Redressing the racial imbalance

The public sector must have policies promoting racial equality in place by
the end of this month. Rob McCreath outlines the nature of the changes and warns
that the private sector will almost certainly be expected to follow suit in due

At a conference held earlier this year, David Lammy, MP for Tottenham put it
starkly: "It is still the case that to be black in this country is to be
disadvantaged". Blindingly obvious you may say, but it is sobering to
think that he was speaking after nearly 30 years of race discrimination

It begs the question – will amending the legislation provide any answers? It
is a moot point. In its unamended form the Race Relations Act 1976 was almost
entirely negative. Essentially it forbade certain behaviour and inflicted
penalties for failure to comply. As Lammy readily conceded, there have been
great improvements since 1976. However, his initial statement remains palpably
and uncomfortably true.

The Government hopes its amendments to the legislation will lead to a more
positive and proactive approach to race relations issues in the public sector
and a fundamental shift in thinking and practice overall. The changes have been
made under the Race Relations (Amendment) Act 2000, which introduces positive
duties on public sector bodies. Important aspects of these duties come into
force on 31 May 2002.

Seasoned private-sector HR practitioners will already have twigged that this
is far from being the end of the story. Where the public sector is required to
go, the private sector will almost certainly be expected to follow. The EU
Equal Treatment Directive 2000 will require the definition of indirect
discrimination to be amended in a way which heads in that direction (see
European Race Directive, right). More changes are likely to follow, both
European and domestic, which will affect all employers in similar ways.

For the time being, however, the new duties will only apply to public
authorities. These include government departments, local authorities, the
police, NHS bodies, non-departmental public bodies, public-sector schools and
further and higher education bodies.

The general duty is for public-sector bodies to pay due regard, when
carrying out their functions, to the need to eliminate unlawful discrimination
and promote equality of opportunity and good relations between persons of
different racial groups.

Specifically speaking

So far, so vague. However, this general obligation is backed up by specific
duties and this is where the changes start to look as if they have some bite.
The specific duties are not uniform across the public sector. There are special
specific duties for schools, and for further education and higher education
institutions. These concentrate primarily on staff and students/pupils. Most
other public sector bodies will be bound by the specific duties to publish a
race equality scheme and by particular employment duties.

General and specific duties are backed up by a statutory code of practice
published by the Commission for Racial Equality. The code is currently
available on the CRE’s website ( It will be admissible in
evidence in any legal proceedings and relevant if any provision of the code
appears to the court or tribunal.

The CRE has also published a range of guidance documents which, like the
code, are intended to be helpful. These may also be taken into account in legal
proceedings. Public sector HR practitioners are strongly advised to use the
code and the relevant guidance documents to help them apply the new duties to
their own organisations.

Race equality schemes: the duty

Relevant public sector bodies are required to have published a scheme by 31
May 2002. Similar, but by no means identical, requirements apply to schools and
further education/higher education institutions, which are required to have
published a race equality policy by the same date.

These schemes must state the functions and policies that the organisation
believes are relevant to its fulfilment of the general duty of the RRA or EU
Equal Treatment Directive (2000). In most cases this will include the
employment, development and retention of staff. And policies relating to
recruitment, equal opportunities, training and development, promotion,
grievance, discipline and dismissal.

In the early stages of implementation, however, the CRE advises that it is
wise to try and avoid being bogged down in the detail of such highly specific
employment policies and keep in mind the general duty to promote equality of
opportunity. The CRE’s code also stresses that the weight given to any
particular policy should be proportionate to its potential impact on race
equality. So HR professionals should really concentrate on getting the
important things right.

At the same time as implementing these policies, public bodies are also
expected to make arrangements for assessing and consulting on the likely impact
of the proposed policies. This will involve considering how proposals will
affect different racial groups. If a new recruitment system is proposed, for
example, what impact could it have? How are you going to find out? Do managers
need specific training in dealing with particular issues when assessing
individuals from different racial groups? Who are you going to consult and what
are the arrangements for consultation going to be?

Arrangements for monitoring any adverse impacts also have to be made. These
will vary depending on the circumstances and size of the organisation. They may
include analysis of ethnic monitoring data, employee surveys, random sampling
and focus groups. But there also needs to be arrangements for taking action
when monitoring highlights a problem.

Rather than taking care of everything in-house, the results of these
initiatives are expected to be made public. This includes publishing: the
results of all assessments and consultations; staff training arrangements;
employment duties; the results of racial group monitoring; staff numbers, job
applications and training and promotion applications; and (where the body has
150 or more full-time staff) the number of staff from each group who receive
training, who benefit or suffer as a result of performance assessment
procedures, who are involved in grievance procedures, who are the subject of
disciplinary procedures or who cease employment.

