Organisations are increasingly focusing on their culture. In this hot topic, we consider how culture is often linked to equality and diversity considerations, the ways cultural change often comes about, and how different organisations take on that challenge in respect of their employees and customers.

What does cultural change in Scotland look like?

Cultural change commonly happens gradually, either as a result of specific areas of focus for management or staff (an organisation may have a five-year plan to improve social mobility), or external factors (legal changes or trends in recruitment can drive a change in policies). Often, an employer will be looking to the future and trying to ensure that their approach is agile enough to change alongside society.

Sometimes, cultural change is more sudden, with the pandemic being an example of an external factor causing an instant seismic shift in workplace norms in a way that was unexpected and outside organisation's control. However, the way an organisation chooses to design its long-term response to Covid fits more into the gradual culture change category above. Some employers are embracing flexibility and home working, with those at the other end of the spectrum seeking to cultivate a culture of people being together in the office as much as possible.

Perhaps the most challenging form of cultural change is one born out of problems coming to light. There are a number of recent examples of this happening within Scotland. When allegations of bullying were raised by whistleblowers in NHS Highland, this led to a public investigation. Subsequently, NHS Highland embarked on a significant cultural change project, where they worked with whistleblowers to co-produce their innovative Healing Process. By focusing on listening to and learning from the issues raised, they were able to not only help individuals, but also to understand how to build a new culture going forward. Another example is a well-known Scottish brewery that made headlines following staff complaints and responded to a complex situation with commitments to listen and make cultural changes.

Cultural concerns are not just relevant to employers. Issues of systemic racism were raised and publicly investigated in connection with City of Edinburgh Council schools and within Cricket Scotland.

These examples show how cultural change can come about as a reaction to specific problems which arise entirely by surprise, or which may have been lingering in the background, but were not prioritised until the matter gained more attention. It could well be that the likelihood of an issue sparking public attention is intertwined with areas of particular social interest at the time. The #BlackLivesMatter movement could have been relevant to the race-related concerns cited above. 

Where does equality fit in?

In Scotland, as with the rest of the UK, the legal requirements around equality are primarily contained in the Equality Act 2010. As a minimum, organisations should ensure they meet those standards. 

Sometimes, cultural issues will be directly connected to equality. The racism cases above are examples. So too are more recent trends which see employers acting to support those experiencing menopause in the workplace, or ensuring greater inclusion on the basis of gender identity and neurodiversity. 

Other aspects of culture are not directly connected to equality issues. Bullying or problematic working practices can affect all employees (although it is not uncommon to find that, even when a problem seems to affect everyone, minorities can experience the most serious impact).

Why is this a legal issue?

Equality and culture issues arise in many contexts. We see HR, training providers and PR teams addressing these points regularly. It can become a focus for leaders too, as they try to ensure their culture stands out for the right reasons and part of that is ensuring inclusivity for all. Equality and culture will now commonly feature in ESG plans, or on board agendas. 

The legal aspects should not be overlooked. Getting it wrong (by act or omission) can lead to significant legal claims, damage to the business or a long road to create meaningful improvements under scrutiny. Another important decision can be if and when it may be best to stand up, admit a problem and apologise. That is not free from legal risk but can be a significant step in any journey to making authentic change. In order to choose the best course, it is key to understand the legal landscape surrounding the issue.

We sometimes see examples of efforts to get it right inadvertently falling foul of the Equality Act and, in fact, being the source of a new problem. This could be a result of overzealous efforts to redress inequalities by focusing on positive discrimination – providing help to underrepresented groups will very rarely justify directly discriminating against others. Or it could be that a business, again with good intentions, focuses on issues currently high on the social agenda (for example, extra support for employees experiencing long-Covid or menopause) but fails to consider its wider obligations. There is no concern with offering that additional assistance in itself. The legal issue can arise if another employee with a disability does not feel they are receiving equivalent support when they may be entitled to the same or even more favourable treatment. The Equality Act places certain obligations on employers to make reasonable adjustments to support disabled employees, regardless of their disability. In practice, legal concerns often arise if an individual with a stigmatised condition, or mental health concern, feels that their employer is going above and beyond to support others but not them, particularly if the others are not technically disabled for the purpose of the Equality Act. 

How can you get ahead of the curve?

• It is easier to keep up rather than catch up, so identifying possible cultural concerns before they turn into a more public problem is the first step. This involves having a practice of listening and being alert to areas ripe for change.
• Once you are aware of the issue, take steps to understand it, address it and tailor your approach in the circumstances. In some situations, that will involve quick unilateral action led from the top. In other cases, it will be about engaging with people to ensure that they are listened to. The process you use to improve culture can be every bit as important as the solutions you put in place.
• Agree on actions and learnings. Ensure these are meaningful and tailored to your business. Often, having visible support from the top can help ensure that change happens in practice. 
• Culture is an ongoing project, so keep it high on the strategic agenda, both in terms of monitoring progress on existing areas of change and identifying new ones. 

Elouisa Crichton, Counsel in our UK PRM team based in Scotland, is an expert in employment and equality law, with particular experience of high-profile cultural change projects and investigations.