Relocation : advice and guidance

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Relocation : advice and guidance

Introduction: impact assessments and the law
Background
Action
Aim of this guidance
PCS policy
Relocation and the law
Race equality impact assessments: what to look for
Government policy on promoting race equality
Civil service policy on equality and diversity
Employer’s duty to mitigate against adverse impact
Grounds for legal challenge
The impact assessment process
Requirement to conduct race equality impact assessments – parliamentary question

Introduction: impact assessments and the law

The attached guidance is intended to assist negotiators to identify and address relocation proposals that may have discriminatory outcomes. The primary focus is on race but the same process can be followed to identify and address the concerns of other equality groups. The approach outlined in this guidance can also be applied on issues other than relocation, for example pay.

Background

The recommendations of The Lyons Report have the potential to see tens of thousands of public sector posts in London and the South East being relocated to other parts of the country.

PCS is concerned that the proposals for the relocation of posts may have the effect of undermining the progress that has been made in recent years on increasing the diversity of the civil service and may have an adverse impact on black and minority ethnic (BME) workers in particular as well as on BME communities in terms of employment prospects and service delivery.

PCS believes that it is not acceptable that policies aimed at cost saving, as in the case of relocation, should be allowed to undermine wider social policies aimed at promoting community cohesion and eliminating discrimination.

Our aim is to ensure that equality and diversity issues are properly assessed and considered in departmental and agency plans and that members are able to secure good personal outcomes. We will seek to achieve this through consultation and negotiation with employers and through our campaigning activities and where necessary we will use the law to challenge discriminatory outcomes.

Action

A programme of regionally based training events based on this guidance will be available shortly and details will be circulated to branches in due course.

Negotiators who consider that their employer is not complying with the legal duty to promote race equality as outlined in this guide should contact the equality health and safety department for further advice on enforcement proceedings.

Aim of this guidance

This guide is aimed at negotiators dealing with public sector relocation proposals. It provides information on the process for conducting a race equality impact assessment and the issues that should be addressed in order to avoid any adverse impact on staff and service users.

The guide also sets out the legal remedies available where the assessment has not been carried out properly or where adverse impact has not been addressed.

Cases involving failure to undertake race equality impact assessments properly or to act on findings of adverse impact should be referred to the equality health and safety department at PCS headquarters in the first instance.

Whilst this guide focuses on race issue, negotiators should be aware that relocation proposals might also have adverse impacts on women, particularly those with caring responsibilities and on people with disabilities.

There is no legal duty to conduct impact assessments on other groups at present but a duty to promote disability will come into force in December 2006 and a duty to promote gender equality comes into force in April 2007.

It is expected that these new duties will operate in the same way as the race duty and the negotiating aim should be to conduct equality impact assessments for race, gender and disability simultaneously.

PCS policy

The recommendations of The Lyons Report have the potential to see tens of thousands of public sector posts in London and the south east being relocated to other parts of the country.

PCS is concerned that the proposals for the relocation of posts may have the effect of undermining the progress that has been made in recent years on increasing the diversity of the civil service and may have an adverse impact on black and minority ethnic workers in particular as well as on BME communities in terms of employment prospects and service delivery.

We believe that it is not acceptable that policies aimed at cost saving, as in the case of relocation, should be allowed to undermine wider social policies aimed at promoting community cohesion and eliminating discrimination.

Our aim is to ensure that equality and diversity issues are properly assessed and considered in departmental and agency plans and that members are able to secure good personal outcomes.

We will seek to achieve this through consultation and negotiation with employers and through our campaigning activities and where necessary we will use the law to challenge discriminatory outcomes.

Relocation and the law

The Race Relations Act (as amended) places a duty on most public authorities to eliminate race discrimination and to promote equality of opportunity and good relations between all racial groups.

To ensure that this duty is being met, the Act requires public authorities to conduct race equality impact assessments on all their policies and where adverse impact is identified, to take steps to eliminate or reduce any disadvantage.

The Commission for Racial Equality (CRE) now part of the Equality and Human Rights Commission, (EHRC), stated in 2006 that relocation proposals should be subject to a race equality impact assessment and produced guidance for Government Departments on factoring Racial Equality into Relocation

The enforcement powers of the race duty lie with the EHRC who may conduct a formal investigation or issue a compliance order.

