Out of site

Employers in the construction industry need to wake up to
anti-discrimination and equal opportunity laws before there is a further slump
in skills shortages and manpower. By Michael Millar

The construction industry may, from the outside, look like the last bastion
of male dominance, where a man can be measured by the decibel level of his wolf
whistle.

But times are changing.

Michael Ball, employment partner at Halliwell Landau, says:
"Traditionally, most of the work in the construction industry was done by
small firms in which there were no equal opportunity policies and a recruitment
drive would mean buying an extra round in the pub.

"But the building site is no longer dominated by white males and a
culturally diverse environment means that steps have to be taken to guard
against discrimination," Ball says.

The UK construction industry is at a crossroads, where long-standing
traditions of sexual and racial barriers to employment and on-the-job
acceptance have worn out their usefulness. As an increasing raft of
anti-discrimination laws continue their jack-hammer assaults on discrimination
in the workplace, the construction industry finds itself in need of thousands
of more workers. But it is poorly positioned to bring on board those needed to
round out the workforce: women; members of racial and ethnic minorities; and
the disabled, for starters.

"The construction industry is going to have to wake up," says
David Gibson, associate at Dickinson Dees. "It would take a tough
character to stand up but unions may cherry pick a case and then there will be
a heavy-duty claim."

The industry saw its biggest growth in demand for its services for more than
10 years in the first quarter of 2004, according to the Royal Institute of
Chartered Surveyors’ Construction Market Survey.  Of the survey respondents, 36 per cent reported that their
workloads rose during the first quarter, compared with 10 per cent reporting a
decline – the 26 percent balance was up significantly on the 14 per cent
balance recorded in the previous quarter.

However, 43 per cent of the respondents reported recruiting difficulties
during that time frame, and, according to the Learning and Skills Council, 40
per cent of job vacancies advertised remain unfilled.

With the Federation of Small Businesses estimating the average age of a
construction industry worker to be 56, even with age discrimination soon to be
a thing of the past, the industry will be forced to take account of every
potential employee.

In London alone the construction industry will need an extra 40,500 people
by 2006, and the Learning and Skills Council says more must be done to tap the
female workforce.

However, research undertaken by the council under the title, Building Your
Future, found women in construction felt isolated and unsupported on site,
whose male colleagues questioned their abilities and had a tendency to undermine
them.

"More and more women are involved in construction, from builders to
chartered surveyors and building surveyors, and they come into regular contact
with operatives," says Noreen Sumra, legal director of Human and Legal
Resources.

"There are a lot of stereotypical assumptions of what women can do and
employers need to be careful of how women are treated."

Equal Opportunities Commission chief executive Caroline Slocock says that
discriminating against women in the industry puts the whole profession at risk
from further shortages in personnel.

"Construction has the second highest skills shortages in the
country," she says. "It is in its own interests to tackle
discrimination, at the moment, women don’t understand why they would want a
career in the construction industry."

Gillian Leach, partner at law firm Blake Lapthorn Linnell, says:Ê"In
the construction industry, women often dominate the clerical jobs and the
manual work is largely a male domain. If the rates of pay are generally lower
for the female clerical workers than they are for the male manual workers, this
may give rise to an inference of inequality.

"Although they are not doing the same job, the women clerical workers
could claim that the work they do is of equal value to that of their male
colleagues," she says.

Inequalities

The Sex Discrimination Act (SDA) interrelates with the Equal Pay Act (EPA)
to deal with inequalities in pay and benefits that are rooted in differences in
gender with the EPA dealing with the same work and also work of equal value.
Leach advises a work evaluation exercise would have to be undertaken before the
matter could be decided.

Race is another area in which the construction industry has been slow to
embrace societal change. Even the trade unions are aware, however, that
attitudes must change toward potential workers who have not typically been made
to feel welcome.

UCATT general secretary George Brumwell says: "There are particular
problems from a racist point of view. The industry is aware of it and recognition
is slowly percolating down.

"It is an evolutionary process, but a lot more has to be done. The
industry doesn’t think much of its own labour force," Brumwell adds.

Halliwell Landau’s Ball highlights the recent case of Essa v Laing Ltd (2004
EWCA CIV 02), in which the Court of Appeal last January upheld an Employment
Appeal Tribunal decision that Laing Ltd, the contractor on the construction
site at which Mr Essa was working, was liable for discrimination against him on
the grounds of race. The company had failed to take reasonable steps to prevent
a single abusive comment by one of its employees.

"The main blow came to the company when it was decided that the amount
of compensation was not limited to what was ‘reasonably foreseeable’,"
Ball says.

