Clifford Chance

As a first step, a clear inclusion and diversity strategy requires an organisation to understand the current demography of its workforce and to identify areas of weakness. Businesses that are adopting a data driven approach to inclusion and diversity are looking to collect information from their workforce which can then be analysed and fed into inclusion and diversity strategies that can have a genuine impact. Moreover, external stakeholders (including clients, investors and regulators) are increasingly demanding inclusion and diversity statistics. 

Devising a global approach to the collection and reporting of inclusion and diversity data will be on critical importance to businesses. However, there are clearly a number of employment law and data privacy law issues (including under the General Data Protection Regulation and local implementing legislation) which businesses need to consider before proceeding with a campaign of self-identification. 

Businesses need to acknowledge there is unlikely to be a "one size fits all" approach to collecting data and there are a number of legal and cultural questions which businesses need to ask themselves. 

Our cross-disciplinary team of experts work with clients globally to find the approach that best works for their organisation – whether devising global questionnaires, ensuring underlying data governance is fit for purpose, working with clients to assess results or helping implement strategies based on the results obtained.

The recruitment, retention and progression of diverse talent by organisations is fundamental to a strong inclusion position. Firms may: harness positive action provisions to enable them to draw underrepresented groups into organisations; design cultural surveys to understand how inclusion impact can be improved; or align policies, practices and stakeholders in driving organisational change. 

Boards and senior HR professionals need successfully to draw together and be sensitive to a range of stakeholders, including affinity groups, the business, and individual employees.  

The existence and fitness for purpose of harassment, whistleblowing and grievance procedures that allow employees to identify and speak up about actions and behaviours that could undermine diversity positioning is also pivotal.

We support clients in a full range of actions involved in developing and implementing internal and external inclusion strategies that deliver enduring change, including: navigating local positive action opportunities; establishing mentoring and sponsorship programmes; designing and assessing cultural surveys; advising on policy wording permissibility and best practice; and progress reporting.

At Clifford Chance, we also take our own advice: we aim to change the rules, change the culture and change the lived experience.

Organisations with strong inclusion imprints are underpinned by sound governance and compliance frameworks that drive and support an inclusive and diverse culture. Board composition and diversity, committee terms of reference, board-level contractual expectations, reporting line structures and delegations, remuneration diversity scorecards and performance metrics, speak up ethos and strong management information flows are structures that we help organisations develop and implement. 

Part of excellence in inclusion governance is showing accountability for outcomes, and being able to track and report against change arising from action and activity. We support clients with complying with their own and externally imposed reporting obligations, whether under corporate governance codes, sustainability disclosure frameworks or to ESG credit rating agencies.   

Regulation is increasingly setting the appropriate metrics and benchmarks for inclusion governance, whether through mandatory levels of diverse board ratios, pay gap reporting, or evidencing appropriate harassment policies and grievance mechanisms. We work with organisations to navigate current and emerging global regulatory requirements, not just seeking to minimise risk, but also maximising opportunity for a positive inclusion narrative.

Data governance, in terms of the ability to gather and monitor inclusion to track impact of actions will be key. The governance of emerging technology, and ensuring that controls are put in place to use AI ethically and without discrimination is increasingly becoming a fundamental part of inclusion-aware recruitment and talent management. We are working with boards and senior risk, legal and HR professionals to ensure that their use of AI tools does not inadvertently create unlawful discrimination (acting as a mediator between the technical capability of tools and the requirements of anti-discrimination law and AI legal frameworks). 

A fundamental part of the emerging importance of 'social' due diligence is to audit Inclusion risks and opportunities within your own business/another business (e.g. a target) and in your value and supply chains, and to put in place frameworks for appropriate action globally. 

We can prepare specific diligence reports focussing on Inclusion risks ranging from ongoing discrimination claims, or with gap assessments to identify where policies and processes might be needed or tailoring is required against emerging ESG regulation, or verifying opportunities that profess to be positive from an Inclusion perspective. We can also work with deal teams to teach them to "issue spot" in relation to Inclusion issues that might arise on a transaction. To view more about what services we provide on managing inclusion risk, please go to our People Risk page.

We also audit portfolio companies and prepare recommendations for remediation to get them well-positioned for sale, ensuring that there are no negative impacts in their Inclusion imprint (ranging from gap analysis of 'family friendly' policy suite to the way in which live harassment incidents are handled).

We also advise on post-integration resolution of issues arising from an acquisition or merger (e.g. on-going campaigns to improve inclusion and diversity, pay parity considerations in a newly integrated workforce, or new governance structures and employee engagement frameworks or value frameworks to cover a newly combined workforce).

We know that Inclusion adds not just purposive value, but also financial value, and through focussed diligence, our teams can help you take action to maximise the Inclusion return on investment.