It is also possible for the EHRC , or any party with an interest, to take judicial review proceedings against a public authority in relation to its actions or its failure to take action in relation to the race duty.

Race equality impact assessments: what to look for

Employer’s obligations

Public Sector employers are legally obliged to conduct a race equality impact assessment to identify whether any policy will have an adverse impact on particular racial groups in terms of service provision as well as employment issues

Once an impact assessment has been conducted, employers are then legally obliged to publish the result and the consultation report that informed it.

The published report must explain how the impact assessment was conducted, the main findings of the assessment, the reasons why the employer reached their conclusions and how the findings will be used to shape their proposals.

Non-disclosure

Race equality impact assessments are public documents and must be published by the relevant public authority.

Where Departments fail to release and publish the results of a race impact assessment, this may amount to a breach of the employer’s duty and it should be reported to the EHRC. Information on how to do this is available on the Equality and Human Rights website

The letter to the EHRC should record the failure to publish the race impact assessments findings and request the EHRC to use its enforcement powers to compel the Department to release the information.

Monitoring data

An analysis of a race equality impact assessment should include:

The ethnicity profile of existing staff,
The ethnicity profile of the pool of potential recruits, and
The findings of the consultation with staff affected by job losses and other stakeholders including service users.

Grade, ethnicity and gender details per department or business unit should be available from The Diversity or Human Resources Department, as this information should be collected as part of the compliance procedures under the amended Race Relations Act

In the event that this has not been provided, a formal request should be made to the Diversity or Human Resources Department requesting release of the information under the Freedom of Information Act. The Office of the Information Commissioners website can provide details of the working of the Act.

Effective consultation

Staff affected by the relocation proposals should be contacted to identify whether:

They were consulted over the relocation proposals.
Redeployment was offered.
They were offered training to acquire additional skills in order to improve their opportunities for applying for other jobs.
There were vacancies suitable for redeployment when staff are declared surplus.

The information collected should indicate how far the employer has attempted to eliminate or reduce any adverse impact.

Victimisation

Where surplus posts have been identified, steps should be taken to ensure that members who have ongoing grievances with employers are not prevented or excluded from applying for other vacancies as this might provide grounds for individual claims of victimisation, and/or unfair selection for redundancy.

The business case

Relocation proposals can also be analysed in relation to the business case that has been presented to support the relocation proposals including projections as to savings on staff costs, building costs, and better delivery of public services.

Negotiators should also look at costs associated with retraining new staff, costs linked to ongoing obligations for rental costs of existing buildings and transfers to new buildings.

A race equality impact assessment should aim to demonstrate how the delivery of public services would be affected. In terms of adverse impact on service delivery the impact should be assessed as nil, low, medium or high.

Where the assessment scores at a medium or high, employers have a duty to ensure that adjustments are made to reduce the adverse impact, whether in the delivery of public services or in employment policies.

Where a department is unable to demonstrate how it intends to avoid any reduction in services, for example in relation to access to services, this information should be used to challenge the business case.

The aim of the exercise should be to establish whether there was an alternative way of achieving the Lyons objective i.e. delivering a better public service in a more cost effective way whilst continuing to promote race equality.

The proposed area for relocation

The Office of Government Commerce has produced guidance on prospective areas for relocation. This also includes advice on ensuring that race equality considerations are taken into account.

Socio-economic considerations

Socio-economic data about local conditions in the proposed area for relation is also an important consideration in conducting a race equality impact assessment. This might include information concerning:

Affordable and desirable housing stock in the area of relocation Information available from The Department for Communities and Local Government Website

Access and places available at schools in the relocation area. Information available from Local Education Authorities

Community services: access to goods, facilities and services tailored to cultural or religious needs for all ethnic groups. Information available from town halls, local libraries and community centres.

Information about racial or religious Incidents including crimes based on race hate or religious intolerance. Statistics should be available from local community groups contactable via town halls or local police forces.

Government policy on promoting race equality

The Government has a stated policy to promote racial equality and community cohesion and a number of commitments have been made to achieve these objectives. In relation to the economic activity, there is at least an 18% gap between white and black workers and the government has pledged to take measures to close that gap.

