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.
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.
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.
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.
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.
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.
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.
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.
An analysis of a race equality impact assessment should include:
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.
Staff affected by the relocation proposals should be contacted to identify whether:
The information collected should indicate how far the employer has attempted to eliminate or reduce any adverse impact.
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.
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 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 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.
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)
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.
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:
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.
In order to proceed with a relocation proposal the employer must be able to show that:
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:
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 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.
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:
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
If the proposed policy is likely to have an adverse impact on race equality.
Once a policy is adopted, it must be continuously monitored and reviewed to ensure that it does not result in adverse impact.
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.
To assist in identifying the aims of a policy, it is helpful to ask the following questions:
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
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.
As the flow chart Annex A indicates, a full assessment a policy should be carried out in eight stages:
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:
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:
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?
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:
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.
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
In addition you will need to be able to answer the following questions:
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
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.
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.
Proper consideration should be given to the following questions before the policy is introduced:
How will policy be monitored once it is launched:
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.
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.
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