As
the 31 May deadline looms, the Commission for Racial Equality’s David Zilkha
provides some useful guidance on how far public sector employers must go to
fulfil their specific duties
As well as avoiding discrimination, public sector organisations must now work
to create a fairer society under their new duty to promote race equality.
Though there are three parts to this general duty (see page 15), it is
important to consider each part separately in order for an organisation to meet
its obligations. For example, an employer might identify under-representation
of certain ethnic groups in particular posts or at a specified grade. One
response could be to initiate a positive action training scheme for staff from
the under-represented ethnic groups. This would help to meet the second part of
the duty. However it would do nothing to meet the first part if, say, the
selection process unfairly disadvantaged (and hence discriminated against)
those ethnic groups. It would also be unlikely to meet the third part of the duty;
in fact, a poorly communicated positive action scheme can have the reverse
effect and actually cause tension between staff.
This does not mean that positive action training initiatives are not useful.
It simply means that they need to be seen as one tool among many which can be
valuable as part of an overall coherent strategy. In this example the wider
strategy could include:
– an assessment about whether under-represented groups know about
opportunities, including how posts are advertised;
– a review of the selection procedure to identify and tackle any cultural
bias;
– a positive action training programme including a communication and
presentation strategy;
– a clear message of demonstrable commitment to equality throughout the organisation
including at the most senior levels; and
– a wider programme of training to address staff attitudes, skills and
understanding.
Some of the steps that an employer must take have also been set out in the
legislation. These specific duties (see page 15) state what the employer must
do to better comply with the general duty. This is important. Going through the
steps without thinking about how they relate to and can achieve the three parts
of the duty risks either a woolly and unattainable commitment, or the kind of
poorly understood, process-focused policies that so often fail to achieve their
aims.
There are two specific duties, or steps, required of most public sector
organisations in relation to their employees. There is a requirement to undertake
ethnic monitoring in employment, and to publish a Race Equality Scheme –
essentially the overall coherent strategy referred to above.
Ethnic monitoring in employment
Any data is only as valuable as the use that’s made of it. The information
that is collected needs to be analysed and then, where areas of concern are
identified, action needs to be taken to address all three parts of the duty.
The reasons behind collecting and using the data need to be clearly
communicated to staff, who should have the opportunity to ask questions and
raise any concerns. This will help to ensure that people are willing to give
the information and that it does not lead to rumours about its purpose or
result in tensions.
Over- or under-representation of specific ethnic groups will usually be what
is being looked for, and employers should take care to ensure that comparisons
are appropriately drawn. For example, applicants for employment and staff in
post should be compared against the area from which the organisation would
usually be expected to recruit – for most grades this would be the local area,
i.e. within a reasonable travelling distance. For some grades, or some posts,
especially very senior posts, the expected recruitment area may be regional or
even national. For jobs such as solicitor or social worker, which require a
professional qualification, the comparison should also consider the profile of
people who hold the qualification.
The ethnic categories should be compatible with the 2001 census categories.
Some employers will, because of local population profiles, decide that more
detailed information is necessary, but should ensure that the more detailed
categories can still fit within the census categories in order to make
comparisons possible.
Keeping ethnic records is lawful under the Data Protection Act 1998 where it
is done to check how well the organisation is doing in terms of equality
between ethnic groups, and in order to assist the organisation in promoting
equality of opportunity.
The importance of ethnic monitoring is reflected in the prominence it has
within the legislation and the level of detail given about what must be
monitored. However, it is important to recognise that, like positive action
initiatives, ethnic monitoring is one tool among many. It provides a very
useful quantifiable check and allows for measurement of year-on-year
improvement and comparisons with other organisations. But it is not infallible.
Over- or under-representation of particular groups does not always indicate a
problem to be resolved; equally, there are problems that may not be shown up by
any obvious statistical differences.
In the first case, the reasons would need to be investigated but may
establish an explanation which is not a cause for concern. In the second, to use
an example, proportionately equal attendance on internal training days does not
tell you if all staff from a particular group find the sessions patronising or
culturally offensive, so there would need to be other routes to identify such
concerns.
Further guidance is available in the CRE guide to ethnic monitoring that
accompanies the code of practice.
Race equality schemes
Specified organisations are required to publish a scheme by 31 May. It
provides a strategy and action plan for the organisation on fulfilling the
duties, and must include the arrangements the organisation has in place in a
number of areas.
The organisation must undertake an assessment of all its functions and
policies to identify which of them are relevant to the duty to promote race
equality, and these must be detailed in the scheme. It would also be useful for
organisations to assess how relevant the duty is in each case, as this will
make it possible to prioritise and will inform the action plan.
All employment or HR functions would seem to be relevant to the duty as they
concern the appointment, treatment, and conditions of staff, and hence there is
the potential for disadvantage. As a very rough rule of thumb, there are two
factors which would indicate a higher degree of relevance – a high degree of
discretion in decisions, and whether decisions entail a clear benefit or
detriment to the person or people concerned.
