Gower Handbook of Discrimination at Work

Gower Handbook of Discrimination at Work

Edited by Tessa Wright and Hazel Conley

Gower Handbook of Discrimination at Work

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Gower Handbook of Discrimination at Work Edited by

Tessa Wright London Metropolitan University, UK

and Hazel Conley

Queen Mary University of London, UK

© Tessa Wright and Hazel Conley and the contributors 2011 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Published by Gower Publishing Limited Wey Court East Union Road Farnham Surrey GU9 7PT England Gower Publishing Company Suite 420 101 Cherry Street Burlington VT 05401-4405 USA www.gowerpublishing.com Tessa Wright and Hazel Conley have asserted their moral rights under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. British Library Cataloguing in Publication Data Gower handbook of discrimination at work. 1. Discrimination in employment – Great Britain. 2. Diversity in the workplace – Great Britain. 3. Discrimination in employment – Law and legislation – Great Britain. I. Handbook of discrimination at work II. Wright, Tessa. III. Conley, Hazel. 658.3'008-dc22 Library of Congress Cataloging-in-Publication Data Wright, Tessa. Gower handbook of discrimination at work / Tessa Wright and Hazel Conley. p. cm. Includes index. ISBN 978-0-566-08898-8 (hardback : alk. paper) – ISBN 978-1-4094-2629-5 (ebook) 1. Discrimination in employment – Law and legislation – Great Britain. I. Conley, Hazel. II. Title. III. Title: Handbook of discrimination at work. KD3102.W75 2011 344.4101'133 – dc22 2010046912 ISBN 9780566088988 (hbk) ISBN 9781409426295 (ebk)

II

Contents

List of Figures ix List of Tables xi About the Editors xiii Notes on Contributors xv Acknowledgementsxxi List of Abbreviations xxiii Introduction1 Hazel Conley and Tessa Wright

PART I

LEGal FraMEWOrK aND tHE LiMitS Of tHE LaW

Chapter 1

A Right Not to be Discriminated Against: The Origins and Evolution of Discrimination Law Sonia McKay

Chapter 2

The Road to Equality: Legislating for Change? Hazel Conley

Chapter 3

Dignity at Work: The Law’s Engagement with Bullying and Harassment in the Workplace Jackie Jones

Chapter 4

The Law Relating to Pregnancy and Maternity Leave  Grace James

PART II DiSCriMiNatiON(S) iN tHE WOrKplaCE: GENDEr aND SEXUalitY Chapter 5

Chapter 6

9

11

23

33

47

57

Model Employment? The Challenges Ahead for Public Sector Employers and Unions in Tackling the Gender Pay Gap Carole Thornley and Dan Coffey

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Pay Inequality in Manufacturing Industry: The Case of the Printing Industry Tricia Dawson

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Chapter 7

Chapter 8

Career Obstacles, Discrimination and Women’s Independent Networks: Evidence from the UK and Germany Nicole Avdelidou-Fischer

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Creating Inclusive Organisations: What do Lesbian, Gay and Bisexual Employees in the Private Sector Think Makes a Difference? Fiona Colgan and Aidan McKearney

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Race, Migration and Religion

111

Chapter 9

The Racialised Organisation: The Experiences of Black Managers  Tracie Jolliff

113

Chapter 10 The Role of Trade Unions in Fighting Racial Discrimination Wilf Sullivan

129

Chapter 11 Migration and Work: Discrimination Obligatory? Nick Clark

139

Chapter 12 Management Handling of Religion and Belief in the Workplace: Challenges and Solutions Martin Mitchell, Chris Creegan and Sarah Dickens

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Disability

171

Chapter 13 Understanding Workplace Adjustments for Disabled Employees: The Law and Good Practice Deborah Foster

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Chapter 14 Mental Health and Discrimination: A Short Guide to Being Unreasonable Alex Tambourides

185



201

Age 

Chapter 15 Demographic Change and Implications for Workforce Ageing in Europe  Andrea Winkelmann-Gleed

203

Chapter 16 Ageism, Solicitors and Female Mature Entrants: An Awkward Combination Alexandrine Guyard-Nedelec

219

Chapter 17 The ‘Duty to Consider’: How Employers are Managing Requests from Employees to Delay Retirement Matt Flynn

235

Contents

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PART III Equality – New Approaches

247

Chapter 18 Measures to Tackle Disadvantage and Discrimination in Access to Employment: The Role of Employers Anna Paraskevopoulou and Monika Beutel

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Chapter 19 ‘Eyes and Ears’ in the Workplace: The Developing Role of Equality Representatives Sian Moore

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Chapter 20 Strategies for Equality: The Norwegian Experience of the Use of Gender Quotas in the Private Sector  Cathrine Seierstad

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Chapter 21 Tackling Gender Segregation in the UK Transport and Construction Sectors: Recent Initiatives and Procurement Strategies Tessa Wright

293

Index309

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List of Figures

Figure 11.1 Percentage of UK employees not born in UK  Figure 18.1 A model of critical success factors: tackling disadvantage, disengagement and discrimination

141 260

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List of Tables

Table 1.1 Table 3.1 Table 6.1 Table 6.2 Table 6.3 Table 11.1 Table 16.1 Table 20.1 Table 20.2 Table 20.3

Outcome of tribunal claims, 2007–2008 Average employment tribunal costs to employers Gross pay per week for full time workers – percentages by sex The sexual division of labour by department The sexual division of labour within each department Percent of workforce in main industrial sectors by country of birth Age distribution of solicitors admitted to the Roll in 2006–2007 Affirmative action strategies in place in Norway Human development report, equality ranking The requirement for representation of both sexes on public limited companies boards of directors by the gender representation law in Norway Table 20.4 Women’s representation on boards Table 20.5 Share of women as chairs on boards

20 43 73 76 76 142 223 282 284

285 287 287

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About the Editors

Tessa Wright Tessa Wright has written and researched in the areas of discrimination and equality at work for many years. During her 12 years as an equality researcher and editor at the Labour Research Department, she wrote and researched widely on the discrimination faced by women, ethnic minorities, disabled workers and lesbians and gay men in the workplace, as well as trade union responses. Since moving to the Working Lives Research Institute at London Metropolitan University, Tessa has continued to develop her interest in effective measures to combat discrimination at work, working on a range of European and UK research projects. She is completing a PhD at the Centre for Research in Equality and Diversity, Queen Mary, University of London on the experiences of women working in non-traditionally female occupations, examining the intersections of gender, sexuality and class.

Hazel Conley Hazel Conley started her working life as a bank clerk, where she quickly noted gendered and racialised workplace segregation along with the subtle and not so subtle discrimination that followed. In 1989 Hazel decided to enter higher education. It was here that she began to understand the theories and concepts that sought to explain discrimination at work. She has researched and published extensively, particularly on the ways in which labour market segmentation, especially in relation to non-standard forms of work, can result in discrimination and disadvantage. Her recent work focuses on the discrimination and equality legislation, examining its strengths and limitations as a tool for fighting discrimination.

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Notes on Contributors

Nicole Avdelidou-Fischer Nicole Avdelidou-Fischer earned her PhD from the Centre for Research in Equality and Diversity at Queen Mary, University of London. Having worked for over a decade in German and British corporations, Nicole has witnessed and personally experienced patriarchal structures that create barriers for women to access powerful coalitions. Familiar with the topic of networking and inspired by gaps in the academic literature, Nicole embarked upon an investigation of independent networks for business and professional women at the crossroads of feminist and social movement theories.

Monika Beutel Monika Beutel is a freelance consultant and trainer for the public and third sectors. Her career has been mostly in universities, as a sociology lecturer and academic manager. She has a range of interests, including women’s entrepreneurship and adult education. She coordinated a London Learning Partnership as well as ‘Disadvantage, Disengagement and Discrimination in London’, a Working Lives Research Institute project which examined learning and skills development approaches for adults from diverse deprived communities.

Nick Clark Nick Clark is Senior Research Fellow at the Working Lives Research Institute (WLRI). He has worked at the Labour Research Department (1983–1987), print union Society of Graphical and Allied Trades (SOGAT) (1987–1994), the Trade Union Congress (1994– 2005) – where he helped develop the TUC’s work on migrant workers – and in the General Secretary’s office at the Public & Commercial Services Union, joining WLRI in April 2009. He was a member of the Gangmasters Licensing Authority board from 2005 until January 2009.

Dan Coffey Dan Coffey is a Senior Lecturer at Leeds University Business School. His research interests include various aspects of the employment relation, in both the public and private sectors. He is co-author with Carole Thornley of Globalization and Varieties of Capitalism (2009) and coeditor with Carole Thornley of Industrial and Labour Market Policy and Performance: Issues and Perspectives (2003). He is widely published, and author and co-editor of several other books.

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Fiona Colgan Fiona Colgan is Director of the Comparative Organisation and Equality Research Centre and a Senior Research Fellow in the London Metropolitan Business School (LMBS) at London Metropolitan University. Her research interests include equality, organisation and employment relations focusing in particular on gender, sexual orientation and race/ ethnicity. Previous publications include two co-edited books, Women in Organisations: Challenging Gender Politics and Gender, Diversity and Trade Unions. She is currently publishing European Social Fund (ESF)- funded research on sexual orientation and equalities in the workplace.

Chris Creegan Chris Creegan is Director of Corporate Affairs at the National Centre for Social Research. He has researched and written widely on equality and diversity at work. He was previously a senior official for the public services trade union, UNISON.

Tricia Dawson Tricia Dawson has been a Senior Lecturer in HRM at Westminster Business School since 2008. She previously spent over 20 years working for the printing trade unions as a researcher and then as equality policy adviser with responsibility for developing and implementing equality policy across all equalities. She currently lectures in employee relations, human resource management and organisational behaviour.

Sarah Dickens Sarah Dickens was formerly a Research Director at the National Centre for Social Research, and is now a freelance social researcher. She has a strong interest in teasing out how social legislation is experienced in practice by the people it is targeting. In this context, Sarah recently worked with Martin Mitchell on a study of the impact of the Civil Partnership Act (2004), Adoption and Children Act (2002) and Employment Equality (Sexual Orientation) Regulations (2003) on the lives of same-sex couples. Sarah also has a strong research interest in the effects of social policies aimed at families and children and recipients of state welfare.

Matt Flynn Matt Flynn is a senior lecturer at Middlesex University Business School in the UK. His main area of expertise is age management. He has carried out research for the UK government, European Union, Economic and Social Research Council and British Council on age discrimination, age diversity and retirement. He has co-written the age

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management guide for the Trades Union Congress and Chartered Institute of Personnel and Development (CIPD).

Deborah Foster Deborah Foster is Senior Lecturer in HRM at Cardiff Business School, Cardiff University. Deborah’s research interests include workplace equality and diversity, trade unionism in the UK and EU public service sector and women in Asia. Recent publications include articles in Work, Employment & Society (2007) and the British Journal of Industrial Relations (2010): findings from an ESRC-funded study that examined disabled employees’ experiences of negotiating workplace adjustments under the terms of the UK Disability Discrimination Act (DDA).

Alexandrine Guyard-Nedelec Alexandrine Guyard-Nedelec teaches English for social sciences at the Ecole des Hautes Etudes en Sciences Sociales (EHESS), Paris, France. She has recently completed a PhD on ‘Intersectional discrimination against women lawyers and judges in England and Wales’ at Université Paris Diderot and has worked under the supervision of Prof. Kate Malleson (Queen Mary, University of London). She is part of a team working on the translation into French of British legal texts for a series of books on the Fundamentals of Anglo-Saxon Feminism.

Grace James Grace James is a Reader in Law at the University of Reading. She teaches Employment Law, Discrimination Law and European Law and her research interests focus upon familyfriendly employment policies and discrimination law.

Tracie Jolliff Tracie Jolliff has a background in social work and has worked in British public services as a professional and manager. As an organisational development consultant and cofounder of JT&C The Knowledge Group, she continues to influence change on issues such as ethical leadership development, systems transformation and equality creation. She is an associate consultant with the Bristol Business School and has developed innovative leadership programmes engaging with themes mentioned in this chapter. She lectures, writes, speaks and is an active member on various boards.

Jackie Jones Jackie Jones is a Senior Lecturer in Law at Bristol Law School, University of the West of England. Her research interests include discrimination and equality laws, gender, EU

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constitutional law and human rights. She has written numerous articles and books on these topics. Her latest co-authored book is entitled Gender, Sexualities and Law (forthcoming).

Sonia McKay Sonia McKay is Professor of European Socio-Legal Studies at the Working Lives Research Institute, London Metropolitan University. She heads a number of research projects, mainly focusing on discrimination, migration and collective organisation. She holds a law degree from Queens University, Belfast and a PhD in employment law from Wolfson College, Cambridge. She previously worked for the Labour Research Department (LRD) where she held the post of employment law researcher from 1983 until 2004.

