with the result that some employees feel excluded and want a group representing their views? If so, the answer is unlikely to be a new group.

Risk 2: the risks of not having strong governance of your diversity networks or employee resource groups

On the one hand, you don’t want to be too prescriptive about the work of your employee resource groups. They are supposed to be an informal and broadly self-run community. Too much control and influence can undermine their objectivity and ability to hold an employer to account. On the other hand, if you have no rules governing their operation, you may be leaving yourself more exposed to arguments about discrimination or harassment. There are three key risks here:

• The ‘bad actor’ risk. What if an employee wants to join, for example, your faith network purely to argue their opposition to everything that it stands for? Most groups do not try to restrict membership to people who can demonstrate that they possess a particular characteristic, or are allies of those that do (and doing so is legally tricky, although arguably possible). So can anyone join, and then say what they like?
• The ‘who decides?’ risk. What if there is little alignment within a group over what they should be doing? What if the group is stuck in internal arguments and calls on the employer to make judgment calls on sensitive issues?
• The ‘going too far’ risk. What if a group invites a controversial speaker to an event, who says things that some employees find offensive or upsetting? What if the group comes up with campaign ideas that might tip into unlawful positive discrimination, or cause other employees to feel offended or uncomfortable?

One option here is to work on statements of purpose and ground rules. These could for example, make clear that membership is open to all but members are expected to subscribe to – or at least not seek to undermine - a particular purpose. They could set boundaries for organising and behaviours at or on events, chat forums and social media. They might also clarify how the priorities of the group will be established, and by who. If you are an in-house employment lawyer, you may also want to clarify when you will be consulted, for example, on the lawfulness of any initiatives.

Risk 3: the risks of employees spending too much time on affinity networks

Of course, you want your employees to spend time on employee resource groups. You want employees to be giving up their time to drive forward initiatives that make the workplace a better and more inclusive place. This brings a host of business benefits. You no doubt champion the work of your affinity networks in recruitment literature, tenders and pitches, and you would not be able to do that without employees investing their time in this.

We are hearing more concerns, however, about some employees spending a disproportionate amount of time on these networks. This can be tricky to manage if it gives rise to concerns about the employee’s performance in their main, original role. A related concern is that some groups increasingly seem to be taking on a representative role by, for example, accompanying employees or advocating for them in grievance or other procedures. This can also be time consuming. Again, this might need managing through ground rules, individual line management and through having sensible and sensitive conversations with those leading ERGs. Some employers navigate this by voluntarily offering up an amount of working time that can be spent on ERG matters, though you may find this too prescriptive.

Risk 4: the risks of asking your affinity networks or employee resource groups to make up for historic inequalities

Affinity networks and employee resource groups should be holding employers accountable and helping to drive change. But there is a risk of these networks being used or relied upon to find the solution for historic inequalities. For example, it should not be the problem of the women at work group to fix a lack of female representation in the C-Suite. If that happens then the employer risks avoiding responsibility (or being seen to avoid responsibility) and employees becoming cynical about the employer’s commitment to inclusion.

With that in mind, it is important to make sure that consulting with ERGs on specific issues – adopting the ‘nothing about us without us’ mantra – does not become unreasonable over-reliance.

In conclusion

Affinity networks and employee resource groups are important and increasingly necessary for promoting diversity, equity and inclusion in the workplace, but they can also give rise to some risks. We’ve highlighted some of the ones we’ve come across above, but this is not the end of the story. For example, multinational companies can face sensitive issues around LGBTQIA+ networks when operating in certain countries, which are not discussed here. Even within the UK, however, the risks can be tricky to manage. As explained above, we think that some of the key mitigations are:

• Make sure you are supporting groups across key inclusion concerns if you are a large employer.
• Have clear principles and governance around what the groups are supposed to do (and not do) and who can join.
• Be aware of the risk that employees might end up spending too much time on ERG activities and this might need to be addressed through sensitive early engagement.
• Don’t expect affinity networks to provide all the solutions.