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Students: Chapter 9

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Quizzes

Self-test Questions

  1. What are the main differences between equal opportunities and managing diversity?
  2. Can a claimant compare their current wage/salary with their predecessor?
  3. What are the functions of the Equality and Human Rights Commission (EHRC)?
  4. Can you make a claim for discrimination based on actions taken by the employer in response to your philosophical beliefs?
  5. Put forward four reasons to support the business case for equal opportunities.
  6. Over 70 per cent of tribunal claims under equal opportunities legislation are either withdrawn/struck or a financial settlement is reached under ACAS conciliation so no tribunal case actually occurs.
  7. True or false?
  8. What are the three main forms of discrimination?
  9. What is a ‘Genuine Occupational Qualification’ (GOQ)?
  10. What does the expression ‘glass precipice’ mean?
  11. What is a ‘reasonable adjustment’?
Answers

1. Table 9.4 gives a good summary.

2. Yes. See Spotlight on the Law 9.9.

3. The functions of the Equality and Human Rights Commission are:

  • To monitor the implementation of the Equality Act
  • To promote equal treatment at work and to eliminate discrimination
  • To draw up codes of conduct
  • To make recommendations to government for improvements in the working of the Act and to advise on how the Act should be revised to help meet the other goals
  • To undertake investigations into organisations where high levels of discrimination appear to permeate throughout the organisation

4. Yes. See Spotlight on the Law 9.10.

5.

  • Demographic changes – reduction in number of younger employees as birth rate falls
  • Changing nature of the workplace – growth in service industry
  • Growing emphasis on customer relations
  • Conveying image of good employer

6.  True. See Table 9.1.

7. Direct, indirect and victimisation. (You can also add harassment.)

8. A GOQ in sex or race instances is where a candidate is chosen in pursuit of authenticity or to preserve privacy and dignity or where the job is in a single-sex establishment.

9. Older employees may be constrained from career development activities where employees see a limited investment return from training.

10. Adjustments need to be made by employers to compensate for practical problems faced by disabled employees. The ‘reasonable’ nature takes into account the cost of the adjustment, the size of the organisation and the practical benefits that arise from the adjustment.

Annotated Further Reading Guide

ACAS (2011) Voluntary Gender Equality Analysis and Reporting. ACAS.

Provides guidance for private sector and voluntary bodies who want to go down this road.

Bacon, N. and Hoque, K. (2012) The Role and Impact of Trade Union Equality Representatives in Britain. British Journal of Industrial Relations, 50(2): 239–262.

An evaluation of the TUC’s equality representative initiative.

Buchanan, R. (2011) Protecting Philosophical Beliefs: Has the Law Gone Too Far? Tolley’s Employment Law Newsletter, June, 16(12): 91–93.

Should employees’ beliefs in respect of foxhunting and public service broadcasting be protected?

CIPD (2012) Game On! How to Keep Diversity on Track. CIPD.

Reports from CIPD senior diversity network to provide insights to help advance diversity and inclusion in organisations.

Equal Opportunities Review (2012) Implementing the New Public Sector Equality Duty. EOR Report 226, July, 12–23.

A detailed look at the NHS Equality Delivery System focusing on specific practices in a number of NHS organisations (including trusts covering Bradford and Airedale, Lancashire Care, West Midlands Ambulance) and local government in Cornwall and Harrow.

Foster, C. (2011) British Transport Police: Tackling Unconscious Bias in Recruitment. Equal Opportunities Review, September, 216: 18–21.

Tackling low numbers of women entering policing.

Fredman, S. (2011) The Public Sector Equality Duty. Industrial Law Journal, December, 40(4): 405–427.

A critique of the law and its process in respect of the public sector.

Goodwin, K. (2012) Cisco: Engaging the Majority on Inclusivity. Equal Opportunities Review, May, 224: 19–21.

A case study of a novel approach to inclusivity at Cisco.

Harper, B. (2011) BAE Systems: Challenging Gender Stereotypes. Equal Opportunities Review, September, 216: 10–13.

This case examines the way that BAE encouraged more girls into engineering, using biomimicry which appears to resonate with girls.

IDS (2012) Victimisation Claims under the Equality Act 2010. IDS Employment Law Brief 946, April, 14–19.

A detailed examination of the law regarding victimisation including significant case law.

