Feedback from Wave-length’s 2013 Equality Event – The Equality Act is it working for you?

Feedback from Wave-length’s 2013 Equality Event – The Equality Act is it working for you?

For those that did not attend the Wave-length Social Marketing CIC event on the 22nd October 2013 in Shrewsbury this document provides an overall summary of the areas discussed on the day.

The key areas planned for discussion were:

  • The changes to be applied in October 2013 to the Equality Act
  • Current challenges within the existing act
  • The recommendations for change to the Equality Duty as presented by the Governments commissioned Steering Group

The event was attended by delegates from the public and private sector (including social enterprises).  The attendees represented both large and small organisations; delegates were either running organisations or had a key role or responsibility for the Equality policy within their organisation.

Whilst the event had a defined pre structure other topics of conversation were discussed and they included:

  • Class discrimination
  • That disability goes beyond wheelchair users
  • Impact of zero hour contracts
  • Best practice in interview processes and competency measurements
  • The differences between those that serve the public and those with public duties

 

The widening of the discussion highlights the need to come together to discuss equality as it often provokes wider debate, greater learning and the opportunity to share best practice something at Wave-length we value facilitating

 

 

The main key discussions were:

What’s changing in October 2013?

Section 40

We discussed the repeal of Section 40 and whether in doing so it would have a detrimental impact on the protection of staff from third part harassment.  It was felt within the discussion that there was sufficient other policies within an organisation that of Equality and Diversity; Bullying and Harassment, Duty of Care and Grievance and Disciplinary which should sufficiently replace section 40.

Delegates confirmed that they had policies in place and some public sector staff present referred to the Equality Duty as still requiring an action to promote equality of opportunity etc. which could also cover this.

The wording of section 40 (which has now been repealed)

Section 40 of the Equality Act 2010 sets down certain conditions in which an employer can be liable for the harassment of their employees by a third party – namely when:

 

  • the harassment occurs in the course of the employee’s employment;
  • the employer has failed to take reasonably practicable steps to prevent the third party harassment; and
  • the employer knew that the harassment by a third party had taken place on at least two other occasions (the so-called ‘3 strikes’ rule).

 

Discussion following this change focused on how other policies might be applied within an organisation in order to continue to protect staff from harassment.

 

Caste Discrimination

We watched a film on Caste Discrimination which helped to set the scene on the negative impact of caste discrimination and to show in very hard hit thought provoking terms the way that such discrimination is already prevalent in the UK and how it might manifest itself within organisations.  We watched BBC short film ‘People affected by Caste Discrimination Speak Out’ http://www.youtube.com/watch?v=LHr8GcQq8ec

The film highlighted areas such as:

  • An Asian employee joining an organisation may be able to identify that his manager is of a lower caste than them.  This might then impact on the respect given to them as a manager
  • It showed the potential of Asian employees explaining to other staff what another Asians background said about them with the potential for this to result in staff teasing, disrespectful behaviour and harassment of colleagues
  • It demonstrated that caste discrimination is prevalent not just in the older Asian community but being evident in the school playground.

After the film we discussed the implications of the caste discrimination, how people might easily identify each other’s caste and what might be improved within the workplace practices.

The current law has not applied Caste Discrimination yet but has changed the wording of the Act following strong lobbying. The wording of section 9(5) of the 2010 Act will be changed from ‘the Minister may…’ to ‘the Minister must…’ meaning protection against caste discrimination will be added to the Equality Act.

It is also worth noting that Caste Discrimination at the point of introduction is to likely fit under ‘Race Discrimination’ and not to be an additional protected characteristic.

Further changes:

For additional information and as stated in the session there were other changes made to the Equality Act 2010 in October 2013 and they included (wording from the Equality of Human Rights Commissions website and not discussed on the day)

Obtaining information for proceedings

The question and answer procedure set up by Section 138 of the Equality Act 2010, used for gathering information on a discrimination case, will be repealed.

Again, many respondents, including the Commission, opposed this repeal.  Evidence from the Commission’s legal casework suggested the use of the procedure leads to a reduction in claims proceeding to the tribunal or court, and removing the procedure may place more onerous demands on businesses dealing with discrimination claims.

Equal pay audits

Section 78 of the Equality Act 2010 gives Ministers a power to introduce mandatory gender pay audits for companies with over 250 employees through secondary legislation, but until now Ministers had not implemented this provision.

The 2013 Act section 98 amends the Equality Act by introducing a new section 139A, which will extend the powers of employment tribunals to require employers to conduct an equal pay audit, if the tribunal finds they have discriminated on pay.

This provision is welcome and the Commission made recommendations for how it could be implemented to provide an effective mechanism for tackling pay discrimination.

Dismissal for political opinions: no unfair dismissal qualification period

The 2 year qualification period necessary to claim unfair dismissal will not apply where the reason, or if more than one, the principal reason  for the dismissal is or relates to the employee’s political opinions or affiliation.   These provisions were brought in by section 13 of the 2013 Act specifically to address the European Court of Human Rights, decision in Redfearn v the UK, and will come into force on 25 June.