Aidan McKearney Aidan McKearney is a Senior lecturer on the MA Human Resource Management programmes at London Metropolitan Business School (LMBS), London Metropolitan University. He oversees and teaches on the MA HRS course at the Moscow International Higher Business School (MIRBIS) Institute. Aidan is a member of the Comparative Organisation and Equality Research Centre based in the LMBS. His research interests include diversity and equality with a specific focus on exploring issues surrounding organisation sexuality and sexual orientation in the contemporary workplace.

Martin Mitchell Martin Mitchell is a Senior Researcher in the Qualitative Research Unit at the National Centre for Social Research (NatCen). He has conducted a number of studies and reviews related to religion and belief, sexual orientation and equal opportunities. He also has a background in sociology and health services research.

Sian Moore Sian Moore is a Reader at the Working Lives Research Institute at London Metropolitan University. Her research focuses upon the relationship between class and gender and upon trade union activism, recognition and learning. She currently has a Leverhulme Fellowship to look at the outcome of the UK’s statutory recognition legislation; her book New Trade Union Activism: Class Consciousness or Social identity? looks at the fused identities of class, gender, sexuality, race and age in new trade union activism.

Anna Paraskevopoulou Anna Paraskevopoulou is a Research Fellow at the Working Lives Research Institute, London Metropolitan University. After completing her doctorate on ethnicity and ethnic

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minorities at the London School of Economics, Anna has worked on a range of projects on disadvantage and discrimination in the labour market.

Cathrine Seierstad Cathrine Seierstad is a PhD student in the Centre for Research in Equality and Diversity in the School of Business and Management, Queen Mary, University of London. Her main research interests are women, leadership and the use of affirmative action strategies. In particular, her research has focused on the Scandinavian countries, Norway, Sweden and Denmark, in relation to the share of women and the use of affirmative action strategies in areas such as politics, academia and company boards of directors.

Wilf Sullivan Wilf Sullivan has worked for the TUC since December 2004 as TUC Race Equality Officer. Previously he worked in local government as a residential social worker. As a lay trade unionist, Wilf held a range of posts in National Association of Local Government Officers (NALGO) (now UNISON) and became a regional full-time officer in 1990 and UNISON’s National Black Members Officer in 2000. Wilf is a member of the Ethnic Minority Advisory Group that supports the Government’s Ethnic Minority Employment Taskforce. He represents the TUC at the European Trade Union Confederation (ETUC) on migration issues, is Vice-Chair of the UK Race and Europe Network, and an adviser to the board of the European Network Against Racism.

Alex Tambourides Alex Tambourides is the Workplace Lead for Mind and is Deputy Chief Executive for Hammersmith and Fulham Mind. Alex has been working in the field of mental health for over five years, driven by a passion caused by his own experience of depression. Alex manages a number of projects at local and national level, including Mind Workplace, a consultancy and implementation service which allows employers to measure how mentally healthy their workplaces are and provides recommendations for improvement, and In Work Support which provides support to people in employment with mental health problems.

Carole Thornley Carole Thornley is a Professor in Keele Management School at the University of Keele. She researches equalities, employment, and public policy. She is an Associate Editor for Gender, Work and Organization, and with Dan Coffey is co-author of Globalization and Varieties of Capitalism (2009) and co-editor of Industrial and Labour Market Policy and Performance: Issues and Perspectives (2003). She is widely published and has given evidence to many official enquiries and reviews.

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Andrea Winkelmann-Gleed Andrea Winkelmann-Gleed is a Senior Research Fellow based at the Working Lives Research Institute, London Metropolitan University since 2004. She holds a PhD from the University of East Anglia (2005) and her expertise is in demographic change, health care and international migration related to the employment of marginalised workers, including refugees, migrants, ethnic minorities and older workers. She is currently conducting research into innovative approaches to the management of workforce ageing in the UK and Europe.

Acknowledgements

The editors would like to thank the contributors to this edited collection for their patience and readiness to update their chapters in what has been a turbulent time for the legislature, politics and economy of the UK. We would like to thank Jonathan Norman at Gower for commissioning the Handbook and the rest of the team at Gower for their expert and gentle guidance. Lastly we would like to thank Winnie and George for the distraction.

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List of Abbreviations

AA Acas ACE BAME BEO BME BPIF CBI CIPD CoJ CPE CSR DDA DED DES DLOs DLR DRC DWP EAT EE(A)R EEA EFA EHRC EO EOC EOR ER ESA ESF ESOL ESRC ETD GED GEM GLA GLC GOR GPMU

Affirmative Action Advisory, Conciliation and Arbitration Service Age Concern England Black, Asian and minority ethnic Branch Equality Officer Black and minority ethnic British Printing Industries Federation Confederation of British Industry Chartered Institute of Personnel and Development Court of Justice Common Professional Examination Corporate Social Responsibility Disability Discrimination Act Disability Equality duty Disability Equality Scheme Direct Labour Organisations Discrimination Law Review Disability Rights Commission Department for Work and Pensions Employment Appeals Tribunal Employment Equality (Age) Regulations European Economic Area Employers’ Forum on Age Equality and Human Rights Commission Equal Opportunities Equal Opportunities Commission Equal Opportunities Review Equality Rep Employment and Support Allowance European Social Fund English for Speakers of Other Languages Economic and Social Research Council Equal Treatment Directive Gender Equality duty Gender empowerment measure Greater London Authority Greater London Council genuine occupational requirements Graphical, Paper and Media Union

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HCAs HRM IAPT IAS ILO ippr/IPPR IRLR LDA LFS LGB LGE LGPC LPC LSCs MRN NEET NERA NJC NVQ ODA OGC ONS PBS RDAs SAWS SDA SMEs SOGs SRA TAEN TfL TUC UCATT UKBA ULRs UMF WAMT WERS WINs WLRI WPCs WRS

Health Care Assistants Human Resource Management Improving Access to Psychological Therapies Immigration Advisory Service International Labour Organisation Institute for Public Policy Research Industrial Relations Law Reports London Development Agency Labour Force Survey Lesbian, Gay or Bisexual Local Government Employers Local Government Pay Commission Legal Practice Course Learning and Skills Councils Migrants Rights Network Not in Employment, Education or Training National Employment Rights Authority National Joint council National Vocational Qualification Olympic Delivery Authority Office of Government Commerce Office for National Statistics Points-Based System Regional Development Agencies Seasonal Agricultural Workers Scheme Sex Discrimination Act small and medium-sized employers Self-Organised Groups Statutory Retirement Age The Age and Employment Network Transport for London Trades Union Congress Union of Construction, Allied Trades and Technicians UK Border Agency Union Learning Representatives Union Modernisation Fund Women and Manual Trades Workplace Employee Relations Survey Women’s Independent Networks Working Lives Research Institute Workplace Coordinators Workers Registration Scheme

Introduction HAZEL CONLEY AND TESSA WRIGht

These are exciting, if somewhat challenging, times to edit a book on discrimination at work in the UK. For almost the entire period that this book has been in production so too was the Equality Act 2010. The Equality Act was devised out of the general accord that the existing legislation was no longer fit for the purpose of combating the many forms of discrimination facing people in the UK. Despite this consensus the process of attempting to reform the legislative framework has been something of a roller-coaster with raised expectations that have sometimes failed to materialise in statute. Even now the Equality Act is in place, it is drafted in such a way that only a government with a strong commitment to equality and social justice need implement some of its more ambitious and innovative clauses. In addition to the uncertainty created by the most radical overhaul of the UK equality legislation since its inception, the Act received Royal Assent only weeks before a general election that changed the political context. The outcome of the election also brought relatively uncharted political territory with a coalition government. It is therefore in the midst of legislative and political uncertainty and change that this book was written and we would like to thank the contributors for their patience and understanding of the extended deadlines to accommodate the protracted reading of the Equality Bill followed by the result of the general election. We hope that in deciding to await these two outcomes this volume will be amongst the first to offer analysis of the new landscape of antidiscrimination policy and practice. In its broadest sense the word discrimination simply means to discern difference. However, for most of us, discrimination is a pejorative term because the action often involves attaching value judgements to differences between people that result in inequitable treatment. When this happens in the workplace the result is often heartache and hardship. Discrimination at work is therefore a social justice issue where one remedy is considered to be legal regulation. Whilst the main premise of this book is that the law, on its own, is not sufficient to combat discrimination at work, it is clear from its content that equality and the attempts to reduce discrimination at work are ‘juridified’ and take much of their lead from legal requirements. Having said that, a number of the chapters report on the limitations of the law, both in its conceptualisation and in its application. Other authors utilise ‘business case’ arguments in which the emphasis is on persuading employers that non-discrimination makes good business sense for a variety of reasons.1 The locus of business case arguments favours diversity rather than equality as a conceptual framework. As such, social justice and legal requirements not to discriminate are relegated to the cost–benefit equation implicit in a business case

1 For an excellent analysis and critique see M. Noon (2007) ‘The fatal flaws of diversity and the business case for ethnic minorities’, Work, Employment and Society, 21:4, 773–784.

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analysis (see Dawson, Chapter 6; Colgan and McKearney, Chapter 8; Jolliff, Chapter 9; Guyard-Nedelec, Chapter 16). In its entirety this book argues, from both social justice and business case perspectives, that discrimination at work is an experience that continues to blight the lives of thousands of workers each year despite four decades of equality legislation. However the message is not a negative one. Most of the chapters offer insights about existing positive international and domestic developments and make suggestions for the ways that positive change can be realised – using the law or not. Reflecting these aims, the book is structured in three parts; Part I provides the legal background including a critical analysis of the law as it, until recently, existed, as it currently stands and how it may be developed in the future; Part II provides analyses of discrimination in the workplace in relation to the main strands protected by the legislation; Part III, contains chapters that examine novel and innovative approaches to combating discrimination at work and looks forward to how these may be further developed to contend with inequality. In Chapter 1, Sonia McKay provides the historical background and antecedents of the legislative framework for equality in the UK. McKay examines key legal concepts such as less favourable treatment, direct and indirect discrimination, harassment and victimisation. Her analysis particularly highlights how the limits of Statute law result in complex and often contradictory case law, which in turn results in poor outcomes at employment tribunals for victims of discrimination. McKay also illustrates how cumbersome the anti-discrimination law was and how difficult it had become for employers to interpret and implement. Following on from McKay’s analysis, in Chapter 2, Hazel Conley examines the debates that preceded and accompanied the reform of the anti-discrimination legal framework that resulted firstly in the public sector equality duties, followed by the Equality Act 2010. She outlines some of the key features and innovations contained in the legislation and the arduous process by which they were negotiated. Conley argues that the potential for far-reaching positive change has been tempered by political concerns that legislative measures to curb discrimination have the capacity to be antithetical to business efficiency if not applied sparingly. In so doing she identifies a key contradiction in business case arguments. In Chapter 3, Jackie Jones broadens out the conceptualisation of the anti-discrimination legislation by examining the concept of dignity at work and the argument that the right not to be discriminated against is part of the human rights framework. The focus of this chapter is on workplace harassment as a form of discrimination. Although Jones provides an in-depth legal analysis of this complex variety of discrimination, she also illustrates the human cost of bullying and harassment at work and how this might be facilitated in organisational culture and management styles that demand competitive behaviour and long working hours. The final chapter in Part I, by Grace James, examines legislation that regulates a specific but endemic form of discrimination at work – that which is precipitated by the pregnancy of a worker. In a detailed historical analysis, James shows how protection for pregnant workers was surprisingly marginal to the Sex Discrimination Act (SDA) until relatively recently and following intervention by the Court of Justice (CoJ – was ECJ). James illustrates that the legal requirement for a male comparator, while clearly absurd in the case of pregnancy discrimination, has for years thwarted the ability of pregnant workers to use the SDA as a remedy for discrimination in the workplace. As such, she argues that pregnancy discrimination does not fit easily into the equality model that shapes

Introduction

3

the anti-discrimination legislation. Her conclusion is that advances in reproductive technology mean that the limitations of the existing legislation are likely to become even more pronounced unless there is a re-conceptualisation of how far we, as a society, value parenthood. Building on the critical legal analysis in Part I, the chapters in Part II provide detailed empirical evidence of how discrimination is experienced on the separate grounds covered (and in the case of migrant workers not covered, see Clark, Chapter 11) by equality legislation. Some may see this as an ‘old-fashioned’ approach contrasting with the more recent emphasis on generic ‘equality’ or ‘diversity’, and which is reflected in the move to a merged equality commission and a single Equality Act (2010). However we believe that the arguments and evidence provided in this volume make a compelling case for retaining and targeting the specific forms of inequality or disadvantage faced by different groups, many of which persist despite years of anti-discrimination legislation. We have chosen to group the chapters in this Part to cover gender and sexuality; race, religion and migration; disability and finally age. This is not to say that we do not recognise the differences or overlaps between individual strands, or that understanding intersecting forms of discrimination between these strands is not important. Indeed several chapters address the ways in which multiple forms of discrimination occur, or take a more generic approach to equality (see for example Guyard-Nedelec, Chapter 16; Paraskevopoulou and Beutel, Chapter 18; Moore, Chapter 19) and point out that more subtle measures may be needed to ensure that the needs of these groups are not overlooked. Whilst the chapters in Part I examine the role of the State as legislator, Carole Thornley and Dan Coffey, in Chapter 5, consider the role of the State as employer. The theme of their chapter, equal pay in the public sector, is both topical and controversial. First, they problematise the concept of the State as a ‘model’ employer by drawing attention to the feminised and gender segregated nature of its workforce and the extensive gender pay gap that accompanies this key feature of public employment. Thornley and Coffey also report on recent tensions in local government in relation to equal pay, triggered by legislation, complex collective agreements and compounded by cuts in public spending. However rather than taking a wholly gloomy view of the prospects for equal pay, they argue there exists an ‘unusual potential convergence of interests between employers and unions which offers much to build upon if approached in a spirit of a problem to be resolved’. On this basis they offer an analysis of best practice on equal pay for the future. Analysis of the struggle for pay equality is continued by Patricia Dawson in Chapter 6, this time in the private sector setting of the print industry. Dawson’s case study highlights that although the economic relations in the print industry are clearly different from the public sector, the gendered social relations between female and male workers, their employers and trade unions are remarkably similar. Building on previous analyses of women workers in the print industry (Cockburn 19832) the emphasis is here on the gendered conceptualisations of skill and technology but with the material outcome of pay inequality as its focus. Dawson explains how the power to create and recreate gendered social relations and concepts of skill relies on and is diffused through particular forms of social networks. The power of social networks is a theme carried forward in Chapter 7 by Nicole Avdelidou-Fischer. However, here the argument is about the usefulness of social networks as support mechanisms for women workers. Avdelidou-Fischer studied four women’s 2

Cockburn, C. (1983), Brothers: Male Dominance and Technological Change, London: Pluto Press.