Kumra, S. and Manfredi, S. (2012) Managing Equality and Diversity. Oxford University Press

Comprehensive approach to theory and practice.

Newman, D. (2011) Positive Action in Recruitment and Promotion. IRS Employment Review, 12 April.

Examines the positive action provision in the Equality Act 2010, noting the ongoing confusion.

Robertson, J. (2012) Promoting Diversity. Incomes Data Services.

Examines the business drivers with a number of case studies.

Theilade, A. (2012) Cheshire Probation Trust: Managing the Diverse Needs of Staff. Equal Opportunities Review, April, 223: 22–24.

Case dealing with needs of ethnic minority staff.

Woods, D. (2012) Diversity: Still a Long Way to Go. Human Resources, October, 37–41.

HR magazine survey results reveal the true state of diversity policy among UK employers. Some of those with policies acknowledge that these are little more than window-dressing and the concept of diversity branding, or diversity being an essential part of strategy, is not understood.

Woolf, C. (2011) Equal Opportunities: A Journey to Excellence at South Yorkshire Fire and Rescue. IRS Employment Review, November.

Useful case study of maintaining high-quality EO practice despite budget cuts.

For a general introduction to the subject, see:

Clements, P. and Spinks, T. (2009) The Equal Opportunities Handbook: How to Recognize Diversity, Encourage Fairness and Promote Anti-discriminatory Practice, 4th rev ed. London: Kogan Page.

Daniels, K. and MacDonald, L. (2005) Equality, Diversity and Discrimination. CIPD.

Green, A. and Kirton, G. (2009) Diversity Management in the UK. Routledge.

Incomes Data Services (2010) Managing Diversity. HR studies. London: IDS.

Jones, P. (2011) What is Unconscious Bias? Equal Opportunities Review, August 215: 21–24.

Kandola, B. (2009) The Value of Difference: Eliminating Bias in Organisations. Oxford: Pearn Kandola.

The Equality and Human Rights Commission (EHRC) publications include:

  • Sex and Power (2011)
  • How Fair is Britain – Equality, Human Rights and Good Relations (2010)

Publications on specific areas of discrimination include:

Age discrimination

Maitland, A. (2010) Working Better: The Over 50s – The New Work Generation. Equality and Human Rights Commission.

Newman, D. (2012) Justifying Age Discrimination. Equal Opportunities Review, 220: 16–17.

Sargeant, M. (2010) Age Discrimination: Ageism in Employment and Social Provision. Gower Publishing.

Disability discrimination

Berthoud, R. (2011) Trends in the Employment of Disabled People. Institute of Social and Economic Research.

IDS (2010) Disability Discrimination. Employment Law Handbook. Incomes Data Services.

Sayce, L. (2011) Getting In, Getting Out and Getting On: Disability Employment Support. TSO.

Sex discrimination

Bobbitt-Zeher, D. (2011) Gender Discrimination at Work. Gender and Society, 25(6): 764–786.

Hakim, C. (2011) Feminist Myths and Magic Medicines: The Flawed Thinking behind Calls for Further Equality Legislation. Centre for Policy Studies.

Lewis, J. (2009) Work–Family Balance, Gender and Policy. Edward Elgar.

McLoughlin, C and Deakin, S. (2011) Equality Law and the Limits of the Business Case for Addressing Gender Inequalities. University of Cambridge.

Perfect, D. (2011) Gender Pay Gaps. Briefing Paper 2. Equality and Human Rights Commission.

Extra Case Studies

Case 1

Moving towards sexual equality at the Bank of England

The Bank of England has two main committees, the monetary policy and the financial policy, and they are all currently filled by men. The Bank’s court of directors, whose job is to manage the bank, is just a tad more enlightened – there is just one woman among the twelve grandees who meet seven times a year.

However, nearly a third of middle and senior management jobs at the Bank are now held by women – up 50 per cent on a decade ago. In the financial stability unit – whose job is to ensure there will never be a repeat of the 2008 financial crash – two of the six divisional heads are women.

The Bank is aware of its image problem. A women’s network was set up in 2007 and Sarah Breeden, now one of the two bosses in financial stability, was asked to take a role co-chairing the network. The other divisional head is Victoria Saporta, who runs the 30-strong prudential policy division and is an expert in the amount of capital big banks should be forced to hold.

Breeden, 44, is now head of the Bank’s risk assessment division, charged with looking for the unknown unknowns – the ticking time bombs outside the banking industry that no one has considered might be a problem.

