The “death of DEI”? Implications for employers

May 27, 2025

The “death of DEI”? Implications for employers

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By Nicole Brendel

Following recent actions taken by the US Government, some UK employers have been withdrawing their commitment to DEI policies. Our expert, Nicole, outlines how these employers open themselves up to the risk of discrimination claims against them.

What is DEI?

DEI refers to three concepts; diversity, equity, and inclusion. These can be defined as follows:

• Diversity in the workplace involves recognising and valuing differences among individuals, including characteristics such as age, disability, race, gender, and more;
• Equity means understanding that equal treatment does not always result in fairness, and that different people may need different support to achieve equal outcomes; and
• Inclusion is about fostering a work environment where everyone feels welcomed, respected, and empowered to be authentic and contribute fully.

In the UK over recent years, there has been a strong move by many employers to introduce policies to promote DEI. A 2023 survey revealed that 57% of UK businesses considered equality, diversity, and inclusion as strategic priorities in recruitment.

What is discrimination?

Discrimination refers to unequal treatment of an individual based on a protected characteristic (such as sex or race). Discrimination is an extremely wide area of employment law, with many risks for employers who do not treat it seriously.

Possible claims an employee can make for discrimination they have experienced at work include:

• Direct discrimination – when an employee is treated less favourably than others due to a protected characteristic;
• Indirect discrimination – acts, decisions, or policies which are not intended to treat anyone less favourably, but which, in practice, disadvantage a group of people with a particular protected characteristic.
• Harassment – subjecting an individual to unwanted conduct related to a protected characteristic; and
• Victimisation – subjecting an individual to a detriment (or dismissal) because they have made, or intend to make, a discrimination complaint.

Employers are expected to not discriminate against their employees, but they are also expected to ensure their workplaces are free from discrimination.

The “all reasonable steps” defence

Discriminatory acts committed by one employee against another employee during the course of employment can lead to an employer being treated as vicariously liable for those acts. This means that an employer can even be liable for acts that they are unaware took place.

However, there is a defence available to an employer in this type of situation; an employer will avoid liability if it can show that it took ‘all reasonable steps’ to prevent its employee from committing a discriminatory act. To rely on this defence, the employer must prove that it had taken those steps before the act was committed, and not just in response to an allegation of discrimination.

If an allegation progresses to a discrimination claim at the Employment Tribunal, the Tribunal will take a two-step approach when considering the defence. Firstly, it will consider what steps the employer took to prevent discrimination. Secondly, it will consider what other reasonable steps the employer could have taken. If the employer is unable to show that it took ‘all reasonable steps’ to prevent acts of discrimination taking place, it will be liable for their employee’s discriminatory act.

The “Death of DEI”?

The above should demonstrate why there are huge risks in employers following worldwide trends and removing or watering down their DEI policies. Having such policies in place can be a key part of an employer being able to rely on the “all reasonable steps” defence.

How can employers demonstrate that they have taken “all reasonable steps”?

The following are all important:

• Policies – implement a diversity, equity and inclusion policy and an anti-harassment and bullying policy, and regularly review those policies to ensure they are still up to date;
• Communication – ensure all employees are aware of your policies and their implications;
• Training – provide consistent training to all staff on equal opportunities and discrimination;
• Suggestions – initiatives proposed by employees should be considered and acted on (if reasonable); and
• Complaints – ensure you deal effectively with complaints and grievances (including taking disciplinary action where appropriate).

What should employers do?

Despite the current social climate, employers should focus on their obligations to their employees. If in doubt, employers should seek legal advice on how best they can do this.

If you are an employer and you need advice on how best to prevent future discrimination claims, get in touch using our contact form or contact Nicole Brendel on nbrendel@darwingray.com or 029 2082 9100 to find out how we can help you.