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independent networks (WINs) in Germany and the UK and argues that, for their members, WINs go some way to replacing the networks closed to them both in the workplace, family and wider society. The comparative nature of Avdelidou-Fischer’s research highlights that national culture, politics and welfare regimes also play a large part in shaping equality of opportunity and outcome for women workers, but not always in the direction that one might expect. Chapter 8, by Fiona Colgan and Aidan McKearney moves the discussion away from sex discrimination to discrimination based on sexual orientation. More precisely, their chapter examines examples of good practice in creating inclusivity for lesbian, gay and bisexual (LGB) employees in five private sector organisations, in contrast to most previous research in the area which has focused on the public sector, considered the ‘pioneer’ in sexual orientation equality. Colgan and McKearney identify that, even in ‘good practice’ organisations, LGB employees in the private sector feel that there is an implementation gap between policy and practice. However the focus of this chapter is again largely positive, providing an encouraging analysis of measures that lead to good practice in the experience of LGB employees and which move beyond legal compliance. Tracie Jolliff’s analysis of discrimination faced by black managers in Chapter 9 moves the debate on further. Jolliff includes both a strong theoretical and empirical basis for her arguments that the fabric of any organisation is racialised and claims to racial neutrality are therefore inevitably flawed. She deftly applies her theoretical position to workplace incidents to show how race gives rise to differential and negative treatment for black managers. In doing so, Jolliff produces a powerful critique of the organisational preference for diversity and business case arguments. Her conclusions are, however, positive providing thoughtful and useful pointers for acknowledging and acting upon racialisation in organisations. A collective approach to confronting racism at work is provided by Chapter 10, in which Wilf Sullivan, TUC Race Equalities Officer, introduces a reprinted3 section of a TUC/Working Lives Research Institute publication ‘Working Against Racism. The Role of Trade Unions in Britain’ by Mary Davis, Roger McKenzie and Wilf Sullivan. The section we have chosen to reproduce in this volume examines how trade union policies on racism can help to combat discrimination at work. Similar to Jolliff’s previous chapter, the pamphlet identifies overcoming denial of racism as the first hurdle to tackling it. Interestingly, the authors argue that when race discrimination is taken to an employment tribunal it represents a failure of trade unionism, particularly collective bargaining, to address racism in the workplace. They further argue that, to ensure collective bargaining plays its part, the representation of black workers at all levels should be increased in trade unions. Nick Clark, in Chapter 11, continues the discussion of race discrimination at work, but in the different legal context afforded to migrant workers. Clark provides an analysis of the often contradictory and fast-changing systems in place that face those seeking to come to the UK to work from within and outside the EU. In doing so he points out that the role of the majority of the law in relation to migrant workers is designed to reduce rights and protections rather than provide them. Following on from this Clark shows how a lack of rights inevitably results in discrimination and poorer terms and conditions of work for many migrant workers. He considers the difficulty of establishing rights for 3

Kindly reprinted by permission of the TUC and WLRI.

Introduction

5

migrants whose very existence as workers may be ‘tainted by illegality’. Despite these conceptual difficulties, Clark provides pointers for good practice, but ultimately argues that there needs to be a separation between immigration status and worker rights to prevent discrimination in the workplace. Such an approach also puts the emphasis on enforcing employment rights to the ultimate benefit of all workers, not only migrants. While discrimination based on race and on religion may sometimes overlap, separate legislation on religion and belief was introduced in 2003. In Chapter 12, Martin Mitchell, Chris Creegan and Sarah Dickens provide a detailed analysis of research covering the management of religion and belief in the workplace. Their analysis, which also examines a number of employment tribunal cases on religion and belief discrimination, reveals that the occurrence of discrimination at work on the basis of religion or belief is widespread, with the dominant form being the failure of employers to allow employees to participate in religious observances. Mitchell, Creegan and Dickens also show that poor management often results in employees resorting to the law. However, the way employment tribunals have interpreted the law has allowed employers to ‘objectively justify’ discrimination in relation to religion and belief on business grounds. Based on a ‘deliberative event’ methodology which brought together managers from small, medium and large organisations, the authors identify challenges that may prevent employers from successfully managing religion and belief in the workplace, including the competing and sometimes conflicting needs of different groups of workers. Building on their analysis, Mitchell et al. suggest a range of solutions to how the management of these issues could be improved. The following chapters in Part II focus on the workplace context of disability discrimination. Debbie Foster, in Chapter 13, examines the Disability Discrimination Act (DDA) 1995 as amended and the Disability Equality Duty 2006, providing an analysis of how these two pieces of legislation are incorporated into the Equality Act 2010. Her focus is, however, on an aspect of the legislation that is distinctive and particularly pertinent to counteracting discrimination at work – the requirement for employers to make ‘reasonable adjustments’ that allow workers with disabilities to participate fully in organisational life. Foster argues that a failure by employers to understand their obligations under the legislation often results in a failure to make the reasonable adjustments that workers with disabilities are entitled to. Based on her research on the experiences of workers with impairments, Foster provides good practice guidelines for employers and trade unions. Complementing Foster’s chapter, Alex Tambourides extends the discussion to cover mental health – one of the most prevalent forms of disability amongst workers. In Chapter 14 Tambourides provides a unique account of his experience of addressing mental health issues in the workplace, based on his work in a voluntary sector organisation, the National Association for Mental Health (Mind), which supports those with mental illhealth. He argues that the DDA has been particularly poor at preventing discrimination against workers with mental health disabilities. His analysis of this failure is that the law, on its own, could never be sufficient to prevent the discrimination that is deeply rooted in historical, social and cultural attitudes that pervade mental health. Tambourides provides a tool to help managers open constructive discussions with workers with mental health conditions and pointers for the ways in which organisations can be proactive in planning for adjustments.

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The final three chapters in Part II examine the issue of age discrimination in the workplace, the most recent strand to be covered by legal protection since 2006. In Chapter 15 Andrea Winkelmann-Gleed provides an overview of workforce ageing in Europe and outlines some of the key policy debates it has prompted, notably in relation to the burden on healthcare services, immigration, pensions and retirement ages. Drawing on research in five European countries, Winkelmann-Gleed provides case study analysis of initiatives in different member states to retain older workers, but also to combine a balance between working life and transitions to retirement. In Chapter 16 Alexandrine Guyard-Nedelec provides a detailed analysis of how age discrimination intersects with gender to prevent mature women law students entering the legal profession, even when they achieve high academic performance. Guyard-Nedelec illuminates the ways in which institutional requirements to gain training contracts with employers prevent mature women law graduates from turning their qualifications into careers in the legal profession. She then examines the Employment Equality (Age) Regulations 2006 and, drawing on her own research, argues, in common with a number of other authors in the volume, that denial of age discrimination and ignorance of the Regulations is likely to limit the effectiveness of the legislation in the legal profession. The three chapters included here on age, although primarily focusing on older rather than younger age, reveal the variety of ways in which discrimination may be experienced, both in entry to work and, in Chapter 17, on when to leave it. Matthew Flynn examines a specific aspect of potential age discrimination concerning requests to delay retirement. He begins the chapter by positioning requests to delay retirement within the Employment Equality (Age) Regulations 2006 and the social policy debates that surrounded the introduction of the Regulations. His analysis focuses on the ‘duty to consider’ requests to delay retirement contained in the Regulations. Drawing on primary research data, Flynn examines how public and private sector managers have implemented the Regulations and ‘duty to consider’, reporting on innovative management practices that have allowed workers to delay retirement. His conclusions are mixed, finding that the Regulations have not resulted in the culture change in relation to older workers that the government had hoped for, but that innovative solutions have been adopted by a minority of employers where there is a business incentive to do so. As we noted earlier, this book has been written during times of great legal and political change and uncertainty, making it somewhat challenging to speculate on possible future developments in the field of equality. Yet Part III presents evidence from research that may indicate potential future directions for tackling inequality and disadvantage at work. Anna Paraskevopoulou and Monika Beutel, in Chapter 18, address the discrimination, disadvantage and disengagement (referred to in the chapter as the ‘3Ds’) faced by many groups seeking work. In contrast to the majority of chapters in this book, the focus is on those seeking to enter the labour market, rather than discrimination faced by those already in the workplace. The research described in the chapter analysed over 500 projects in London that aimed to increase the employability of disadvantaged social groups and sought out individuals experiencing multiple disadvantages and discrimination in accessing employment. In concentrating on projects that were supporting those facing multiple forms of disadvantage, this research is in tune with contemporary developments in thinking around inequality in two ways. First, they highlight that discrimination often takes multiple or intersecting forms, and shows that only by understanding these multiple disadvantages can effective measures to address them be deployed. Second, the chapter

Introduction

7

takes a wide definition of disadvantage and covers issues such as ‘postcode discrimination’, low skills, lack of work experience, lack of social networks and participation in the informal economy, all of which are outside the protections offered by the six strands of anti-discrimination law, but which could have been encompassed under provisions in the Equality Act 2010 that required public bodies to address socio-economic disadvantage had the duty been taken up by the coalition government. Although the requirement would not have directly covered employment and offered nothing like the protection of the other strands, it indicated a shift in thinkingthat recognises that social class can be a significant root of disadvantage that needs legal remedies, alongside other forms of discrimination. Trade unions, however, were established to combat class-based inequality, and have at times been slow to see the relevance to their struggle of forms of inequality based on gender, race, disability and so on. However Sian Moore, in Chapter 19, shows us how a new form of union representative, the Equality Representative (ER), may be ideally placed to promote fairness by taking up the issues of discrimination so commonly experienced in the workplace. In this sense, ERs have an important role to play in ensuring that the gap between employer policy and practice – as identified by Colgan and McKearney in Chapter 8, – is minimised. In her evaluation of the Equality Rep project in public services union UNISON, Moore suggests that the ER role may be attracting new forms of activists to the union. However she warns of the risk that the ER role may reinforce trends towards the individual representation of workers at the expense of collective action, unless ERs are sufficiently involved in the union’s collective bargaining activities. Although the Equality Act did not concede statutory rights to time off for ERs, despite union lobbying, it is likely that the role of ERs will be a developing one in many trade unions. As it encompasses a broad definition of equality, ERs can take up many and multiple forms of discrimination. The private sector has, in the UK, been subject to less stringent demands from equality legislation than the public sector, as several chapters show (Conley, Chapter 2; Thornley and Coffey, Chapter 5; Wright, Chapter 21). But Catherine Seierstad, in Chapter 20, offers a glimpse of what can be done to tackle gender inequality in the private sector, by examining the use of gender quotas on company boards in Norway. Seierstad shows how Norway has traditionally been seen as one of the most equal countries in the world for men and women, but that women failed to achieve equality with men on private company boards, in common with many other countries. This led to the introduction of the law in 2004 that requires public limited companies to have 40 per cent of women on their board of directors. The law has resulted in a remarkable improvement in the gender composition of boards, although Seierstad’s analysis draws attention to the phenomenon of the ‘Golden Skirts’ – women on large numbers of different boards. Nonetheless, the chapter provides an innovative example of what can be achieved by effective legal intervention. In the final chapter, Tessa Wright takes as her starting point the persistent gender segregation in the UK workforce which is a major contributor to the gender pay gap. Wright argues, however, that recent government attention to the long-standing gender pay gap had resulted in some measures to attract women into traditionally male occupations, particularly in London. Drawing on research examining the intersections of gender, sexuality and class in the two UK sectors with the lowest proportion of women – transport and construction – the chapter examines some of these initiatives and explores in greater detail one particular strategy, that of linking equality with public procurement. She argues

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that public authorities are increasingly taking equality into account in the tendering process and in the contracts awarded to private contractors for public sector projects or services. Despite some initial legal uncertainty, using equality in procurement has been given momentum by the requirements of the public sector equality duties, and Wright considers whether this is taken further by the Equality Act 2010. Many provisions of the Equality Act 2010 will be implemented gradually (see Conley, Chapter 2) – and some may never be fully enacted, depending on government commitment – but in any case it will be some time before we can see the effects of this wide-ranging overhaul of anti-discrimination provisions on the everyday lives of working people. However, we hope that the contributions in this book provide a timely reminder of the extent and scale of discrimination still facing many workers, as well as some practical guidance and recommendations that can offer pointers to those seeking to challenge workplace discrimination. It is hoped that this Handbook of Discrimination at Work will be of use to a variety of readers. The chapters have been written by authors with a huge combined breadth and depth of experience in understanding workplace discrimination, as academics and researchers, as well as managers, consultants and trade union officials. Much of the research has contributed to policy formation, either through direct commissions or more diffuse means, and most of the authors are concerned to see their work have an impact on improving lives for people at work. We therefore hope that academics, researchers, policymakers, practitioners and students will all find something of value in this book.