"Essa had suffered a dramatic personality change as a result of the
incident and it was found that the firm was responsible for the full extent of
the psychiatric injury and ongoing loss of earnings regardless of how unlikely
it was from a ‘one-off’ incident followed by an apology."

Practicalities of the business could also give rise to claims of racial
discrimination. In the construction industry there is a practice to recruit in
teams, according to Leach.

Often, people who are thought to work well together because they have a
common background or culture may be asked to recruit family and friends as
co-workers. For example, there is a history of Irish construction workers in
the UK road construction.

The Commission for Racial Equality highlights recruitment by word of mouth,
family and personal contact as important factors in maintaining a racially
segregated workforce and the status quo.

"The resultant pool of recruitment is small and exclusive and tends to
exclude those from backgrounds that are not part of the dominant group,"
says Leach.

"There is another mistaken stereotype that race is all about
colour," she says. "There have been cases where Irish, Welsh,
Scottish and even English origin have been grounds to take action for race discrimination."

The Disability Discrimination Act (DDA) promises to test the industry’s
mettle further. Leach points out, for example, that the construction industry
is one where strength, mobility and the ability to undertake manual labour are
dominant requirements.

"The stereotype of a disabled person is someone who is in a wheelchair
and who has been disabled since birth," she says. "This is a false
stereotype; most of the people who have protection from the DDA have invisible
disabilities, such as hearing loss, dyslexia, heart disease, MS, back and
muscular problems.

"The DDA also covers people who have no apparent disability because
their condition is controlled by drugs, for example epilepsy and
diabetes," Leach adds.

The construction industry is going to be especially vulnerable because of
the physical demands of many of its jobs. A labourer who develops a serious
back or other muscular skeletal injury may fall within the definition of a
disabled person under the DDA.

Human and Legal Resources’ Sumra says that provided employers have
investigated alternative employment and taken advice on how they can cater for
a disabled employee, an employment tribunal would probably side with them.

"The choices you make will also be subject to how feasible and
cost-effective changes are to your business," she says. "Unless your
decisions are clearly perverse a tribunal should side with you."

At present, if a business has fewer than 15 employees then it is exempt from
the DDA. But not for long, because the exemption will be gone in October.

Michael Burd of Lewis Silkin Solicitors estimates 400,000 workers work for a
small employer in the construction industry and the Federation of Small
Businesses says 80 per cent of employers in the sector are classified as small.

This represents about 120,000 businesses in the industry that will, from 1
October 2004, need to comply with the employment-related provisions of the DDA
for the first time, according to Burd.

"In 2002/03 about 3 per cent of employment tribunal claims related to
disability discrimination (just over 5,300)," he says. "The
government estimates that about 680 extra cases will be generated by the
removal of the small employer exemption.

"The majority of cases are, in any event, either settled or withdrawn
before they get to a tribunal," Burd says.

However, this may still be at the expense of a company’s reputation. Anne
Copeland, HR director at construction project management company Interiors plc,
acknowledges that HR must take note of the cultural impact of discrimination on
the business.

"The best people will not tolerate an environment where discriminatory
behaviour is apparently acceptable," she says. "Induction and
training that is rooted in raising awareness, clarifying consequences and
setting standards for behaviour are proven, successful ways to bring about
positive change."

Discrimination and harassment: the law in brief

Sex: the Sex Discrimination
Act (1975) gives protection against discrimination and victimisation on the
grounds of sex, marriage or because someone intends to undergo, is undergoing
or has undergone gender reassignment.

Race: the Race Relations Act 1976 gives protection
against discrimination and victimisation on the grounds of colour or
nationality. The regulations that amended the Act (Race Regulations 2003) also
give a stand-alone right to protection from harassment on the grounds of race
and ethnic or national origin.

Disability: the Disability Discrimination Act 1995 gives
protection against discrimination and victimisation. Employers are required to
make reasonable adjustments to premises, working practices or other aspects of
the job that might enable a disabled person to enter or remain in employment.

Sexual orientation: the Employment Equality (Sexual
Orientation) Regulations 2003 give protection against discrimination and
harassment on the grounds of sexual orientation (orientation is defined as same
sex – lesbian/gay – opposite sex – heterosexual – and both sexes – bisexual).

Religion or belief: the Employment Equality (Religion or
Belief) Regulations 2003 give protection against discrimination and harassment
on the grounds of religion or belief.

Source: Acas/Department of Trade and Industry

Contacts

DTI Employment Relations Directorate:
www.dti.gov.uk/er/index.htm

Acas National Helpline: 08457 474 47 www.acas.org.uk

Chartered Institute of Personnel and development: www.cipd.co.uk

Federation of Small Businesses: www.fsb.org.uk

Commission for Racial Equality: www.cre.gov.uk

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