She is new to this job, previously held by Niki Anderson, 42, who is also one of the Bank’s most senior executives and is now a special adviser on financial stability.

All three are long-standing employees of the Bank and played key roles during the banking crisis. Greek-born Saporta, 43, returned from a year-long maternity leave just days before the first signs of the 2007 credit crunch – which sparked the run on Northern Rock – and went on to become a key figure in devising the amount of capital banks should hold. She was seconded to the Cabinet Office when the G20 was held in London in 2009.

Breeden was hand-picked by the governor to run the team that tackled the Northern Rock crisis, while Anderson’s role was to work out which banks and building societies might fail next.

‘It was unrelenting, for about six months,’ she recalls. ‘It was every single weekend. If we weren’t trying to get more information about what would happen, we had to write systemic impact reports. We became BlackBerry junkies overnight.’

She was on the fateful conference call in September 2008 when Lehman Brothers was allowed to collapse rather than be rescued by Barclays.

Coming up through the ranks is Lauren Anderson, an American lawyer who joined the Bank in 2011 after working on US bank failures and is now a senior manager in the special resolution unit, whose job is to devise plans to ensure that if and when banks fail in the future they do not bring down the financial system with them.

‘It is the most interesting work,’ she says. ‘When things go terribly wrong, we’re the ones who go in and fix it and make sure people have access to their money on a Monday morning. That’s a pretty amazing job to have.’

Breeden, who has been at the Bank since 1991, admits that she asked for 24 hours to think before accepting the job when the governor personally asked her to take charge of the team involved in Northern Rock.

‘I wanted to make sure that I knew what the job involved. I knew it was important and I didn’t want to mess it up,’ says Breeden, who ended up working on the Northern Rock crisis for five months until it was nationalised five years ago this month.

She then took a month off with her husband and two children, now seven and ten, before coming back to develop what was to become the special liquidity scheme, a kind of emergency slush fund for banks, and later helped devise the new regulatory regime, which will see the Bank once again policing the insurance and banking businesses.

The banking crisis meant long and intense working hours, but Niki Anderson said the experience has had a long-lasting effect. ‘I work 50 per cent more effectively,’ she says.

When she started at the Bank, King was chief economist and keen for information on inflation expectations, so she devised a model that uses government bond yield curves – an indication of a price a government pays to borrow – to measure inflation expectations. Twice she has been tempted away from the Bank, once to work for a hedge fund and then for an investment bank.

‘I wasn’t sure if my career was going to go anywhere. I perceived a bit of a glass ceiling,’ she says. But she returned both times, admitting that the private sector was not as rewarding.

This is also what keeps Breeden at the bank. ‘What we do ... matters. The judgements that we make and the analysis we do really matter for everybody out there,’ she says.

They could earn more in the City. Saporta is aware of this as manager of a 30-strong department: ‘What keeps them here is a commitment to public policy. You have to keep them motivated given there is a big opportunity cost in staying on.’

Women made up 43 per cent of graduates recruited into permanent jobs at the Bank last year, up from 29 per cent in 2011, and the Bank recently won an award for the public-sector employer doing the most to create a pipeline of female leaders of the future.

King’s successor – Bank of Canada boss Mark Carney – takes over from him in the summer and will serve for five years. Time enough, possibly, for the old lady to find a female face?

Source: Treanor, J. (2013) Bank of England Women doing Sterling Work to Keep our Money Safe. The Guardian, 27 February.

Case 2

Clarification in the law on religious discrimination and human rights

Judgment in the cases of four Christian employees in January, who all claimed that their employers’ practices violated their human rights, had been much anticipated. But how much more has the European Court of Human Rights (ECHR) told us about the right to demonstrate religious beliefs at work, or an employer’s right to prevent it?

The main message to take from the judgments can neatly be summed up by one sentence from the ECHR’s press release, which says that ‘where an individual’s religious observance impinges on the rights of others, some restrictions can be made’.

Affecting the rights of others

Nadia Eweida, who wore a small cross on a necklace, was the only individual to be successful in Strasbourg. Seven years after commencing employment with British Airways (BA), she started wearing the cross openly, over her uniform, as a sign of her commitment to her faith. This was in breach of the company’s uniform policy.