Timing and enforcement

All of these arrangements are officially expected to be in place by 31 May
2002. However, the relevant bodies are not expected to have carried out the
duties by then – they simply have to show they know how they are going to go
about doing them.

Failure to comply with the general duty could lead to an application for
judicial review of the body concerned in the High Court. Individuals, groups of
individuals or the CRE may bring such an application, which could result in a
High Court order requiring the body to take specified steps to comply with its

Failure to comply with a specific duty can only be enforced by the CRE,
which can serve a compliance notice on the body, which then has 28 days to tell
the CRE what it has done, or is doing, to comply. However, although it has wide
powers in this area, the CRE is keen to stress that it wishes to work in
partnership with public bodies to assist them to comply with their duties.

The broad thrust

The purpose of the changes is to create a shift beyond political
correctness, lip service and aspirational written policies that bear no
relation to what is happening on the ground. There is a danger that if public
sector bodies lose sight of this aim, it could all be lost in a snowstorm of
ethnic monitoring data or a freezing fog of box-ticking bureaucracy. If this
happens, the result will simply be vast amounts of futile and meaningless work.

But the specific requirements to monitor and assess have been brought in so
that action can be taken to turn the current situation round. To put David
Lammy’s comments in an employment context, people from ethnic and racial
minorities are significantly under-represented in employment and are scarce in
the higher reaches of most organisations. Those are the key employment issues.
The specific requirements are merely ways to force organisations to
self-examine, identify problems and ask themselves: "what are we going to do
about it?"

In order to comply with the new duties, public-sector bodies will be
expected to set themselves realistic but stretching targets on key indicators,
such as the proportion of members of minority groups in senior and middle management
positions or on fast track for promotion.

Those that are subject to an inspection regime will find themselves judged
on their own targets, or the lack of them. Where necessary, they will be
expected to take positive steps to achieve their targets. These steps will have
to fall short of positive discrimination. It is suggested that they should be
aimed at creating support in the form of networks and pathways and access to
development opportunities, advice and encouragement both within and outside the
organisation. A fair and fine balance needs to be struck. It may be an onerous
task but it’s not an optional one, for the public sector at least.

Robbie McCreath is a partner in Evershed’s Human Resources Group

Key changes to the RRA

Public authorities will be subject to general and specific duties in
relation to race equality. The duties are positive for the most part and backed
up by a detailed code of practice.

– The general duty will apply across the public sector. The
duty is for bodies to have due regard, in carrying out their functions, to the
need to eliminate unlawful discrimination and to promote equality of
opportunity and good relations between persons of different racial groups.

– Schools and further and higher education institutions have
their own specific duties, which relate mainly to students/pupils and
employees. They must have published a race equality policy by 31 May 2002.
Although they are not strictly subject to the employment duties (see next
point), in practice they will have to carry out much the same monitoring and
assessment on employment issues as other public sector bodies.

– Most of the rest of the public sector will be required to
publish a race equality scheme and to comply with the employment duties.

– Race equality schemes are required to state which functions
and policies are considered relevant to the general duty, how new policies will
be assessed and consulted upon, how monitoring of the impact of policies will
take place; how the results of monitoring and assessment will be published; and
how training will be implemented.

– The main employment duties are to monitor by racial group and
publish staff numbers, job applications and training and promotion applications
and (where the body has 150 or more full-time staff) the number of staff from
each group who receive training, who benefit or suffer as a result of
performance assessment procedures, who are involved in grievance procedures,
who are the subject of disciplinary procedures or who cease employment.

The European Race Directive

European Directive on Equal Treatment
between Persons Irrespective of Racial or Ethnic Origin 2000 prohibits
discrimination within the European Union on the grounds of race and ethnic

It must be implemented by the UK and other member states no
later than 19 July 2003. Unlike the Race Relations (Amendment) Act 2000 it will
apply (once implemented) to both the public and private sector. Also, unlike
that Act, it goes back to the basics of what constitutes race discrimination.

Direct discrimination is defined as "where one person is
treated less favourably than another is, has been or would be treated in a
comparable situation on grounds of racial or ethnic origin". This is
similar to the existing definition in UK legislation.

Indirect discrimination is defined as "where an apparently
neutral provision, criterion or practice would put persons of a racial or
ethnic origin at a particular disadvantage compared with other persons, unless
that provision, criterion or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary".
This definition is broader than existing UK legislation, which refers to a
"requirement or condition".

Harassment is defined as "unwanted conduct related to racial
or ethnic origin… with a purpose or effect of violating the dignity of a person
and of creating an intimidating, hostile, degrading, humiliating or offensive

The broadening of the definition of indirect discrimination
emphasises the need for proactive monitoring of equal opportunities. In
anticipation of the implementation of the directive next year, HR teams in the
private sector should consider implementing similar proactive race policies to
those imposed on public bodies.

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