In ‘Improving Opportunity, Strengthening Society a commitment was made that the government “….will lead by example in promoting diversity and ethnic minority achievement in the workplace. To accomplish this all government departments will implement plans to improve the recruitment and promotion of members of ethnic minority groups.”

In addition, the government has incorporated into UK law, European Council Directive 2000/43/EC (implementing the principle of equal treatment between persons irrespective of racial origin) more commonly known as the ‘Race Directive 2003’.

The framework directive explains that the European Union Member States:

“Should foster conditions for a socially inclusive labour market by formulating a coherent set of policies aimed at combating discrimination against such groups as ethnic minorities.

Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, the raising of the standard of living and quality of life, economic social cohesion and solidarity………” (paragraphs 8 and 9)

Civil service policy on equality and diversity

People from ethnic minority groups account for approximately 30% of London’s population and just under 50% of the UK’s entire BME population.

Civil Service monitoring statistics indicate that black and minority ethnic staff account for approximately 27% of the London based civil service (this figure doesn’t include all departments and is based on employees who have indicated their ethnic origin: there is a 37.1% non response rate.

Civil Service monitoring statistics can be found on the Government Statistics Website

An analysis of data shows that staff from ‘black’ ethnic minorities backgrounds are disproportionately represented at junior and operational grades/levels.

These are the posts that Lyons will have a primary impact upon. It is likely therefore that relocation proposals may result in a disproportionate adverse impact in terms of employment opportunities for black ethnic minority employees, particularly as Lyons primarily focuses attention on relocating posts as opposed to posts and people.

In 2005, the Cabinet Office launched a policy document aimed at promoting equality and diversity across the civil service, “Delivering a diverse civil service: A 10 point plan”.

The plan made specific reference to the need to mitigate against any adverse impact of the Gershon and Lyons proposals. Point 8 of the Plan provided that:

“Diversity impact of the efficiency and relocation reviews

We know that there is real concern about the potential impact of efficiency savings and relocation on under-represented groups, particularly black and minority ethnic and disabled staff. Maintaining a diverse talent pool for the SCS is important in achieving the diversity targets for 2008 and for working towards a longer-term aim of achieving a Civil Service that is representative of the population at all levels.

We want to ensure that the Civil Service remains representative of the population in terms of gender and ethnicity and that we continue to prioritise and improve representation of disabled people, where we know that significant challenges remain. We will maintain a corporate watch on the diversity impact of efficiency and relocation plans and departments are carrying out impact assessments to ensure that no particular group of staff is unfairly discriminated against.“

A new strategy was launched in 2008 see the Civil Service Website and whilst this does not have a specific reference to the need to address the impact of relocation it does include requirements to improve representation and diversity at all levels

Departments are required to produce their own plans to meet the requirements of the new strategy and to ensure that they are meeting their legal obligations under the race, disability and gender equality duties.

Employer’s duty to mitigate against adverse impact

In order to proceed with a relocation proposal the employer must be able to show that:

An appropriate race equality impact assessment was conducted and published.
The relocation proposals under scrutiny were the only way of achieving the stated objectives.
Affected stakeholders (i.e. staff and trade union side reps) were consulted, and
Steps were taken to mitigate the adverse impact in terms of employment issues (this might include redeployment, training with a view to acquiring additional skills/competencies, time off to complete application forms and attend internal and external interviews, placement on jobs priority lists), and service delivery and impacts on the community

Employer’s defences

Where equality impact assessments indicate that the implementation of the relocation proposals will result in an adverse impact, this may give rise to a potential claim for indirect discrimination, particularly where the adverse impact indicates that a high proportion of staff from BME backgrounds will be displaced, and perhaps put at risk of redundancy.

The employer may have the right to claim justification as a defence to indirect discrimination.

Justification can only be pleaded if the employer can demonstrate that:

the implementation of the relocation proposals under scrutiny was the only way of meeting the stated objective (i.e., cost effectiveness and improved service delivery);
having identified that the proposals could have an adverse impact took steps to mitigate the adverse impact; and
The proposals were a proportionate way of meeting the Lyons objective.

Negotiators who have concerns that an impact assessment has not been properly conducted or that an employer has failed to mitigate against adverse impact should contact the Equality Health and Safety Department for advice. Contact Lorna Campbell on 020 77801 2683 or email Lorna.Campbell@pcs.org.uk

Campaigning against adverse impacts

Campaigning and raising awareness about the adverse impacts of relocation proposals can be an effective tool in preventing employers from implementing relocation proposals that may be discriminatory.