Note As already pointed out, this handbook was prepared during a time of change and uncertainty surrounding the legal framework of UK discrimination law, culminating in the passing of the Equality Act 2010 in April 2010. While chapters have been updated to reflect any substantive changes to the legal position in the Equality Act, some chapters refer to the provisions under the previous anti-discrimination Acts, for example the Disability Discrimination Act 1995 (DDA) or the Employment Equality (Sexual Orientation) Regulations 2003. The substance of the law described here has not changed, although these Acts have now been incorporated into the Equality Act 2010, as described in McKay, Chapter 1.

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I

Legal Framework and the Limits of the Law

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chapter

1 A Right Not to be

Discriminated Against: The Origins and Evolution of Discrimination Law SONIA McKAY

Introduction This chapter begins by looking at the origins of UK discrimination laws, noting that earliest legislation, the Equal Pay Act 1970, represented the government’s response to industrial action taken by women workers who were being paid less than male colleagues doing similar work. The chapter then turns to consider how the law developed around concepts of non-discrimination, direct and indirect discrimination, together with the principle of no less favourable treatment. These concepts are explained and the key legal cases are reviewed. The chapter then discusses whether the law has been effective in countering discrimination and notes that the complexity of the law and the difficulties faced by applicants taking cases means that the likelihood of success is very low. The public sector duties not to discriminate, initially introduced into race discrimination legislation and gradually extended to other strands of discrimination, are not covered in this chapter, but are discussed in full elsewhere (see Conley, Chapter 2). Nearly 40 years ago the first piece of legislation aimed at tackling discrimination in employment – the Equal Pay Act 1970 – was introduced in the final days of the Labour government of 1964–1970, as the government’s response to a strike in 1968 of women workers at the Ford Motor Company. The women had demanded equal pay with men working on comparable, but different work, in other sections of the factory. Their strike had been partially successful and had highlighted that pay discrimination was systemic, with employers, and often unions, accepting that women could be paid less. Job segregation – the division of men and women into different types of work – assisted in this discriminatory process; since men and women often did not work alongside one another doing exactly the same jobs. The next two advances in discrimination law were the Sex Discrimination Act 1975 and Race Relations Act 1976. The Acts were introduced at around the same time as European level legislation began to concern itself with issues

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of discrimination, with a directive, on equal pay in 1975 and another on equal treatment in 1976. However, while UK legislation also applied in relation to race discrimination, at European level the law dealt only with sex discrimination. It was not until 2000 that two new directives going beyond this were introduced: Directive 2000/43/EC, which implements the principle of equal treatment between persons irrespective of racial and ethnic origin; and Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age or sexual orientation. From 1976 and for the next 20 years sex and race were the only areas covered by UK discrimination law. However, in the last 15 years, the range of issues covered by discrimination law has grown significantly. The Equality Act 2010 incorporates all of the following laws into one statute. The aim has been to standardise the legislation and to ensure that it reflects the decisions of the courts in a number of key legal rulings interpreting the legislation:

• Equal Pay Act 1970 (as amended): provided a right to equal pay with a comparable worker of the opposite sex;

• Sex Discrimination Act 1975 (as amended): prohibited discrimination on the grounds of sex, gender reassignment, marriage or civil partnership;

• Race Relations Act 1975 (as amended): prohibited discrimination on racial grounds – • • • • •

colour, race, nationality, ethnic or national origins; Disability Discrimination Act 1995 (as amended): prohibited discrimination against disabled persons; Sex Discrimination (Gender Reassignment) Regulations 1999: prohibited discrimination against transsexuals and those in the process of gender reassignment; Employment Equality (Sexual Orientation) Regulations 2003: prohibited discrimination on the grounds of sexual orientation; Employment Equality (Religion or Belief) Regulations 2003: prohibited discrimination on the grounds of an individual’s religion or belief; and Employment Equality (Age) Regulations 2006: prohibited discrimination on the grounds of age.

In addition, there are two other areas of law related to non-discrimination, on parttime workers and on fixed-term (temporary) employees. The relevant legislation is:

• Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 gave a right to no less favourable treatment to part-time workers; and • fixed-term employees (Prevention of Less Favourable Treatment) Regulations 2002: gave a right to no less favourable treatment to temporary employees. There is therefore now a well-established body of law prohibiting discrimination at work and the range of issues covered is extensive. However, discrimination remains a constant feature of workplace experience in the UK (Hepple et al. 2000; Dickens 2007; Fredman and Spencer 2003; Wrench 2007). Women continue to earn around 20 per cent less than men (Ashe,2009); black and minority ethnic workers are more likely to be working in low-paying jobs and are also more likely to be unemployed than are white workers (ippr, 2010); lesbian, gay, bisexual and transgendered workers also experience discrimination and exclusion at work (Wright et al. 2006); disabled workers

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are disproportionately excluded from employment (Gore and Parckar 2010); part-time workers earn less per hour than full-time workers; and temporary workers are the most at risk when it comes to redundancies and cutbacks. The reasons for these continuing discriminatory outcomes are partly because the mere existence of a law cannot of itself guarantee equality, if the mechanisms in place to challenge discrimination are weak and where the structural basis of discrimination is strong. Persistent reported high levels of discriminatory treatment have also been consequent upon the nature of the laws themselves, which are unduly complex, procedurally difficult and have continuingly low success rates. Whilst the Equality Act 2010 may have some impact on this, the problem is more complex than one that can be rectified through consolidating the existing laws. It lies in the definitions of discriminatory treatment and in the inability of the legal and social mechanisms to commit to and to deliver equality. This chapter examines the key principles of the law, exploring the barriers that prevent it from being effective. It refers to a number of landmark court rulings that have shaped discrimination law and then reflects on the consequences of taking cases to tribunals for the individuals concerned, by looking at the data on outcomes and settlements.

The Concepts of Discrimination and Less Favourable Treatment Discrimination law is constructed around the following principles:

• • • •

The right not to be directly or indirectly discriminated against; the right to be treated no less favourably than comparable workers; the right not to be subjected to harassment on discriminatory grounds; the right not to be victimised for having brought a discrimination complaint; and, in the case of disabled workers • an obligation on the employer to consider suitable adjustments. These concepts appear in both the UK legislation and in the EU directives. On the face of it they appear to differentiate between two models – one of the prohibition of direct or indirect discrimination, harassment or victimisation and the other around the concept of ‘no less favourable treatment’. In practice the difference between these two models is not significant. In essence, whether the model is direct/indirect discrimination (sex, race, disability, sexual orientation, religion or belief, age) or less favourable treatment (part-time, fixed-term) the mechanism for taking a discrimination claim is similar. The individual must meet the requirements set out in the legislation and must generally show why the treatment complained of is as a consequence of unlawful discrimination, even if the precise tests, to show direct/indirect discrimination or less favourable treatment, may differ.

Direct Discrimination An employer directly discriminates against a person where that worker is treated less favourably than someone else (of the opposite sex, of a different racial group and so forth).1 An employer indirectly discriminates against a person where conditions are imposed which 1

Now, s.13 of the 2010 Act.

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apply to the workforce generally but which adversely affect one group and which the employer cannot objectively justify.2 Collins et al. (2005) make the point that the ‘dividing line between direct and indirect discrimination is not entirely clear’ but for lawyers the main distinction is that the legislation provides that direct discrimination cannot be justified (save in relation to disability and to age) whereas indirect discrimination can be, whether by reference to the business case, the impact non-discrimination would have on the workforce generally, or other reasons. Under the age discrimination regulations an employer may treat people differently on the grounds of age if it is ‘a proportionate means of achieving a legitimate aim’ which could include business needs and efficiency; health, welfare and safety and for the particular training requirements of the job. In the age regulations there was also a default age of 65 after which an employer could dismiss an individual simply for age reasons although this provision is repealed with effect from October 2011. This had been viewed as a major deficiency in the law, but one that was upheld by the Court of Justice. Less favourable treatment, amounting to direct discrimination, can occur in a number of ways, including asking only women about their caring responsibilities; questioning only workers believed to be gay about their sexuality, failing to apply a procedure to a minority ethnic worker, when the procedure would have been applied to a worker of a different ethnicity. Cases of direct discrimination are less likely now to be taken to the tribunals than are cases of indirect discrimination. That is not to say that such cases never occur, but rather that employers are generally aware of the existence of discrimination laws and that they have a duty not to treat workers differently on account of their ethnicity, gender, sexuality, disability, age or religion. An example of a direct discrimination case that was argued in the courts is the landmark case of Shamoon v Chief Constable of the RUC [2003] IRLR 285. Ms Shamoon had some of her duties removed from her post specifically because she was a woman and the duties, which included being armed, were considered unsuited to her gender. Even though she had experienced no loss in pay or grading she took a sex discrimination claim against her employer. The House of Lords (hereinafter referred to as the Supreme Court, the UK’s highest appeal court) held that the employer’s actions, in removing the duties in question did amount to direct discrimination. Another example of direct discrimination is in the case of James v Eastleigh Borough Council [1990] 2 AC 751 (HL), again a case that went to the Supreme Court. Mr James, who was over the age of 60 at the time but was not yet 65, had been charged to use his local swimming pool while his wife, who was the same age as him, was not. The existing rule was that free entry was only obtained after the person had passed state pension age, but since pension ages differ for men and women it meant that women were entitled to the benefit of free entry five years earlier than men. Mr James argued that the council had directly discriminated against him as a man and the Supreme Court agreed. James’ case led to service providers having to amend their rules where they offered age-related benefits. James took the case before the age discrimination laws came into force, and so had to argue the claim on the basis of sex discrimination law. A similar case today might also be argued using age discrimination law. Direct discrimination does not depend on the employer’s intention or motivation. The fact that, as a result of an employer’s actions, an individual is directly discriminated against, makes it irrelevant whether the employer intended the discrimination to occur or even discriminated for benevolent reasons (such as not giving a worker the chance to 2

Now, s.19 of the 2010 Act.

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carry out their full range of duties to keep them out of danger – the Shamoon case), if that action is applied in a discriminatory manner in areas protected by the law. For the case to be successful the worker has to show that a comparable worker (of the opposite sex/race and so on) would be or has been treated differently. The test is usually referred to as the ‘but for’ test, when the tribunal will ask the question whether, but for the fact that the individual was female/of a particular ethnicity and so on, the discrimination would have occurred. The law does not therefore attempt to enforce specific standards of behaviour on employers. There is no general obligation to act fairly or to treat all workers well. It is only in comparison with the treatment of other workers in the opposite category that a claim can be brought. If an employer decides to treat all workers badly, for example by stopping workers taking their holidays, a claim cannot be taken under discrimination law. Nor does the treatment have to be identical as long as it is comparable. For example, if there is an employer rule which imposes a dress code on only one sex, this would amount to sex discrimination. However, if dress codes were imposed on both sexes, even if the dress requirements differ (by sex/race and so on), these would not amount to discriminatory treatment (see: Schmidt v Austicks Bookshops [1978] ICR 85 (EAT)). Once the worker has shown that there has been discrimination, the burden of proving that this has not occurred shifts to the employer (see below: ‘Proving Discrimination’).

Indirect Discrimination Indirect discrimination is intended to tackle cases where employers have seemingly neutral rules, which apply generally but which in practice disadvantage groups of people defined by sex, race, religion, sexual orientation, disability3 or age. The law refers to the employer having a ‘provision, criteria or practice’ which is generally applied but which disadvantages a member or members of a protected group. Indirect discrimination involves the application of a criterion or practice that is shown to:

• Put members of the protected group at a particular disadvantage; • that is not justifiable; and • that is to their detriment. Thus the test is first to see whether a rule that the employer has applied is particularly disadvantageous to members of the protected group. Disadvantageous rules might include: requiring workers to do certain shifts which it is more difficult for those with caring responsibilities (predominantly women) to do; language tests which disadvantage ethnic minority workers; or requiring specific levels of agility, which disadvantage disabled workers. If such rules are applied the courts investigate whether the employer is able to justify the rule, even though it is discriminatory, for example, by showing a clear business need for the rule which could not be otherwise accommodated and which is a proportionate means of achieving a legitimate aim. In essence the court must try to weigh up the discrimination suffered by the employee against the employer’s reasonable needs. It is up to the employer to provide sufficient justification (see below: ‘Proving Discrimination’). 3

Disability is included within the area of indirect discrimination under the Equality Act 2010.