Functions with the highest relevance would usually be where both of these
apply, for example job interviews or pay or promotion-linked appraisal systems.
Others, such as storage of confidential staff details, should have little
relevance – provided, of course, that the policy is followed consistently for
and by all staff. If access to information is abused there is clearly the
potential for this to be used in a way that targets one or more members of
staff.
As organisations have been preparing their schemes, one of the most frequent
enquiries has been the level of detail organisations should go into when
identifying and listing their functions and policies. Some have said the
numbers go well into the thousands.
But there is no simple answer to this question. In fact, the purpose of the
specific duties provides the answer. They are there to ensure better compliance
with the three parts of the general duty. Therefore the correct level of detail
needs to be decided pragmatically; namely that which will mean that the
organisation can comply to the greatest extent with the general duty. It is up
to each organisation to decide what will be the most appropriate solution for
its circumstances.
In practice, this is likely to mean broad groupings – one of these could be
HR – with subsections within each. In this case they might include recruitment
and selection, advertising and corporate image and training. This level of
detail could be sufficient in identifying priorities for action, whereas an
action plan to address disparities in access to training would obviously need
to go into greater detail.
It is important not to forget, however, that functions and policies should
be seen as inclusive terms. Therefore decision-making processes and widespread
custom and practice need to be considered, even if formal written policies do
not exist.
Once the assessment of relevance has been made, an action plan needs to be
drawn up to detail what the organisation intends to do. It will obviously be
impossible to tackle every area of concern immediately. Priorities should
reflect both levels of impact on the public and/or staff, and levels of concern
among communities.
It would also be useful to bear in mind that some early improvements that
are immediately noticeable to staff or members of the public will help to build
confidence in the process.
The scheme also needs to include an organisation’s arrangements in various
areas, and these have two main aims. The first is to ensure well-informed
policies. In other words, you need to find out what effect a policy or activity
is actually having on people, as opposed to what you think it should have. For
example, the number of staff who attend training on managing racial abuse from
customers or service users is useful, but what you really need to know is:
– whether staff feel more confident dealing with situations;
– whether staff experiencing abuse feel more supported; and
– whether the number of incidents reduces.
A similar approach needs to be adopted in finding out the impact of proposed
changes – before they are made.
The second main aim of the arrangements is to ensure the promotion of race equality
is mainstreamed. This means making it part of the standard decision- making
process and the responsibility of every member of staff (especially the
decision-makers), not just the equality officer. Steps obviously need to be
taken to ensure staff understand what they need to do, but there should also be
some indication of how seriously it is viewed by the organisation. One way to
achieve this is to include it as an element of the appraisal system for
managers, in the same way that effective budget management is.
Raising the stakes
The duties described above apply only to specified public sector
organisations. The intention is for the public sector to lead a major change in
our society, and set an example for other organisations to follow. This is likely
to impact on voluntary and private sector organisations.
First, it is likely to raise the stakes on what is good practice and what
makes an organisation an ’employer of choice’. Employers that do not keep up
are likely to find it increasingly difficult to attract the best talent.
The second issue is the increasing blurring of boundaries between what does
and does not constitute the public sector. While private and voluntary sector
organisations are not subject to the duty, they will often be involved either
in delivering public services or working with organisations that are. The duty
applies across the full range of a public organisation’s functions, and this
includes procurement and partnership arrangements.
The promotion of race equality will therefore increasingly be reflected in
contracts and partnership agreements, and private and voluntary sector
organisations who have addressed the issues now are likely to find themselves
better placed to meet requirements in the future.
David Zilkha is a policy officer at the Commission for Racial Equality
Find out more on…
CRE draft code and guidance documents at www.cre.gov.uk or from
the Stationery Office on 0870 240 3697. Or see the ‘Frequently Asked Questions’
section on the CRE website.
Who must comply?
The duty to promote race equality
applies to all public bodies listed in a schedule to the Act. Most also have
additional specific duties, such as the requirement to produce a Race Equality
Scheme and to undertake specified ethnic monitoring in employment. These
additional duties apply to all the major public sector employers including:
– local government
– central government departments
– police
– health
– education (specific duties differ slightly to other sectors)
– agencies such as inspectorates, commissions, professions’
councils, funding bodies
Checklist
What should employers look for?
– over- or under-representation of ethnic groups among staff
from monitoring information, for example appraisal scores or retention levels
– specific concerns that staff have, with particular attention
to the views of ethnic minority staff
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– specific concerns among communities (i.e. potential job
applicants/future staff) about the organisation as an employer
– specific concerns among service users such as customer
satisfaction compared between ethnic groups.Â
This is relevant to HR functions because it may indicate particular
staff training needs