Members, non-members, service users, community groups and local and national politicians are all likely to have concerns about access to services and impacts on local employment.

Organising a successful campaign means that negotiators should be proactive in analysing and challenging relocation proposals and should consider raising their issue and concerns through formal dispute procedures, and by involving community groups, politicians and the media.

PCS has a dedicated campaigns unit that can work with you in developing your campaign.

Grounds for legal challenge

Whilst responsibility for direct enforcement of the amended Race Relations Act lies with the EHRC , public authorities that fail to properly conduct race equality impact assessments and to act on their findings may also be subject to claims for indirect discrimination and judicial review.

Negotiators should seek to involve both the EHRC and the equality, health and safety department at an early stage where it is believed that the employer has failed to meet the duty to promote race equality as required in law.

Judicial review in relation to race equality impact assessments is a new area of law that is still developing and it is important that PCS should identify the best and strongest case to take in order to set a useful precedent for others to follow.

Legal advice suggests that the strongest cases are likely to concern decisions relating to the failure of a public authority to:

Conduct appropriate/proper impact assessments
Publish results of impact assessments
Consider alternative ways to achieve cost effectiveness or improve service delivery
Implement measures to mitigate against adverse impact

Time is of the essence. There is a three-month timescale in which judicial review of decisions can be sought.

Negotiators who believe that there may e grounds for seeking judicial review should refer the request for legal assistance to the equality, health and safety department with a summary of the background and supporting papers. Contact Lorna Campbell on 020 7801 2683 or email Lorna.Campbell@pcs.org.uk

The impact assessment process

Screening

Identify main aims of policy
Collect information
Decide if the policy is relevant (Relevant, Not Relevant, or Exit Process)

If the proposed policy is likely to have an adverse impact on race equality.

Full assessment

Identify all aims of the policy
Consider the evidence
Assess likely impact
Consider alternatives
consult formally
Decide whether to adopt the policy
Make monitoring arrangements
Publish assessment results

Once a policy is adopted, it must be continuously monitored and reviewed to ensure that it does not result in adverse impact.

Identify main aim of policy

As a general rule of thumb, include all policies and screen all policies, until it is clear they do not have racial implications.

In order to undertake effective screening of policies, it is important to understand the aims of the policy.

For instance, promotion procedures are supposed to be fair and transparent the objective being to promote the best candidates for posts. For instance a ‘Meals On Wheels’ service is supposed to provide food that is appropriate to their clients’ dietary requirements and that may also include religious/cultural needs.

Checklist

To assist in identifying the aims of a policy, it is helpful to ask the following questions:

What is the purpose of the proposed policy (or changes you want to make to the policy)?
What is the objective of the policy or the change to the policy?
Who is intended to benefit from the policy and how?
How will proposed policy be implemented and who is responsible for each stage of the implementation process?
What are the expected outcomes of the policy
What criteria will be used to evaluate and measure progress towards expected outcomes?

Collect information

After identifying relevant policies it is important to collect data about the policy and to have contemporary and reliable information about the different groups the policy is likely to impact on.

The type of information needed will depend on the purpose of the policy. Information may come from various sources and could include

Demographic data and other statistic, including census findings.
Labour Force Data statistics.
Recent research findings including studies of deprivation. Information of this nature is available from the government’s social exclusion unit.
Results of equality monitoring data.
Analysis of complaints of racial discrimination by your authority in employment or service delivery.

Recommendations of inspection and audit reports and reviews, such as ‘best value’.

Should the statistical evidence show disparities by ethnicity in success rates, the promotion procedures should be subjected to a full assessment.

Stage two: full assessment

As the flow chart Annex A indicates, a full assessment a policy should be carried out in eight stages:

Identify all aims/objectives of the policy
Consider the evidence
Assess the likely impact of policy
Consider alternative policies that could policy objectives
Consult formally
Decide whether or not to adopt the policy
Institute monitoring arrangements
Publish monitoring results

Identify main aim of the policy

Assess whether policy’s implementation could affect different racial groups differently causing an adverse impact on any racial group.