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Thus the difference between direct and indirect discrimination is that in the case of the latter the employer can defend the claim by citing reasons that justify the indirect discrimination, which the tribunals will take into account in deciding whether or not the discrimination claim is upheld. The courts will thus examine the rule and determine whether it is justified. The landmark case here is London Underground v Edwards (No. 2) [1997] IRLR 157 (EAT). In this case London Underground had imposed a requirement on its entire train staff that they had to work shifts. Ms Edwards was a single parent and was not able to work the new shift system due to her caring responsibilities. The EAT noted that the employer did have a rule obliging all workers to work shifts. It then noted that for women like Edwards, with caring responsibilities, shift working was much more problematic. It then went on to hold that the requirement for shift working did indirectly discriminate against Edwards and that the employer had not provided an acceptable justification, as other ways could have been found to cover the shifts. However, the fact that the courts are left to interpret whether employer rules or actions are justified or not means that there is both uncertainty in how the law is applied and also it results in discriminatory impacts being condoned. The key case is Hampson v Department of Education and Science [1989] ICR 179 (CA). Ms Hampson, a Hong Kong Chinese teacher who had qualified in Hong Kong applied for teacher recognition in the UK. She was told that her teaching qualification was not comparable to the UK qualification. Hampton claimed that the rules for qualification disadvantaged her on the grounds of her race. The Court of Appeal rejected her claim on the ground that the rule, although having a discriminatory impact, was justified by the objective of maintaining standards. Commenting on the impact of the Hampson and other rulings on justification, Connolly (2001) argues that the justification test ‘upsets the theory of indirect discrimination by sanctioning a certain amount of discrimination and blurring its causes. It also weakens the attack on business inefficiencies that benefits all’. Another failing of the law on indirect discrimination had been that, until the introduction of the Equality Act 2010, the concept did not apply in disability discrimination cases. Individuals who claimed that they had been discriminated against on the grounds of disability could only claim if they had been directly discriminated against (see below). The Equality Act 2010 includes the right to claim indirect discrimination in disability discrimination cases.

Less Favourable Treatment A central feature of discrimination law is the focus on a concept of ‘no less favourable treatment’. This means that the treatment complained of has to be compared to that experienced by members of the comparator group. In the case of women, it is male workers. In the case of disabled it is the non-disabled. In the case of homosexuals it is non-homosexuals, and so forth. The comparable worker can be actual or, where there is no actual comparable employee, it can be hypothetical, in other words it is possible to take a discrimination claim on the basis of how an employer would have treated someone of the comparator group. In equal pay claims, however, there is no provision for a hypothetical comparator. The comparable employee has to be someone of the opposite sex who is in employment and who is also paid more. It is, however, left to the individual making the claim to choose who the comparator should be. It does not matter whether, for example, there

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are also individuals of the opposite sex being paid the same as the individual making the claim, as long as she can show that there is one or more comparator who is paid more. The comparator must be employed in the same workplace or, if at a different workplace, under the same terms and conditions. The aim is to avoid individuals being able to compare their pay with that of workers with different employers, as the law does not have the aim of generally improving the rates of pay of the disadvantaged group. If an employer pays everyone a low rate of pay or, for example, only employs women and pays them a low rate of pay, they cannot point to another employer who is paying more to workers of the opposite sex doing similar work. In equal pay claims only there are also two types of comparison. The first is with individuals doing the same or similar work. The second is with individuals doing different work, but where its value is equal, with value usually being determined through some form of job evaluation exercise.

Unlawful Harassment It is unlawful to subject a worker to harassment on discriminatory grounds. In most harassment cases the worker will be complaining about a sustained record of harassment but the courts have also held that a single incident of harassment can amount to unlawful discrimination, depending on its seriousness and the impact it has had on the worker who was harassed. The key case is Strathclyde Regional Council v Porcelli [1986] ICR 564. Ms Porcelli had been subjected to sustained sexual harassment of a physical and verbal nature and claimed that she had been discriminated against on the grounds of her sex. The Court of Session held that the treatment she had received amounted to sex discrimination since a male employee would not have been subjected to the same form of sexual harassment. While the protection from harassment is an important right, the way that the courts have applied the law has meant that it is not in every case that the outcome is favourable to individuals, as in the Porcelli case, particularly where the courts decide that the harassment is not specific to gender (or on any other discrimination ground), but that it just denotes general harassment not protected by discrimination law. This point comes out clearly in the case of Pearce v The Governing Body of Mayfield Secondary School [2003] ICR 937. Ms Pearce was a teacher and was also out as a lesbian and as a consequence pupils at the school subjected her to verbal abuse. Pearce claimed that she had been subjected to harassment on the grounds of her sex4 but the court disagreed that the discrimination against her was sex-based, using the argument that a gay male teacher would have been subjected to the same abuse. The court’s position was that since male teachers would have been equally badly treated by the school’s pupils, there was no sex discrimination.

Unlawful Victimisation The law gives specific protection to individuals who take discrimination claims as it is recognised that if this were not the case, employers would be free to victimise workers 4 The case was taken prior to the regulations on sexual orientation coming into force meaning that Pearce could only take a claim using sex discrimination laws..

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because they had challenged discriminatory practices. A recent case on victimisation is the case of St Helens MBC v Derbyshire and others [2007] UKHL 16. This was an equal pay case in which the employer, in an attempt to get women to withdraw existing equal pay claims that had already been submitted to a tribunal, wrote to all council staff pointing out that a successful equal pay claim would jeopardise future pay improvements since the employer would not have the money to pay the women and to pay all workers a reasonable annual increase. The Court of Appeal held that the writing of the letter amounted to victimisation. Another key case is that of Nagarajan v London Regional Transport [2000] AC 501. Mr Nagarajan had previously taken a claim of race discrimination. He subsequently applied for a promotion and was unsuccessful and claimed that he had been victimised because of his earlier claim. He succeeded, since the Supreme Court ruled that he was not required to show that the interview panel had consciously discriminated against him. It was enough that there had been unconscious discrimination, on the basis of their existing knowledge of his earlier claim. However, while the law is clear that victimisation is unlawful, again the interpretation that is applied by the courts means that it can also exclude individuals from its protection in some situations. In the key case of Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065 (HL), Mr Khan, a police officer, had asked for a reference, which was refused because at the time Khan was pursuing a race discrimination claim over nonpromotion. The Supreme Court ruled that the refusal did not amount to victimisation as it had occurred, not because Khan had taken a claim, but because that claim was still in progress. The mere fact that his case was still in progress was sufficient to deny him the right to protection from victimisation.

Disabled Workers The law on disability discrimination, while containing many of the same concepts as other discrimination laws, such as the issue of less favourable treatment and the provisions on victimisation and harassment, has differed in a number of respects from the treatment of other forms of discrimination. First, as already noted, prior to the Equality Act 2010 only direct discrimination was covered, and this had led to a ruling by the Supreme Court in 2008 (London Borough of Lewisham v Malcom [2008] HLUK 43) which had meant that disabled people had to compare their treatment with that of nondisabled people, without taking account of the disability itself. In the Malcom case this meant that a local authority was not discriminating when evicting a tenant who had sub-let his accommodation in breach of the tenancy agreement, given that the same rule would have been applied to a non-disabled person. The fact that it was the disability that had made him susceptible to distortions in thinking and had led him to sub-let, in breach of the tenancy agreement, was not relevant, according to the court. Furthermore an employer can directly discriminate against a disabled worker if the discrimination can be justified. This justification test was changed with the introduction of s.19 of the Equality Act 2010 (on indirect discrimination) and s.15 specifically on discrimination arising from disability. S.15 does not require a comparator. However, the test of objective justification does apply and there is additionally a defence of the employer not reasonably being expected to know that the employee had a disability. The way that the law operated, prior to the 2010 Act, meant that there were situations where disabled workers were treated less

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favourably without the right to protection under the Disability Discrimination Act 1995 (as amended) because the employer provided justification for the treatment. A disability can be physical and some forms of mental ill health are also covered but is defined in relation to the existence of medical evidence (for fuller discussion of mental health at work see Tambourides, Chapter 14). Addictive illnesses connected with alcohol and drug additions are not, however, covered. This leaves many workers with addictions that affect their ability to work outside the protection of the legislation. The less favourable treatment has to be in comparison to non-disabled workers. However, there is a concept of ‘associative discrimination’, where an individual may be held to have been discriminated against for reasons associated with disability, even though the individual her/himself is not disabled. This ruling is in the landmark case at the Court of Justice (Coleman v Attridge Law [2008] IRLR 722) when it was held that discrimination against a worker who required more flexible work arrangements, due to her caring obligations for a disabled child, and was refused them, had been subjected to discrimination on the grounds of disability. Section 13 of the Equality Act, which protects against direct discrimination, ‘because of’ a disability, intended to extend the protection from discrimination in line with the Coleman decision, which held that that parent of a disabled child could claim disability protection, when discriminated against for undertaking caring responsibilities to her child. A second important difference is that the law places a greater burden of proof on the worker to show that they are disabled. There are a number of tests that must be met. First, the disability must amount to an impairment, which is long-term and second, which inhibits the individual from carrying out normal day-to-day activities. The latter represents an unusual element in the construction of disability law since the normal day-to-day activities are generally activities exclusive of those connected solely with the individual’s employment. Thus, for example, if the job requires that the individual lift heavy weights, which their disability prevents them from doing, but these are beyond what an individual in normal day-to-day activities would lift, they cannot claim under disability discrimination law. Similarly if an individual’s disability restricts some other activity that is not defined as ‘normal’ and ‘day-to-day’ it does not come within the definition. The third important concept in disability law is the duty (on the employer) to make adjustments that might enable the disabled worker to continue in employment (see Foster, Chapter 13, for further discussion). The tribunals will look at whether the adjustment would actually remove the disadvantage faced by the employee and whether it is reasonable. This can be said to represent one of the major weaknesses in the legislation in that it puts the obligation on the employee (not on the employer) to identify the broad nature of the adjustment required and this is often difficult for employees since they are unlikely to have access to the kind of expert knowledge necessary to identify what kind of adjustments could be made. Furthermore, the fact that the requirement is constrained by the concept of what is reasonable means that employers can avoid the obligation to make adjustments where they can argue that the costs would be disproportionate or the adjustment would be unduly disruptive. The landmark case in relation to the duty to make adjustments is the Supreme Court decision in Archibald v Fife Council [2004] IRLR 651, which held that the employer should consider whether there are adjustments whose effect would be to no longer place the disabled person at a substantial disadvantage, while there is no requirement to treat a disabled person more favourably.

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Proving Discrimination In discrimination claims the rule is that the person making the claim has to establish that there has been less favourable treatment from which inferences can be drawn that the less favourable treatment is on the grounds protected by the Equality Act 2010. It is then that the burden of proof shifts to the employer, who must establish the reason for the treatment and this cannot be merely that there was no intention to discriminate, if the consequence is that discrimination has taken place. This provision for shifting the burden of proof onto the employer was an important advance in discrimination law, as it placed responsibility on the employer to prove that what had been done was not based on discriminatory treatment. Prior to the introduction of the Equality Act 2010 the provisions regarding the shift in the burden of proof did not apply in victimisation cases, which meant that there was a considerable weakness in the law. In cases of indirect discrimination where this is being justified by factors that include an economic argument, the employer must at least set out the basic economic analysis of the business and its needs and objectively justify the decision. Despite this positive aspect of the legislation, discrimination claims remain among the most difficult to win in the employment tribunals. The tribunals, while finding cases concerning redundancy or non-payment of wages relatively straightforward to deal with, seem to continue to struggle when dealing with concepts of discrimination. In part this reflects both their history and also their composition, since their membership remains overwhelmingly white and male. In the last year for which the statistics are available (2007–2008) just 489 sex discrimination cases were successful at tribunals, while 3,100 were settled through Advisory, Conciliation and Arbitration Service (Acas) conciliation procedures, out of 26,907 initially submitted. In race discrimination cases, out of 4,130 initial claims, just 121 succeeded at the tribunals and another 1,295 were Acas-conciliated settlements The low level of success following submission of a tribunal application is demonstrated by taking the successful and conciliated cases together in the two principal discrimination jurisdictions, where they amount to just 16 per cent of applicants. There are similarly low numbers for the other jurisdictions as the Table 1.1 shows.