The court held in that case that the UK had failed to meet its positive obligations to protect the right to freedom of assembly and association under Article 11 of the European Convention on Human Rights because a person, with less than one year service (as it was at the time), who was dismissed by his employer because of his political beliefs (in that case membership of the BNP) was unable to bring a claim for unfair dismissal.   See the article by Laura Hutchison in the EHRC Scotland e-Bulletin March 2013

Current

We looked at one area of the current law ‘Outlawing Medical Questionnaires’ in the short listing process for group discussion.

This was not a presentation but a chance for debate and sharing of best practice on an existing area of the Equality Act that certainly Wave-length are asked much about in training, presentations and in email enquiries.

It was apparent within the discussion that some small organisations were not familiar with this aspect of the law that already exists.  So a very engaging debate covered:

  • The implications of this part of the act, whether asking past employers for sickness information might be within the law or not
  • How past medical or sickness history might not impact on future capability
  • The need for companies to look at Capability Policies/procedures – something Wave-length is soon to provide guidance on
  • The importance of robust application, selection and probation practices and training of staff
  • How many employers still do not measure key competencies required for a job within the application process – something that Wave-length provides training on ‘Finding the right person for the job’
  • On how difficult it is for those seeking work to face or challenge what is often illegal questioning in a job application when they so desperately want the work/job

Future

The third part of the session looked at and discussed the recommendations of the governments steering group tasked to review the Public Sector Equality Duty PSED.

The conclusions of the Steering Group were:

‘The Steering Group believes it is too early to make a final judgement about the impact of the PSED, as it was only introduced in April 2011 and evidence, particularly in relation to associated costs and benefits, is inconclusive. While the Steering Group has found broad support for the principles behind the Duty, the review has found the main challenges lie in its implementation, which varies considerably across the public sector

The nature of a ‘due regard’ Duty is that it is open to interpretation by public bodies. What amounts to ‘due regard’ depends on particular circumstances and only a court can confirm that a public body has had due regard in a particular case. This uncertainty has on many occasions led to public bodies adopting an overly risk averse approach to managing legal risk in order to rule out every conceivable possibility. This has been a recurring theme throughout’

 

 

 

After presenting this conclusion we discussed as a group the meaning of ‘due regard’ against ‘regard’ and ‘due weight’  along with the lack of guidance and information provided to-date to best support public sector organisations and those that delivery services on behalf of them

 

We concluded with a brief discussion on whether the key recommendations of the change recommended by the Steering Group went far enough or had gone too far.

 

The key recommendations from the Governments Steering Group

For the EHRC:

Guidance must be clearer on the minimum requirements placed on public bodies

Sector regulators have an important role in supporting implementation

Public bodies should not collect diversity data unless it is necessary for them to do so.

 

For public bodies:

Public bodies must ensure they adopt a proportionate approach to compliance and not seek to “gold plate”.

Public bodies must reduce the burdens placed on small employers.

For contractors:

  • Public bodies should be challenged where their procurement processes creates barriers for small businesses and charities.
  • For Government:
  • Public bodies must be proportionate in publishing information.
  • Enforcement of the PSED needs to be proportionate and appropriate.
  • It is too early to make a final judgement about the impact of the PSED.

In addition

Public bodies should not collect diversity data unless it is necessary for them to do so.

Public bodies must ensure they adopt a proportionate approach to compliance and not seek to “gold plate”.

Public bodies must reduce the burdens placed on small employers. Public bodies should be challenged where their procurement processes creates barriers for small businesses and charities.

Enforcement of the PSED needs to be proportionate and appropriate.

 

In addition; and with permission we recorded parts of the meeting and small segments have been edited down and can be located via the Wave-length Well (a resource pool for organisations and employers wanting to access disability/equality training materials, information, best practice and guidance notes).   Allowing you to hear Wave-length debate from your own desk.

To subscribe to the pool there is a cost of £50.00 per annum (less than £1 a week).  Which we hope demonstrates excellent value for money as it can reduce cost of training, provide immediate links to disability information which might include supporting a member of staff with a particular condition and it allows for a sensitive and confidential environment for asking questions of other organisations and Wave-length– which can often save on re-inventing the wheel.   Interestingly the annual subscription then goes to Wave-length to support its profit for purpose values so allowing us to help you and for you to further help the community.  For more information about the Wave-length Well go to http://www.wave-length.org.uk/the-wave-length-well/

Wave-length has many events to support employers and organisations some are free to attend seminars and debates others are competitively priced engaging training sessions and workshops.  For details of current events coming up go to http://www.wave-length.org.uk/category/events/

To be sign up to our news and information email so you can know when other activities come about go to http://www.wave-length.org.uk/why-join/

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