You should use the checklist outlined under “Screening” under the heading “Aims of policy” and further identify:

To what extent will policy achieve equal opportunities and promote good relations between racial groups?
Are there any risks associated with the policy, particularly for meeting the general duty?
Who are the stakeholders of the policy?
Do the stakeholders include representatives from all the racial groups likely to be affected by the policy?
Is the policy likely to have widespread support from all the stakeholders?

Consider the evidence

The Screening stage should have made you aware of the amount of information about the different racial groups likely to be affected by the policy.

You should further identify what sort of information are you likely to need to develop an effective policy that benefits all racial groups equally. You may need to consider:

Who will decide what information will be needed and where to look for it?
Will any of the affected groups be consulted? If not, why not?
What quantitative and qualitative information is already available internally, e.g., staff statistics, trade unions, staff surveys, public surveys, focus groups

Is the information reliable?

Will information need to be supplemented through additional research, or specially commissioned qualitative or quantitative surveys, consultation exercises?

Who will have responsibility for pulling together all the data, analysing and reporting on findings?

Assess likely impact

The assessing of the likely impact is crucial to the impact assessment process. Your starting point will focus you on any disparities or potential disparities indicated in the screening process. A judgement will now have to be made as to whether the disparity identified amounts to adverse impact.

In order to make a judgement, policies will have to be systematically evaluated against all the information and evidence gathered. According to the CRE guidance, a judgement will have to be made as to whether the policy is likely to have significant negative consequences for a particular racial group(s).

The CRE has not explained how to define the benchmark of ‘significant negative consequences’ but if a particular ‘racial group’ is continually being adversely affected by a policy, the least a public authority is expected to do is to:

Recognise the adverse impact
Explain the reason(s) for the adverse impact
Introduce factors that will mitigate or compensate for the negative impact
Provide evidence that they have considered alternatives to the existing policies and those alternatives are not viable because they have a worse impact on those groups, or would spread the disparity further
Objectively justify the implementation of the policy.

Checklist

Does analysis of policy indicate disparities between different racial groups?
Are there other factors that may explain the adverse impact. If not, if race remains a significant factor, would changes to the policy, or the way it is put into practice, remove, or substantially reduce the adverse impact?
Could the policy lead to unlawful direct discrimination? If yes it must be abandoned and different ways must be explored to meet objectives
Could policy lead to unlawful indirect discrimination? If yes, public authorities are obliged to look for different ways of achieving policy aims.
Could policy damage relations between authority and a particular racial group(s)?
Has authority discussed with assessments with interested/affected stakeholders

Consider alternatives

In the event that assessment indicates that the proposed policy is likely to have an adverse impact on a particular racial group (or groups) there are four options available:

Make changes to the proposed policy that satisfy concerns raised by clients or staff.

Consider ways of putting the proposed policy into practice that remove or reduce its potential for affecting some racial groups adversely in a way that takes account of the results of any surveys or investigations the local authority may have conducted to eliminate institutional barriers to equality of opportunity and equal treatment.

Find an alternative means of achieving policy objectives/aims.

Justify the policy. If the public authority pursues this option then it must be able to show that there were no alternative ways of achieving policy aims.

Checklist

Does assessment indicate policy could have adverse impact on some racial groups? If yes, the public authority should review the policy’s aims and objectives and reconsider its approach.
Are there aspects of the proposals that could be changed or could authority take additional measures to reduce or remove adverse impact on a particular racial group?
Consider who each policy option advance or hinders equality of opportunity?
Could proposed policy lead to tensions between racial groups? If yes, examine the source of the tension and identify alternatives
Will the social and economic (both short and long term) costs to the adversely affected racial group outweigh the benefit to the policy.
What are the net social benefits of implementing each option.
If a decision is made to implement the policy to the detriment of the adversely affected group(s) what are the consequences in law for adopting the discriminatory policy. Can the implementation of the policy be justified as necessary and appropriate to carry out public authority’s function

Consult formally

Consultation should be an on-going process and is not precluded once the policy is implemented. Who is consulted and how the consultation is carried out is of critical importance. All stakeholders should be consulted and a variety of consultation mechanisms should be used

Checklist

Have all service users racial groups affected been consulted?
Which organisations and individuals are likely to have a legitimate interest in the policy?
What methods of consultation are most likely to succeed in attracting the people that should be included
Have employees of advisory/focus groups been consulted?
Have trade unions been consulted?