Table 1.1

Outcome of tribunal claims, 2007–2008

Jurisdiction

No. applications

No. successful at tribunals

Sex Race Disability Religion/belief Sexual orientation Age Equal pay

26,907 4,130 5,833 709 582 2,949 62,706

489 121 178 14 29 56 678

% of all submitted claims successful at tribunal 0.01 0.03 0.03 0.02 0.05 0.02 0.01

Median/Ave award £5,200/£11,263 £8,120/£14,566 £8,363/£19,523 N/A/£3,203 £2,103/£7,579 £1,526/£3,334 N/A

Source: Employment tribunal and EAT statistics 2007–2008.5 5 http://www.employmenttribunals.gov.uk/Documents/Publications/EmploymentTribunal_and_EAT_Statistics_v9.pdf

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Not only are the chances of winning a claim very slight, but the compensation which successful applicants receive is low, as the table shows. While a few high profile compensation claims hit the media headlines, the reality is that, even where an individual succeeds at a tribunal, the likelihood is that the amount awarded will be well under £20,000. These continuing low levels of compensation (despite the fact that the law states that there is no maximum amount that can be awarded) mean that employers who do discriminate are unlikely to face significant financial penalties.

Time Limits Most employment law rights are enforceable only within a specific time period from the treatment/event having occurred. This also applies in discrimination claims which, in general, must be submitted within three months of the discriminatory action having occurred, save in equal pay claims, where the time limit is six months. The fact that there is a time limit can be problematic for some claims, as the individual either needs to have submitted the tribunal claim within the three months or to have shown that the discrimination is ‘continuing’, in other words, while the discriminatory action occurred at a specific point in time, its detrimental consequences continue to be felt. This is often difficult to establish.

Procedures for Claiming Discrimination Discrimination claims are submitted to employment tribunals, generally consisting of two lay representatives and one legally qualified chair, who decide on the claim. The tribunals were originally intended as a relatively informal method of pursuing claims but over the years have become increasingly legalistic, with the parties now more likely to appoint lawyers to present their argument. As a result the legislation itself has become more complex, with legal precedents continuously emerging as the cases are taken through the higher courts. An unusual element in discrimination claims is the right of the individual who is considering taking a claim to require of the employer that he/she complete a questionnaire seeking information on the background to the potential claim. If the employer refuses to complete the questionnaire, the tribunal may draw inferences of discrimination. The questionnaire is a useful tool for employees who believe that they have been discriminated against but who lack the necessary evidence. They can use this process to put questions to the employer that will assist them in assessing whether or not they have a claim. Importantly, tribunals will take account not only of what the employer puts in the questionnaire, but can also draw inferences of discrimination if the employer refuses to give the answers requested.

Conclusion: Revising Discrimination Laws The failure of the law to tackle discrimination in the workplace and the continuing evidence of discriminatory treatment and outcomes have led to demands for changes to the law. The government’s response was to introduce the Equality Act 2010 to replace the existing discrimination laws. The arguments in favour are that this will simplify the law,

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as the tests will apply to all forms of discrimination. However, the principal reasons why discrimination cases remain so difficult to succeed in require more fundamental changes that the Equality Act does not address. The following chapter by Hazel Conley discusses recent developments in discrimination law, including the changes introduced by the Equality Act 2010.

References ASHE (2009) Annual Survey of Hours and Earnings, Office for National Statistics (ONS), available at http://www.statistics.gov.uk/statbase/product.asp?vlnk=13101 [accessed 28 January 2011]. Collins, H., Ewing, K. and McColgan, A. (2005) Labour Law Texts and Materials, 2nd ed. Oxford: Hart Publishing . Connolly, M. (2001) ‘Discrimination law: justification, alternative measures and defences based on sex’, Industrial Law Journal, vol. 30, 311–318. Dickens, L. (2007) ‘The road is long – thirty years of equality legislation in Britain’, British Journal of Industrial Relations, vol. 45, no. 3, 463–494, September 2007. Fredman, S. and Spencer, S. (2003) Age as an Equality Issue – Legal and Policy Perspectives. Oxford: Hart Publishing. Hepple, R., Coussey, M. and Choudhury, T. (2000) Equality – A New Framework. Oxford: Hart Publishing. Ippr (2010) Recession Leaves Almost Half Young Black People Unemployed. London: Institute for Public Policy Research., Gore, E. and Parckar, G. (2010) Disability and the Downturn. London: Leonard Cheshire Disability. Wrench, J. (2007) Diversity Management and Discrimination – Immigrants and Ethnic Minorities in the EU. Aldershot: Ashgate Publishing. Wright, T. ,Colgan, F., Creegan, C. and McKearney, A. (2006) ‘Lesbian, gay and bisexual workers: equality, diversity and inclusion in the workplace’, Equal Opportunities International, vol. 25, no. 6, 465–470.

chapter

2 The Road to Equality:

Legislating for Change?

HAZEL CONLEY

Introduction This chapter charts attempts to reform UK equality legislation since 1997. After a brief review of the academic and policy debates that called for change, the focus of the paper is on the public sector equality duties – recent legislation, beginning with the Race Equality Duty (RED) 2001, which began to broaden the conceptualisation of equality legislation in the UK. The chapter analyses the opportunities presented by new legislation and how far these opportunities have been pursued in subsequent legislation and in the single Equality Bill/Equality Act 2010. Unfortunately the conclusions are not altogether positive. They highlight that the conflicts of interest between achieving real equality of outcome and the burdens this is perceived to result in for employers that have led to historically compromised equality legislation continue to impede positive change. The anti-discrimination regulatory framework began to take shape in the UK in the early 1970s with the passing of the Equal Pay Act, the Sex Discrimination Act and the Race Relations Act. Comparable disability legislation did not follow until much later with the Disability Discrimination Act 1995 with legislation on Sexual Orientation (2003), Religion (2003) and Age (2006) following the European Directives on Equal Treatment. Dickens (2007: 468) notes that, throughout its history, the development of equality legislation has been subject to a tug of war between fairness and efficiency, meaning that it has been introduced in very limited ways in the belief that restraint was required to cushion employers, as far as possible, from potential adverse business impacts of not discriminating. Apart from standing in contradiction to public policy that claimed a ‘business case’ for equality, the problem with this approach is that the legislation, as introduced, was in many cases not fit for purpose and, as well as having minimal impact on efficiency, did little to tackle the multiple problems of discrimination (see McKay, Chapter 1). The result is that most of the anti-discrimination legislation has at some stage required amendments, resulting in ‘116 different acts of Parliament, regulations, codes of practice and guidance’ (EHRC, Undated). Together this represents a body of law that Hepple et al. (2000: 5) argue is ‘widely criticised for being outdated, fragmented, inconsistent, inadequate, and at times incomprehensible’. Calls for a review of the anti-discrimination legislation began to gain momentum following the change of government in 1997. Academics, both from the Laws

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(Hepple et al. 2000) and Industrial Relations (Dickens 1997, 2007) disciplines have lobbied for radical change as have the leading equality bodies. In an insightful paper Dickens (1997: 285) argued: The current legislative approach in Britain centres on a predominantly private, individualised model of sex and race discriminations law concerned with formal equality (equality of treatment rather than outcomes). The main requirement is to desist from doing negative things, there is no legal requirement to do anything to promote equality….

The Hepple et al. (2000) report called for a review of all of the equality legislation and provides 53 detailed recommendations about how change could be achieved. The leading claim of Hepple et al. (2000: xiii) is that ‘the present framework places too much emphasis on state regulation and too little on the responsibility of organisations and individuals to generate change’. Their recommendations for change include the public sector taking a lead via the introduction of positive duties to promote equality and for a process of negotiated change within organisations ‘… to allow the employer time to absorb the costs of implementation…’ (ibid.: xv). Recommendation 24 calls for a single public sector equality duty to cover race, gender, disability, age, sexual orientation, religion and for persons with dependants.

Positive Duties – A New Direction Not all of the recommendations of Hepple et al. (ibid.) were introduced, but the Stephen Lawrence inquiry, which uncovered serious institutionalised race discrimination in the Metropolitan Police Force, added impetus for the recommendations concerning public sector equality duties to be adopted. Reflecting the seriousness of the Stephen Lawrence Inquiry, the first of these duties, the Race Equality Duty (RED), was introduced in 2001 under the Race Relations (amendment) Act 2000. The second duty to be introduced was the Disability Equality Duty (DED) in December 2006 as part of the Disability Discrimination Act 2005 and the final duty, the Gender Equality Duty (GED), came into force in April 2007 as part of the Equality Act 2006. The most important point to note about the public sector equality duties is that they are unlike any previous equality legislation in that they do not provide additional rights for individuals but rather place responsibilities on public authorities.1 In this respect they are considered to be a positive, proactive approach to equality which does not depend on discrimination having already taken place, thereby offering an additional and different approach to employment tribunals and their associated difficulties for claimants (see McKay, Chapter 1). A second important factor is that the duties require authorities to have ‘due regard’ in all of their public functions to eliminate unlawful discrimination and harassment and to promote equality of opportunity. In practice this approach is designed to ensure the mainstreaming of equality issues and to counter the past criticisms that equal opportunities were confined to specialist management functions and were not ‘owned’ by operational areas of public authorities (for example, Jewson and Mason 1986; Rees 2005). Another distinguishing 1 There is a complex schedule for each duty of which authorities the respective duties apply. The duties also cover voluntary or private sector organisations who undertake contracted out public functions.

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factor is that the duties cover public authorities both as employers and as service providers. All of the duties adopt a similar format with a set of substantive ‘general duties’ placed on public authorities to eliminate unlawful discrimination and harassment and to promote equality of opportunity. The RED also places a general duty on authorities to promote good relations between people of different racial groups. The general duties in relation to DED include a duty to promote positive attitudes towards people with disabilities, encourage participation in public life and to take into account reasonable adjustments even where this may mean treating people with disabilities more favourably. The general duties in the GED apply to women, men and transgendered people. Each equality duty also contains a set of more ‘specific duties’ which are procedural requirements in relation to the disadvantaged groups covered in each of the pieces of legislation. The specific duties for the GED include a responsibility to consider objectives to address the causes of the gender pay gap and to consult stakeholders, including trade unions, to determine gender equality objectives. As with any law, the equality duties are only useful if they are also enforceable. Given the conceptually different structure of the duties from previous antidiscrimination legislation, enforcement mechanisms have had to take a different format. The enforcement power for all of the equality duties now lies with the EHRC, created in 2007. If the EHRC deems that a public authority has failed to meet its responsibilities under any of the duties it can first issue a compliance notice, giving the authority 28 days to show how it has changed its practice to fall within the terms of the duties. A compliance notice applies to both general and specific duties. If the public authority does not act upon the compliance notice the EHRC can apply to the courts for a court order. If the public authority still does not meet its responsibilities the court may find it in contempt of court. A second method, involving an application to the High Court for judicial review, is also available to the EHRC and other interested parties to challenge the practice of an authority that is not considered to be meeting its responsibilities under the duties. These enforcement mechanisms have not yet been fully put to the test by the EHRC, which in itself offers some cause for concern. The equality duties offer an innovative approach to equality legislation but they have not been without problems. As Fredman (2001) notes, the success of the positive duties still hangs on convincing employers and managers of the importance and value of equality. Early assessment of the first positive equality duty on race found that engagement with the legislation was variable, particularly in relation to progress on employment-related issues (Equal Opportunities Review, 2002). The Audit Commission (2004) has similarly found an implementation gap between policy and outcomes. Current operational concerns focus on the need to streamline this legislation, and for further integration within the policy process. Some of the weaknesses of the RED have been addressed in the later duties, particularly in relation to a greater emphasis on participation of stakeholders and outcomes rather than achieving paperbased procedures.

The Equality Act 2010 – All Change? Despite their weaknesses, the public sector equality duties marked the first radical change to anti-discrimination legislation in over 40 years and Fredman (2001: 146) argues that they represent the ‘direction of the future.’ Most importantly, the duties have signalled that a different approach to tackling discrimination is not only necessary but possible.

