first_imgThe public sector must have policies promoting racial equality in place bythe end of this month. Rob McCreath outlines the nature of the changes and warnsthat the private sector will almost certainly be expected to follow suit in duecourseAt a conference held earlier this year, David Lammy, MP for Tottenham put itstarkly: “It is still the case that to be black in this country is to bedisadvantaged”. Blindingly obvious you may say, but it is sobering tothink that he was speaking after nearly 30 years of race discriminationlegislation. It begs the question – will amending the legislation provide any answers? Itis a moot point. In its unamended form the Race Relations Act 1976 was almostentirely negative. Essentially it forbade certain behaviour and inflictedpenalties for failure to comply. As Lammy readily conceded, there have beengreat improvements since 1976. However, his initial statement remains palpablyand uncomfortably true. The Government hopes its amendments to the legislation will lead to a morepositive and proactive approach to race relations issues in the public sectorand a fundamental shift in thinking and practice overall. The changes have beenmade under the Race Relations (Amendment) Act 2000, which introduces positiveduties on public sector bodies. Important aspects of these duties come intoforce on 31 May 2002. Seasoned private-sector HR practitioners will already have twigged that thisis far from being the end of the story. Where the public sector is required togo, the private sector will almost certainly be expected to follow. The EUEqual Treatment Directive 2000 will require the definition of indirectdiscrimination to be amended in a way which heads in that direction (seeEuropean Race Directive, right). More changes are likely to follow, bothEuropean and domestic, which will affect all employers in similar ways. For the time being, however, the new duties will only apply to publicauthorities. These include government departments, local authorities, thepolice, NHS bodies, non-departmental public bodies, public-sector schools andfurther and higher education bodies. The general duty is for public-sector bodies to pay due regard, whencarrying out their functions, to the need to eliminate unlawful discriminationand promote equality of opportunity and good relations between persons ofdifferent racial groups. Specifically speaking So far, so vague. However, this general obligation is backed up by specificduties 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 specialspecific duties for schools, and for further education and higher educationinstitutions. These concentrate primarily on staff and students/pupils. Mostother public sector bodies will be bound by the specific duties to publish arace equality scheme and by particular employment duties. General and specific duties are backed up by a statutory code of practicepublished by the Commission for Racial Equality. The code is currentlyavailable on the CRE’s website (www.cre.gov.uk). It will be admissible inevidence in any legal proceedings and relevant if any provision of the codeappears to the court or tribunal. The CRE has also published a range of guidance documents which, like thecode, are intended to be helpful. These may also be taken into account in legalproceedings. Public sector HR practitioners are strongly advised to use thecode and the relevant guidance documents to help them apply the new duties totheir own organisations. Race equality schemes: the duty Relevant public sector bodies are required to have published a scheme by 31May 2002. Similar, but by no means identical, requirements apply to schools andfurther education/higher education institutions, which are required to havepublished a race equality policy by the same date. These schemes must state the functions and policies that the organisationbelieves are relevant to its fulfilment of the general duty of the RRA or EUEqual Treatment Directive (2000). In most cases this will include theemployment, development and retention of staff. And policies relating torecruitment, equal opportunities, training and development, promotion,grievance, discipline and dismissal. In the early stages of implementation, however, the CRE advises that it iswise to try and avoid being bogged down in the detail of such highly specificemployment policies and keep in mind the general duty to promote equality ofopportunity. The CRE’s code also stresses that the weight given to anyparticular policy should be proportionate to its potential impact on raceequality. So HR professionals should really concentrate on getting theimportant things right. At the same time as implementing these policies, public bodies are alsoexpected to make arrangements for assessing and consulting on the likely impactof the proposed policies. This will involve considering how proposals willaffect different racial groups. If a new recruitment system is proposed, forexample, what impact could it have? How are you going to find out? Do managersneed specific training in dealing with particular issues when assessingindividuals from different racial groups? Who are you going to consult and whatare the arrangements for consultation going to be? Arrangements for monitoring any adverse impacts also have to be made. Thesewill vary depending on the circumstances and size of the organisation. They mayinclude analysis of ethnic monitoring data, employee surveys, random samplingand focus groups. But there also needs to be arrangements for taking actionwhen monitoring highlights a problem. Rather than taking care of everything in-house, the results of theseinitiatives are expected to be made public. This includes publishing: theresults of all assessments and consultations; staff training arrangements;employment duties; the results of racial group monitoring; staff numbers, jobapplications and training and promotion applications; and (where the body has150 or more full-time staff) the number of staff from each group who receivetraining, who benefit or suffer as a result of performance assessmentprocedures, who are involved in grievance procedures, who are the subject ofdisciplinary procedures or who cease employment. Timing and enforcement All of these arrangements are officially expected to be in place by 31 May2002. However, the relevant bodies are not expected to have carried out theduties by then – they simply have to show they know how they are going to goabout doing them. Failure to comply with the general duty could lead to an application forjudicial review of the body concerned in the High Court. Individuals, groups ofindividuals or the CRE may bring such an application, which could result in aHigh Court order requiring the body to take specified steps to comply with itsduty. 