Checklist

Decide Whether to Adopt Policy
To assist the decision making process as to whether or not the policy should be adopted four factors need to be considered:
Aims of policy.
Evidence collected regarding the potential impact of policy.
Results of consultations.
Relative merits of alternative approaches.

In addition you will need to be able to answer the following questions:

Does the assessment indicate that the policy will have an adverse impact on a particular racial group(s)?
Is the proposal/policy likely to make it difficult to promote equal opportunities or good relations between different racial groups?
The report should clearly show the weight accorded to each type of evidence, e.g. If the answer to both the above questions is “yes” can the policy be revised or additional measures taken so that it achieves its aims but without risking any adverse impact?
What were the main findings of the consultations and what weight should be given to the findings as well as the other evidence collected?
In terms of deciding whether or not the policy should be implemented, who will be involved in the decision making process?
How will the decision making process be structured and how will the decisions be recorded?

It is important that a record of conclusions at each stage is recorded and those decisions are included in a race equality impact assessment report.

The report should clearly show the weight attached to each type of evidence e.g. from

Monitoring data.
Research findings and other statistics.
Results of consultations.

An explanation for the reasons for coming to a particular conclusion should be provided as well as an explanation as to how the policy will be implemented, including any suggestions for training, monitoring, redeployment, etc.

Make monitoring arrangements

The impact of a policy will only be known once it is in operation. This means that it will have to be monitored for a period of time to find out what is actually happening. Public authorities implementing policies are required to publish monitoring reports.

Checklist

Proper consideration should be given to the following questions before the policy is introduced:

Is it possible to pilot policy to see how it actually affects people?
How will the results of the pilot be taken into account, prior to the policy being finally adopted and launched?

How will policy be monitored once it is launched:

what sort of data will be collected
how often will it be analysed
will monitoring include qualitative methods, such as surveys or follow up consultations

Who will be responsible for on-going monitoring

How will the effects of the policy impact on equality of opportunity and good race relations be monitored
What criteria will be used to assess these
Has a formal monitoring programme been drawn up to ensure the entire process is followed through systematically and within a realistic timetable

Publishing assessment results

Under the specific duty to produce and publish a race equality scheme (including an employment monitoring scheme) public authorities must make arrangements for publishing the results of assessments and consultations carried out of any policy that is relevant to the race equality duty.

The published report should be readily available to anyone who requests a copy and this includes arrangements made for providing translations in languages other than English. Public authorities must also have arrangements for making documents available in alternatives forms, e.g. Braille, and audio versions.

Requirement to conduct race equality impact assessments – parliamentary question

Branch briefing BB.30/05 explained the legal obligations and conditions giving rise for public authorities (e.g. civil service departments) to conduct race equality impact assessments in relation to functions, policies and decisions that could result in adverse impact, leading to race discrimination.

Despite clear statutory requirements, there have been a number of disputes and misunderstanding arising about the need to conduct race equality impact assessments. In respect of these misunderstandings, Margaret Moran MP tabled the following PQ on 10 July:

“To ask the secretary of state for communities and local government whether equalities impact assessments (a) are required and (b) may be directed to local authorities budget decisions.”

Meg Munn (minister for communities and local government) responded:

"All local authorities are required to undertake race equality impact assessments on policies and functions where there is relevance to race equality. This could include budget decisions if they are to result in a policy change that is likely to have an adverse impact on any ethnic group or if there is an opportunity to promote race equality.

It is for the public authority to screen their policies, functions and decisions to decide whether there is any relevance to race equality, and if so to undertake a race equality impact assessment.

"The secretary of state may not direct an authority to conduct an impact assessment, but the Commission for Racial Equality has the power to issue a compliance notice to public authorities if the Commission believes that the authority is failing in its duties to promote race equality. …..”

Although the PQ was asked in relation to local authorities, the same principles read across to civil service departments/agencies as they are also public authorities organisations governed by the Race Relations Amendment Act 2000.

Where disputes arise, negotiators should bring the PQ to the employer’s attention. In addition where employers have conducted inappropriate, refused or failed to conduct race equality impact assessments as required or there is a dispute as to whether or not a function or a decision has racial implication that could lead to race discrimination, negotiators are asked to contact the equality, health and safety department.