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Perhaps the greatest hope for further and widespread legislative improvements for equality at work has been pinned on a single Equality Act (Dickens 2007). The 2005 Labour Party Manifesto, albeit on the last page, contained plans to formalise significant changes to the equality legislation. The pledge included the drafting of a single Equality Act to ‘simplify’ and ‘modernise’ 40 years of complex equality legislation, during the 2005–2010 Parliament. The Discrimination Law Review was established in 2005 to oversee the consultation process and the Equalities Review was commissioned by the government to provide an independent assessment. The Equalities Review (2007) recommended adoption of a single positive equalities duty, and more integrated implementation strategies across equalities areas. The Green Paper putting forward proposals for a single Equality Act was released for consultation in June 2007 (Discrimination Law Review, 2007). The consultation document is 187 pages in length. The longest section, Chapter 5, is dedicated to proposals to amend the public sector equality duties. Although a great deal of work and resources were allocated to the project, there were mixed feelings about its content. There are conceptual difficulties in moving from legal and institutional structures originally designed to address separate equality strands towards an approach that can challenge not only one dimensional disadvantage, but also be applied to multiple forms and intersections of discrimination. The method adopted has been largely one of integration (Durbin and Conley 2010). The first phase of integration included the merger of the three existing equality bodies2 in 2007 to create the Equalities and Human Rights Commission. The creation of the new equality body has been marred by the usual problems and power struggles associated with merger (Peacock 2009). Second, the main proposal in relation to the equality duties was to combine them into a single equality duty and to extend its coverage to other protected areas (age, sexual orientation, religion and belief, gender re-assignment, pregnancy and maternity). The move to simplify and extend equality legislation is widely supported by public service organisations that are required to implement piecemeal equality legislation through separate strategies. The Green Paper states that a significant number of public authorities have already introduced integrated equalities frameworks (p. 85 para. 5.22). However research has identified that integrated frameworks have been difficult to put into practice. Page and Conley (2009) found that, whilst the complexity of managing six rather than three separate equality strands within equality duty processes is the driver for local authorities to develop integrated frameworks, in practice some equality officers feared that, once integrated, the interests of some strands might dominate and others, particularly gender, would be subsumed. Another concern was that the Green Paper was silent in relation to some important principles established in the existing public sector equality duties, such as involvement of stakeholders, the requirement to set equality objectives; the requirement for impact assessments and the duty to consult with trade unions. The uncertainty in relation to the status of impact assessments was a particular concern. The separate equality duties require public authorities to conduct equality impact assessments (EIAs) on their policies and practices to cover all of the proposed and current activities of the authority to ensure that people from the protected strands are not disadvantaged. Where an authority identifies a potential impact, it should give due regard to modify the policy or practice (EOC 2006). Impact assessments are a tool that essentially requires authorities to mainstream equality into all decision-making processes. 2 Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC).

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They have been particularly useful for equality officers in local government to encourage mainstreaming and to challenge poor practice or indifference (Page and Conley 2009). Although two years in the making, the Green Paper produced by the DLR was met by disappointment at its lack of ambition and vision for dealing with multiple forms of discrimination. The consultation process that accompanied the Green Paper revealed a great deal of disappointment with the proposals from key bodies concerned with equality. The following extracts have been taken from responses to the Green Paper:3 The Commission regrets ... that the proposed scope of a new Equality Act, as reflected in the Green Paper, falls far short of ministers’ stated ambitions when the DLR was established and the expectations they had created for new legislation which is coherent, simple and derived from fundamental principles. (Equality and Human Rights Commission undated) ... the Government’s commitment to review and simplify the law into a single Equality Act is extremely welcome. However, we are concerned that in some places the consultation’s proposals would weaken existing provisions, that in some parts of the document the intention is unclear, and that in some parts there is a clear case for going further than is proposed. (EDF undated) The Commission knows that if the current duties are replaced with a limited obligation to take action only towards certain equality priorities then a swath of important public services and law enforcement will proceed without any legal regard to race equality, or indeed when race intersects with gender or disability issues. This consequence is clearly regressive and is unacceptable. We don’t agree with the Government’s proposal to restrict the legal obligation to only a limited set of priority equality objectives. (Commission for Racial Equality 2007) The DLR seems to suggest that the current duties should be narrowed by requiring public bodies to identify priority objectives and take proportionate action towards them instead of the current requirement on public bodies to have ‘due regard’ to promote equality. We believe that it would be a backward step to narrow the requirements on public bodies. (Thompsons Solicitors 2007)

Criticism of the Green Paper obviously elicited some concern on behalf of the Government as the single Equality Act, due to be announced in the Queen’s Speech in November 2007, was withdrawn until 2008. In the meantime there was a change of government leadership and responsibility for the Equality Bill passed from Ruth Kelly to Harriet Harman. The White Paper eventually had its first reading on 24 April 2009 and the second on 11 May 2009. There were some improvements following the disappointment of the Green Paper and some further innovative, and controversial, inclusions. Perhaps the most controversial addition was the extension to permitted positive action in the recruitment and selection of employees. This clause: ... permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are equally qualified, and the clause does not allow employers to have a policy of automatically treating people who share a protected characteristic more favourably than those who do not.4 3 All responses to the Green paper consultation can be found at: http://www.equalities.gov.uk/equality_bill/consultation_ responses/organisations_which_responded.aspx?idx=301&idxltr=C&menupage=292 [accessed 25 January 2011] 4

Part 11, Chapter 2, Clause 153.

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This addition to the Bill was controversial because it moved away from the liberal, symmetrical or sameness approach to equality that has underpinned previous legislation. Equality legislation thus far had grasped tightly the principle that protected characteristics could not be considered either positively or negatively in selection decisions of employers. Only positive action to encourage under-represented groups to apply for posts was permissible. The extension of positive action to selection does allow employers under very limited circumstances and on a purely voluntary basis to move away from this principle. The Bill also included a dimension of equality that goes beyond the concept of protected characteristics by introducing a separate duty on public sector authorities, the so-called socio-economic duty, which requires public authorities: ... when making strategic decisions such as deciding priorities and setting objectives, to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage. Such inequalities could include inequalities in education, health, housing, crime rates, or other matters associated with socio-economic disadvantage. It will be for public authorities subject to the duty to determine which socio-economic inequalities they are in a position to influence.5

It is important to note that the socio-economic duty does not introduce another protected characteristic. There is no intention that people can be protected against discrimination on the basis of their social class, but rather that socio-economic disadvantage is related to the six established strands of discrimination. Therefore, in considering socio-economic disadvantage when making decisions on policies or service provision, public authorities can reduce potential negative impacts. Despite these innovative inclusions, the details of the development of a single public sector equality duty were partial. The Bill included only the provisions for the general duties, and as such was rather vague on detail. The provision for specific duties was allowed for in secondary legislation, giving Ministers of the Crown powers to impose specific duties on public authorities. The government issued a consultation document regarding the specific duties for the single public sector equality duty (GEO 2009). It is clear from this document that the specific duties would in fact be far less specific than they are currently in the separate duties. For example, the consultation proposes that public authorities no longer be required to produce specific equality schemes. The justification for this is that ‘preparing and publishing equality schemes as discrete documents was burdensome and costly with little impact on outcomes’ (p. 20). The proposals are to allow authorities to identify their own objectives as part of the core business planning process. Given that the current long-term economic climate looks incredibly bleak for public authorities, this proposal is somewhat worrying. These proposals also have a knock-on effect for consultation of stakeholder groups. The DED and the GED currently require authorities to consult with stakeholder groups and, in the GED, trade unions. The consultation document plans for stakeholder participation were much weaker: The current disability and gender duties require public authorities to involve disabled people/ employees, service users and trades unions when drawing up their schemes. We propose to

5

Part 1, Clause 1.

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amend this, so that public authorities are required to consider how best to consult and involve people from the protected groups when setting equality objectives, and reviewing progress. (p. 82)

In their response to the consultation on the specific duties, the TUC (2009) highlighted the importance of retaining the specific reference to trade unions contained in the GED arguing: The reference to trade unions in the gender duty has been immensely helpful in getting public bodies to understand the important role trade unions can play in helping to engage the workforce and achieve the organisational and cultural change that was intended when the equality duties were introduced. (p. 12)

A similar fate has befallen the requirement for authorities to produce equality impact assessments. The consultation document again deferred to a more voluntarist approach to assessing impact by arguing that a specific duty to do so is ‘burdensome and bureaucratic’ (p. 22). The emphasis has moved away from public authorities being required to complete equality impact assessments on all of their policies and practices (EOC 2006: 37) to a position in the single public sector equality duty where there is no legislative requirement for public authorities to conduct impact assessments, but an expectation that impact assessments will be carried out on ‘key policies and service delivery initiatives’ (GEO 2010: 18). In effect this means that a valuable tool for mainstreaming equality has been severely weakened as not all policies and practices are subject to impact assessment. Similarly the potential for stakeholder involvement is reduced because they will no longer be able to insist on public authorities conducting equality impact assessments on anything not considered by the authority to be a key policy or service delivery initiative. Last, the consultation document proposed that the requirement to collect employment data should not be expanded to the new strands of age, sexuality and religion and only authorities with 150 or more employees be required to collect data on the established strands exempting, for example, the majority of schools. The results of the consultation published in a policy statement (GEO 2010) makes interesting reading. It highlights that there was considerable disagreement on the form the specific duties should follow, with employers’ bodies on the whole requiring less prescription, whilst stakeholder groups required greater or equivalent levels of prescription to that contained in the existing specific duties for race, gender and disability. Despite the mixed response to the consultation, the policy statement does not deviate to any great extent from the proposals in the consultation document, evident in the much repeated phrase ‘We remain of the view that ...’ (pp. 12, 18, 22, 23).

Conclusion: The End of the Road? Taken together, the proposals for the single Equality Act sent out a confusing message. In one respect there are innovative attempts to address some of the failings of the existing equality legislation and the intention of simplifying the existing web of legislation is broadly welcomed. However the proposals for the single public sector equality duty

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weaken one of the most innovative developments already made by invoking the familiar arguments that describe existing equality measures as ‘burdens’ and ‘costs’. It would appear that the new Act has not escaped the struggle between fairness and efficiency that Dickens (2007) argues has dogged all previous equality legislation. The wrangling over the content of the Equality Act 2010 was extensive. The slow progress of the Equality Bill through the Parliamentary system was caused by amendments from both ends of the political spectrum seeking either to strengthen weakened provisions or to limit or withdraw some of its more innovative aspects. In addition the Royal Assent, gained on 8 April 2010, which made the Bill law coincided with an announcement of a General Election where a change of political administration was expected and it was not clear whether the Bill would make it through the Parliamentary process before Parliament was dissolved. However much of the Act relies on secondary legislation to implement the most controversial measures, which may or may not be enacted in the future depending on the prevailing political ideology and strength of commitment to equality. Sadly it would appear that the historic face-off between efficiency and fairness has prevented the government from achieving the legislative innovation thought possible in 1997. One cannot escape the feeling that the tendency for compromise that has postponed equality for decades has won out again.

Addendum Since writing this chapter the coalition government has decided not to bring in to force the socio-economic duty, the provisions for gender pay gap reporting or the provisions for dual discrimination claims. Seven other provisions are still under consideration. The introduction of the specific duties in the Public Sector Equality Duty has been suspended pending further consideration by the government.

References Audit Commission (2004) The Journey to Race Equality, London: Audit Commission. Commission for Racial Equality (2007) Response to the Discrimination law Review, ‘A Framework for Fairness: Proposals for a Single Equality Act for Great Britain’, London: CRE. Dickens, L. (1997) ‘Gender, Race and Employment Equality in Britain: Inadequate Strategies and the Role of Industrial Relations Actors’, Industrial Relations Journal, 28:4, 282–291. —— (2007) ‘The Road is Long – Thirty Years of Equality Legislation in Britain’, British Journal of Industrial Relations, 45:3, 463–494. Discrimination Law Review (2007) A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, London: Women and Equality Unit. Durbin, S. and Conley, H. (2010) ‘Gender, Labour Process Theory and Intersectionality: Une Liason Dangereuse?’ in Thompson, P. and Smith, C. (eds) Working Life: Renewing Labour Process Analysis, Basingstoke: Palgrave MacMillan. EDF (undated) Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, A response from the Equality and Diversity Forum (EDF), London: EDF, available on: http://www.edf.org.uk/blog/?p=194 [accessed 10 March 2010].

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EHRC (undated) http://www.equalityhumanrights.com/legislative-framework/equality-bill/summaryof-our-response/ [accessed 22 January 2011]. EHRC (undated) Response to the Discrimination Law Review ‘A Framework for Fairness: Proposals for a New Equality Bill for Great Britain’, London: Equality and Human Rights Commission. EOC (2006) Gender Equality Duty Code of Practice England and Wales, Manchester: Equal Opportunities Commission. Equal Opportunities Review (2002) ‘Race Equality Work Needs to Focus on Outcomes’, Equal Opportunities Review, Report 120. Fredman, S. (2001) ‘Equality: A New Generation?’, Industrial Law Journal, 30:2, 145–168. GEO (2009) Equality Bill: Making it Work. Policy Proposals for Specific Duties. A Consultation, London: Government Equalities Office. GEO (2010) Equality Bill: Making it Work. Policy Proposals for Specific Duties. Policy Statement, London: Government Equalities Office. Hepple, B., Coussey, M. and Choudhury, T (2000) Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation, Oxford: Hart Publishing. Jewson, N. and Mason, D. (1986) ‘Theory and Practice of Equal Opportunities Policies: Liberal and Radical approaches’, Sociological Review, 34:2, 307–334. Page, M. and Conley, H. (2009) Implementing the Gender Equality duty in Local Government: First Findings, paper presented at the Equal Opportunities International Conference, Istanbul, July 2009. Peacock, L. (2009) ‘EHRC Leadership Rocked by Three Resignations’, Personnel Today, 30 March. Rees, T. (2005) ‘Reflections on the Uneven Development of Gender Mainstreaming in Europe’, International Feminist Journal of Politics, 7:4, December, 555–574. Thompsons Solicitors (2007) ‘Response to the Consultation – Discrimination Law Review – A Framework for a Fairer Future: Proposals for a Single Equality Bill for Great Britain’, available at: http://www.thompsons.law.co.uk/ltext/discrimination-law-review.htm [accessed 10 March 2010]. TUC (2009) Equality Bill: Making it Work. TUC Consultation Response to GEO Proposals for Specific Duties, London: Trades Union Congress.