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 tellthe CRE what it has done, or is doing, to comply. However, although it has widepowers in this area, the CRE is keen to stress that it wishes to work inpartnership 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 politicalcorrectness, lip service and aspirational written policies that bear norelation to what is happening on the ground. There is a danger that if publicsector bodies lose sight of this aim, it could all be lost in a snowstorm ofethnic monitoring data or a freezing fog of box-ticking bureaucracy. If thishappens, the result will simply be vast amounts of futile and meaningless work.But the specific requirements to monitor and assess have been brought in sothat action can be taken to turn the current situation round. To put DavidLammy’s comments in an employment context, people from ethnic and racialminorities are significantly under-represented in employment and are scarce inthe higher reaches of most organisations. Those are the key employment issues.The specific requirements are merely ways to force organisations toself-examine, identify problems and ask themselves: “what are we going to doabout it?” In order to comply with the new duties, public-sector bodies will beexpected to set themselves realistic but stretching targets on key indicators,such as the proportion of members of minority groups in senior and middle managementpositions or on fast track for promotion. Those that are subject to an inspection regime will find themselves judgedon their own targets, or the lack of them. Where necessary, they will beexpected to take positive steps to achieve their targets. These steps will haveto fall short of positive discrimination. It is suggested that they should beaimed at creating support in the form of networks and pathways and access todevelopment opportunities, advice and encouragement both within and outside theorganisation. A fair and fine balance needs to be struck. It may be an oneroustask 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 RRAPublic authorities will be subject to general and specific duties inrelation to race equality. The duties are positive for the most part and backedup by a detailed code of practice.– The general duty will apply across the public sector. Theduty is for bodies to have due regard, in carrying out their functions, to theneed to eliminate unlawful discrimination and to promote equality ofopportunity and good relations between persons of different racial groups.– Schools and further and higher education institutions havetheir own specific duties, which relate mainly to students/pupils andemployees. They must have published a race equality policy by 31 May 2002.Although they are not strictly subject to the employment duties (see nextpoint), in practice they will have to carry out much the same monitoring andassessment on employment issues as other public sector bodies.– Most of the rest of the public sector will be required topublish a race equality scheme and to comply with the employment duties.– Race equality schemes are required to state which functionsand policies are considered relevant to the general duty, how new policies willbe assessed and consulted upon, how monitoring of the impact of policies willtake place; how the results of monitoring and assessment will be published; andhow training will be implemented.– The main employment duties are to monitor by racial group andpublish staff numbers, job applications and training and promotion applicationsand (where the body has 150 or more full-time staff) the number of staff fromeach group who receive training, who benefit or suffer as a result ofperformance assessment procedures, who are involved in grievance procedures,who are the subject of disciplinary procedures or who cease employment.The European Race DirectiveEuropean Directive on Equal Treatmentbetween Persons Irrespective of Racial or Ethnic Origin 2000 prohibitsdiscrimination within the European Union on the grounds of race and ethnicorigin.It must be implemented by the UK and other member states nolater than 19 July 2003. Unlike the Race Relations (Amendment) Act 2000 it willapply (once implemented) to both the public and private sector. Also, unlikethat Act, it goes back to the basics of what constitutes race discrimination.Direct discrimination is defined as “where one person istreated less favourably than another is, has been or would be treated in acomparable situation on grounds of racial or ethnic origin”. This issimilar to the existing definition in UK legislation.Indirect discrimination is defined as “where an apparentlyneutral provision, criterion or practice would put persons of a racial orethnic origin at a particular disadvantage compared with other persons, unlessthat provision, criterion or practice is objectively justified by a legitimateaim 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 racialor ethnic origin… with a purpose or effect of violating the dignity of a personand of creating an intimidating, hostile, degrading, humiliating or offensiveenvironment”. The broadening of the definition of indirect discriminationemphasises the need for proactive monitoring of equal opportunities. Inanticipation of the implementation of the directive next year, HR teams in theprivate sector should consider implementing similar proactive race policies tothose imposed on public bodies. Previous Article Next Article Related posts:No related photos. Comments are closed. Redressing the racial imbalanceOn 21 May 2002 in Personnel Todaylast_img