Diversity, equity and inclusion (DEI) policies are at the heart of the working ethos for many businesses in the modern era, but with drastic upheavals being made in the US, could that soon change here?
Many US companies that operate in this country will be facing change following the controversial scale backs being announced by President Trump on DEI in the workplace, potentially causing concern for UK-based employees if they are impacted.
Changes to US law
Before President Trump entered the White House earlier this year and made his mark with a raft of executive orders, US DEI law contained “affirmative action” provisions - the practice of granting special considerations to minority groups in an effort to encourage diversity, equality and inclusion.
Examples of “affirmative action” include:
However, an executive order issued by President Trump will scale back DEI and remove the requirement for affirmative action, meaning that DEI related factors and goals will not be considered during hiring, review or promotion processes. Instead, these processes are to be based solely on the merit and initiative of individual employees.
The mood music on the subject of DEI in the US follows a far from steady beat. On the one hand, in the recent US case of Students For Fair Admissions v. Harvard, the use of affirmative action in college admissions was deemed unconstitutional, and aligns with President Trump’s recent actions. On the other hand, some major US companies are standing against President Trump’s DEI scale back and openly defending their DEI programmes citing wanting to have inclusive environments where all employees feel respected, and more diverse perspectives from a broader range of individuals.
Will this impact people in the UK?
These changes have caused controversy and combined with the political trajectory, some individuals in the UK, particular those working for companies based in the US, may have concerns about the impacts it could have on them.
Currently, UK law does not contain provisions requiring “affirmative action”, in fact it is likely that such practice would be considered unlawful under the Equality Act 2010. Generally, giving one protected group an advantage to the detriment of another protected group is likely to be considered discriminatory, regardless of there being good intentions behind the decision making.
Instead, the UK Equality Act 2010 contains provisions for “positive action” which is not mandatory but encourages employers to promote DEI in the workplace whilst ensuring that any practices are not unlawful.
Positive Action is the implementation of processes to remove barriers that an individual from a protected group may face and may include:
The UK also places more responsibility for DEI on the public sector via the Public Sector Equality Duty. The duty requires any organisations in the public sector in the UK to consider public statistics and how decisions in relation to their services or policies may impact people who are from particular groups.
Specific duties can include: publishing equality objectives, publishing information on compliance with the general duty and how policies impact people and employees each year, or publish gender pay gap data every year. This means that public sector organisations have obligations that are slightly closer to that of affirmative action when compared to the optional positive action provisions for private UK companies.
It could be said that the US approach to DEI is becoming more akin to UK law on a legal footing. However, it would probably be more accurate to describe it as a brief intersection; as President Trump is aiming to root out DEI programmes and encourage private business to stop any DEI initiatives, the UK moves in the opposite direction by encouraging DEI, and recognising the benefits that such practices can have to employees and employers alike. As a result, this seemingly shared legislative sentiment looks to become increasingly divergent as the US works to scale back DEI and the UK aims to encourage it.
Current legislation relating to DEI in the UK is unlikely to be diluted under a Labour government. The Employment Rights Bill, likely to come into effect in 2026, seeks to strengthen DEI and employees’ rights in the workplace through provisions such as requiring employers with 250 or more employees to publish equality action plans.
The Draft Equality (Race and Disability) Bill also moves to encourage DEI in UK workplaces by giving ethnic minorities and disabled people the right to equal pay. These examples show the UK taking a step further in the opposite, more progressive, direction to President Trump’s DEI objectives.
UK legislative sovereignty
It should be noted that the changes made to US law do not impact UK legislation, both work independently of each other and are determined by the respective democratically elected law makers in each country. Therefore, UK companies with US based parent companies will still be required to implement provisions and treat their employees as deemed lawful by UK legislation, regardless of any changes implemented in the US.
Thrings’ Employment lawyers are experienced in dealing with business matters that affect the workforce, including workplace harassment, and has acted for both employers and employees from start-ups and SMEs all the way to multinational corporations across a wide range of employment matters. To find out how they can help strengthen your polices, and solve your disputes, please get in contact.