Recruiting a diverse workforce: legal implications

The public sector has come full circle since 1999, when the Metropolitan Police was famously accused of “institutionalised racism” by the Macpherson Report after the murder of Stephen Lawrence.

In September 2006, Gloucestershire Police was taken to an industrial tribunal for illegally rejecting 108 applications from white men. Six months earlier, Avon and Somerset Police admitted it had rejected nearly 200 white applicants. Both police forces were seeking to advance diversity.

This leaves public sector HR professionals with a dilemma. On the one hand, they’re required to employ more staff from ethnic minorities to reflect the communities they serve, yet on the other, they have to comply with equality legislation.

Positive discrimination – favouring minority applicants to meet a quota – is illegal, and every person appointed to a job in the UK must be selected on merit.

Open and equal

Public sector employers must therefore work towards employing more staff from any minority by making the application process more open and equal, rather than appointing minority staff simply to make up the numbers. So how do they achieve this delicate balance? In the aftermath of the Macpherson Report, the government set recruitment targets of an average of 7% of black and minority ethnic (BME) staff for police forces in England and Wales by 2009 – though this was higher in areas with more people from ethnic minorities.

Yet a report published by the Home Office in 2005 showed that only 3.8% of police recruits were from BME backgrounds – some way off the 2009 target. And the Commission for Racial Equality reports that, where ethnic minority workers are employed in public services, they tend to be concentrated in lower-grade positions

Above the law?

Frustrated by their lack of progress, some public sector employers – including Avon and Somerset and Gloucestershire Police – have tried to recruit a higher percentage of BME staff, without taking account of the legal constraints. Such quick-fix solutions have backfired: staying within the law means taking a strategic, holistic approach.

Nana Amoa-Buahin, divisional director of HR at Lambeth Council, stresses that engaging with the various communities served by the authority, and understanding what motivates people, is the key to recruiting a diverse workforce. “It’s not just a matter of advertising in The Voice and the black press – that won’t work if you just use the same ads as usual,” she says.

Applicants need to feel that public sector employers are relevant to them, and will welcome their input. Using a competency framework for recruitment can help with this, Amoa-Buahin believes. “We break down all jobs advertised into competencies, and make it clear that we want to hear about their experience outside work,” she says. “If someone runs a football team, or teaches a Sunday school class, they have skills that are easily transferable into the workplace.”

This doesn’t mean making any compromises about quality, she adds. And there is no doubt that Lambeth’s ‘discrimination-proof’ approach is paying off – of the 40 most senior posts in the authority, 11 are held by BME staff, including the chief executive.

Pauline Davey, HR manager at Bristol City Council, also favours an integrated approach, and Bristol has consequently gained Beacon status (a scheme that identifies excellence and innovation in local government) for its work on race equality. This includes its councillor shadowing scheme with Operation Black Vote, which seeks to encourage more people from ethnic communities to go into politics, as well as streamlining its recruitment process to make it more accessible to ethnic minorities.

“The issue of BME recruitment has been championed by elected members, and the leader of the council has met with BME employees regarding barriers to progression,” says Davey. “It is also compulsory for recruiting managers to attend a ‘fair recruitment and selection’ course before being part of assessment panels.

“All of this has helped establish our reputation as an organisation with a positive attitude towards BME communities, and the employment of BME applicants – and encourages interest in our job vacancies,” she adds.

Using quotas to achieve the desired diversity levels is a one-sided approach, believes Kamaljit Kerridge-Poonia, diversity director at the Department for International Development.

“It’s good to be able to benchmark your progress against targets,” she says. “Otherwise, you wouldn’t know how effective your policies were. But you are still recruiting on merit, and the most important point is to analyse your recruitment procedures, consult with relevant community groups outside your organisation, and to be open to a critique of what you are doing.”

Serving the community

Martin Tiplady, director of HR at the Metropolitan Police, is even more critical. “To be frank, targets have nothing to do with it,” he says. “Our issue is entirely to do with recruiting a workforce that is better equipped to serve London – the most diverse city in Europe.

“We go as far as we can with the legislation that we have, and create as level a playing field as we can for applicants from ethnic minorities,” Tiplady adds.

Now almost 8% of police officers in the Metropolitan Police force are black, compared to 2% in 1999.

Progress aside, Tiplady believes employers could go further with diversity – and faster – if the law against positive discrimination was relaxed. “We need a workforce that looks like London – and does the law help us do that? No, it doesn’t.”

Last month, diversity tsar Trevor Phillips’ bid for positive discrimination to be legalised was rejected by the CBI, so it may be some time before all businesses embrace the flexibility to recruit to reflect the communities they serve. In the meantime, it’s a thin line between legal compliance and doing your bit for diversity.

Positive discrimination – lawful or not?

David Whincup, head of London employment department at Hammonds, gives an overview of the current legislation:

The Race Relations Act 1976 forbids most discrimination on racial grounds, even where carried out with the best of intentions. That can include seeking to address racial imbalances in the workplace by deliberately recruiting new staff in the under-represented section of the workforce. As a number of employers have found to their cost, it is necessary to distinguish between positive action, which is lawful, and positive discrimination, which is not.

Section 38 of the Act only allows positive action in favour of a particular racial group where the proportion of that group among the workforce is small by comparison with that in the surrounding population from which the employer recruits. Where that condition is satisfied, then an employer can legitimately limit certain forms of training to (or specifically encourage applications from) members of that racial group only. However, section 38 does not permit an employer, even where there is an imbalance in the workforce, to actually recruit members of one racial group ahead of better-qualified members of another.

These principles have been supplemented by specific statutory duties imposed on public employers, including local authorities, police forces and NHS trusts. Section 71 of the Act requires them to “have due regard to the need to eliminate unlawful race discrimination [and] to provide equality of opportunity and good relations between persons of different racial groups”.

To achieve this, employers must monitor the racial breakdown of the workforce successful and unsuccessful applications for employment, training or promotion and (in most cases) of those involved in performance management, grievance and disciplinary proceedings.

The results must be published, a message designed to encourage (or shame) employers into addressing any discrepancy in treatment, success rates or any other issues highlighted in the statistics.


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