The ECHR felt that, in this scenario, there was no evidence of any real encroachment on the interests of others. In reaching this conclusion, a balancing act was carried out by the Court. On one side was BA’s desire to project a particular corporate image, and on the other was Ms Eweida’s desire to display her religious beliefs. The cross was discreet and did not detract from her professional appearance.

There was no indication of negative impact on the BA brand when others had previously been authorised to wear items such as turbans and the hijab. Perhaps most tellingly, BA had in fact been able to amend the uniform code to allow visible wearing of religious symbolic jewellery. This happened after Ms Eweida’s plight initially hit the headlines, and consultation then took place with staff and trade unions.

Ms Eweida’s desire to wear a cross openly did not affect the rights of others. The Court was willing to accept BA’s argument that projection of a particular corporate image was a legitimate aim.

However, the ECHR also found that UK courts and tribunals had not struck an appropriate balance between BA’s aim and the employee’s right to demonstrate her religious beliefs at work.

In contrast, Shirley Chaplin, a hospital geriatric nurse, insisted on wearing a crucifix visibly over her uniform, contrary to her employer’s policy. The principal concern in implementing this policy had been to protect the health and safety of both nurses and patients.

Because Ms Chaplin’s wish to wear her crucifix could have negatively affected the safety of herself and others, the Court was unwilling to find that she had a right to display her religious beliefs in the way she wanted.

In this case, the balance had been correctly measured by the UK tribunals and for this reason Ms Chaplin’s claim was unsuccessful.

Religious requirement or personal preference?

Another important question in both these cases was whether or not the individuals needed to show that their actions amounted to a mandatory requirement of the religion before they could have a legitimate complaint. The ECHR decided that this would not be a requirement, but an individual’s actions would need to be ‘intimately linked’ to the religion.

Applying this principle, however, is unlikely to be straightforward. In reality, it will need to be approached on a case-by-case basis and could lead to further disputes and an increased need for employers to be able to justify their existing practices.

For example, another recent employment appeal tribunal case considered whether the desire not to work on a Sunday was a ‘core tenet’ of Christian belief. In this case, an employer’s aim to ensure that all full-time staff worked on Sundays in a fair rotation was legitimate and justifiable, and consequently a Christian worker could lawfully be required to work on a Sunday. But it may be that the ECHR’s judgment will make this type of practice easier to challenge, or at least see such issues being revisited.

Discrimination is not a human right

In the other two cases considered by the ECHR, Lillian Ladele and Gary McFarlane argued that their Christian beliefs concerning homosexuality were in conflict with the duties of their jobs, which required them to perform services for gay couples.

Ms Ladele was a registrar who refused to conduct civil partnership ceremonies. Mr McFarlane was a relationship counsellor who refused to offer psychosexual counselling to gay couples. Both were disciplined for their actions. The UK tribunals and courts held that such discipline was not discriminatory in the circumstances and the ECHR agreed that there was no breach of their human rights.

The most important factor in these cases was that the employers had taken the actions they had as they were committed to provide services without discrimination. This, as legitimate aims go, is about as good as it gets and an employee will face an uphill struggle from the outset if trying to argue that action taken by their employer in pursuit of that legitimate aim is disproportionate in the circumstances.

Religion and sexuality

One way to look at this issue is that the employers wanted to ensure their employees delivered services without discrimination, whereas the employees wanted dispensation to be able to discriminate against others on the grounds of sexual orientation.

Recent research has found that ‘management confidence tends to be lowest when dealing with conflicting equality claims, particularly between religion or belief and sexual orientation’.

It is recognised that this is not an easy issue to navigate, but is again about performing a balancing act. It will not be acceptable for an employer to simply adopt the stance that, if an employee does not like what they are being asked to do, he or she can resign. This will be one factor to throw into the mix.

The same will hold true if the employee has willingly accepted a job knowing that the conditions of employment will affect their ability to demonstrate their religious beliefs.

Do policies and practices pursue legitimate aims and are they a proportionate means of achieving those aims? Can you learn from staff and trade unions and involve them in the process of review? And are line management adept at the art of balancing flexibility with consistency?

Employers that can answer these questions will build the confidence to deal with issues of religion in the workplace in a proactive manner and be best placed to avoid challenge through the courts and tribunals.

Source: Jones, A. and Delaney, A. (2013) Four Cases of Religious Discrimination and their Effect on Business. Personnel Today, 25 February.