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3 Dignity at Work:

The Law’s Engagement with Bullying and Harassment in the Workplace

JACKIE JONES

Introduction A gay man employed at the Church in Wales wins £37,000 after being bullied out of his job in Coleg Trefeca in Brecon. His manager called him a ‘stupid poof’ and gave him pink fairy toilet paper as a present. Inmates at a Leeds prison received £120,000 from the Prison Service after suffering beatings and racial discrimination by prison officers. They had been racially harassed and victimised. Conwy Council in Wales was ordered to pay £10,000 to a family because it failed to deal with complaints against neighbours who were harassing them. The family had bricks thrown through the windows, were racially abused and their cars damaged. The family lived in housing association property and the husband was disabled. A gay airport guard received £62,500 compensation after he was called ‘batty boy’ and sexually harassed by a female colleague. Muslim City of London workers won a multi-million pound out-of-court settlement for being sexually harassed, racially and religiously discriminated against and being subjected to a sexual environment in which clients would be taken to lap-dancing clubs, Jewish clients taken off their books among other allegations. A culture of bullying and harassment in the kitchen of Harry’s Bar in Mayfair led a waitress to win her sexual harassment and unlawful dismissal claim worth £124,000. There were a series of incidences, including being pushed against a wall and kissed on the neck by the chef. There has been much outcry over a lesbian soldier being awarded £187,000 for sexual harassment by a male sergeant. There was a sustained campaign of victimisation after rejecting his advances. All of these snapshots took place within a six-month period in 2009. Bullying and harassment at work take many forms and make headlines every day. They are a major part of our working lives. Most people who suffer from this kind of treatment believe they must resign or put up with it. Most never complain and never use the law as a remedy. This chapter looks at how the law engages with workplace issues of bullying and

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harassment. It is a legal overview, offering some analysis of aspects of both issues and some thoughts on future directions. It cannot, within the space available, give a complete picture. The law in this area is constantly evolving and fitting itself around the new research that is being published in many countries around the world. That it is being, has been and continues to be, led by action on an EU-wide scale is testament to the fact that many countries have not developed domestic laws that are very sophisticated and that are able to address the globalised market, let alone the pervasive institutionalisation of the type of managerialism that is one of the main culprits of workplace or environmental bullying and harassment. This is particularly the case in times of recession in which women (more bullied and harassed than men) are often at the forefront of losing their already marginal space within an organization (TUC 2009).

Bullying and Harassment at Work Bullying is rife not just in UK workplaces, but in many countries around the world. The International Labour Office report on workplace violence found that bullying is one of the fastest growing forms of workplace violence (Chappell and Di Martino 2000). It has been argued that it is a form of evil and torture (see Vickers (2002) for a particularly vivid description of workplace bullying,). The definition of violence from the ‘Opinion on Violence at the Workplace,’ adopted on 29 November 2001 by the Advisory Committee on Safety, Hygiene and Health Protection at Work of the European Commission states: Violence manifests itself in many ways, ranging from physical aggression to verbal insults, bullying, mobbing and sexual harassment, discrimination on grounds of religion, race, disability, sex or, in any event, difference and may be inflicted by persons both outside and inside the working environment.

Despite this global phenomenon, there are few countries which have, up to now, sought specifically to legislate to stop it. More often than not it is handled under harassment laws. This is equally the case in the UK although the Employment Rights Acts are often used as a legal vehicle. The UK has a major bullying problem. It is often featured on the news, seen on TV programmes and continually being ‘tackled’ in schools and the public sector. They are right to do so as one study of UK workplaces uncovered that 10.6 per cent of the employees had been bullied in the previous 6 months (Hoel and Cooper 2000). In another study, approximately 90 per cent of reported cases involved managers bullying subordinates. In addition, over 50 per cent of incidents of bullying were by females, leading one author analysing this trend to state that ‘occupational success caus[es] a metamorphosis into a bully’. (O’Donnell 1999). Bullying has been described as ‘a particularly insidious form of counterproductive workplace behaviour’ with one study in the UK finding that approximately one fourth of victims resigned voluntarily just to get away from the violence (Meglich-Sespico et al. 2007). Bullying is a specific form of harassment, usually developing gradually over time, with a cumulative effect that entraps the victim (Peyton 2003: 8). One definition of bullying developed by the former Manufacturing Science and Finance (MSF) union (now part of UNITE) is:

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Persistent, offensive, abusive, intimidating, malicious, or insulting behaviour, abuse of power or unfair penal sanctions, which makes the recipient feel upset, threatened, humiliated or vulnerable, which undermines their self-confidence and which may cause them to suffer stress. (Peyton 2003: 38)

Bullying takes many forms. Some of the most common include: name calling in public, using a scapegoat by blaming the party concerned, physical abuse, increases in work targets, moving the individual without support. In short, it aims to undermine your dignity as a human being (Bonafons et al. 2008, no page reference available). The effect on individuals who have been bullied or harassed can include an increase in stress, mental health issues, sickness absence, lack of progress in work targets, withdrawal from colleagues, even suicide (Harvey et al. 2009: 27; Vickers 2002). It is in this context that similarities between intimate partner violence and workplace bullying and harassment have been identified. For example, the power differential between employer (perpetrator) and employee (victim) plays a significant role, making it difficult for the employee to step out of the situation for fear of losing income, and so on, as well as the psychological and physical effect on the victim both at work (performance influencing) and at home (relationship influencing). This describes not only the primary form of bullying by (possibly) a colleague but also the secondary form of bullying through organisational policies and lack of clear legal remedies (Meglich-Sespico et al. 2007: 34). So when we spend a vast amount of time going to, being at, and leaving work, not to mention thinking about work when not physically at work, suffering violence mentally, physically and/or physiologically is bad for all in society (Mayhew et al. 2004). That is why it is important to take the situation out of the hands of those most affected and treat it as an organisational issue. Until relatively recently, harassment was seen as a private matter that just happened to take place at work. Sexual banter, racial jokes, comments about not being able to read, for example, were regarded as a normal part of everyday workplaces – quite acceptable or at least something one put up with. If someone took offence they must be sensitive and as the workplace is for all workers, the ‘sensitive ones’ just had to take it or leave. The legal concept of harassment (in particular sexual harassment) did not materialise in the UK until the US jurisprudence and legal theory was established in the 1970s (MacKinnon 1979, 1989; MacKinnon and Siegel 2004). So, for example, the struggle to have sexual harassment seen as sex discrimination was more successful in the USA than in many EU member states until this century. Indeed, most member states had no national laws recognising harassment until the EU enacted Directive 2002/73/EC of the EP and the Council amending the equal treatment Directive 76/207/EEC which required the recognition of harassment as a violation of personal dignity and thus violence. The EU took the lead in proposing harassment legislation as early as 1988 when the Commission funded a research report into the pervasiveness of sexual harassment of women in the workplace (Rubenstein, The Dignity of Women at Work, Commission of the European Communities, 1988; see generally Zippel 2006). It concluded, inter alia, that sexual harassment in the workplace was endemic and affected the dignity of all women at work. The main outcome of the report and current law is the emphasis in all forms of harassment law on the lack of respect for the dignity of a person as a woman, as a black person, as a transsexual, as a person with a disability, as a Jew, and so on (Monaghan 2007).

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Thus there has been a long struggle to make lawmakers accept the connection between being harassed (and bullied) at work and marginalisation within an organisation for belonging to a ‘minority’ or ‘protected’ group as well as the dynamics of workplace progression tactics.

The Law’s Response to Harassment at Work Originally only racial and sexual harassment were recognised by the law in UK workplaces. They were seen as forms of direct discrimination where the conduct amounted to less favourable treatment and there had been detriment (Sex Discrimination Act 1975 and Race Relations Act 1976). The main problem with proving any form of direct discrimination under the current law is the requirement for a comparator and proving that you have been treated less favourably because of (for example) your sex (Samuels 2004). That is to say, one has to compare oneself to another person similarly situated of (for example) the opposite sex; as a result of that treatment one suffered a detriment. Thus it was relatively easy to come up with defences to sexual and racial harassment claims. For example, putting semi-pornographic calendars up in the workplace might have offended as many men as women thus women were not treated less favourably than men (Stewart v Cleveland Guest (Engineering) Ltd [1996] ICR 535). Clearly this situation was unsatisfactory as there is a difference: the calendar may well offend men but it does not undermine their dignity as men (Monaghan 2007: 347). In ‘early’ cases this type of analysis, looking at the violation of a person’s dignity, was lacking. It was not until a freestanding anti-harassment law was enacted that this type of situation was rectified. It had become apparent that the use of direct discrimination with the requirement of a comparator and detrimental treatment was a blunt instrument, disabling more claims than it enabled, especially as the focus was clearly on what the perpetrator thought and the ‘sensitivity’ of the person targeted. Now there is a plethora of different statutes and regulations that can be used in order to obtain a remedy for bullying and harassment. In addition to provisions under the Equality Act 2010, these include:

• • • • • • • • • • • • •

Health and Safety Act 1974; Employment Protection (Consolidation) Act 1978; Management of Health and Safety at Work Regulations 1992; Criminal Justice and Public Order Act 1994; Employment Rights Act 1996; National Minimum Wage Act 1998; Working Time Regulations 1998; Data Protection Act 1998; Protection from Harassment Act 1997; Public Interest Disclosure Act 1998; Crime and Disorder Act 1998; Crime and Security Act 2001; and Employment Act 2002.

These cover both civil and criminal remedies and include compensation, injunctions, employment rights (dismissal) and discrimination. All the regulations regarding

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discrimination, actions under the common law of negligence and contract law as an implied term of the contract of employment of health and safety duty of the employer and trust and confidence are also available. Compensation is the most common form of remedy as it is awarded post facto once the harm has already been done. It is highly unusual for an ex-employee bullied or harassed out of the workplace to wish to return to that environment. There is no upper limit on the amount of compensation available for discrimination claims (see below). Two particular areas of law’s engagement with bullying and harassment will be dealt with in some detail here; the Protection from Harassment Act in which the law tries to deal with persistent forms of harassment by using both the criminal and civil law, and the free-standing harassment laws available for all strands of equality. The emphasis is on the workplace, although the law does not necessarily discriminate between places of work and elsewhere.

Protection from Harassment Act 1997 The Act covers all forms of harassment wherever it occurs and can also be used to cover workplace harassment and bullying despite initial uncertainty (see DPP v Moseley (1999) The Times 23 June; Majrowski v Guys and St Thomas’ NHS Trust [2006] UKHL 34). It does not define harassment with any precision (Conaghan 1999). Section (1) states that ‘a person must not pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment of the other’. Section (1A) covers a situation where the harassment is of more than one person and where the harasser is trying to persuade another not to do something he legitimately is entitled to do or to do something that he is not under any obligation to pursue. Breach of either of these sections is a criminal offence punishable with up to six months imprisonment (s 2 of the Act) and could also constitute a tort for which damages can be awarded or an injunction put in place (ss 3 and 3A). A breach of an injunction under the Act is punishable with up to five years imprisonment thus making it a rather powerful weapon if used. The Act is a prime example of where the civil law and criminal law blur – but not in a good way (Conaghan 1999). From the point of view of the victim of harassment the option to ask for a criminal law remedy as opposed to a civil law remedy may be difficult. Research on domestic violence suggests that where the option for a civil law remedy is available, the woman will usually opt for it as she does not want to ‘criminalise’ her partner and probably the father of her children. Given this fact, it is difficult to envisage many workplace colleagues using such a draconian measure against a fellow employee. The Act specifies that there must a ‘course of conduct’. That requirement makes it more stringent than under discrimination law legislation which can be triggered with a single incident. Under the 1997 Act a course of conduct is defined in s 7(3) as involving ‘conduct on a least two occasions.’ However, where there has been a single event, the claimant can apply for injunctive relief (civil remedy, not criminal) where ‘an actual or apprehended breach of section 1 may be subject of a claim in civil proceedings’ (s 3(1)). Course of conduct means at least two incidents not too far apart in time unless there is clear evidence that they constitute a course of conduct (DPP v Lau [2000] The Times 29 March). This is a matter of evidence before the court/tribunal. The Act is ‘reserved’ for more serious forms of harassment and, because it is reactive law-making, offers less potential for claims of workplace harassment. Clearly the requirement of a course of

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conduct is a deterrent to most situations that start with what seems like ‘trivial’/small incidents that one may think are one’s imagination (arguably the bully’s best weapon). It is only really when they escalate that the law is engaged in a meaningful way.

Harassment, Discrimination Law and a Freestanding Claim The coverage of harassment law has been described as ‘perhaps one of the most successful elements in the move to codify all the major heads of discrimination’. (Smith and Thomas 2008: 274). With the enactment of the Race Directive (2000/43/EC), the Equal Treatment Directive (2002/78/EC) for sex discrimination and the Framework Employment Directive (2000/78/EC) for discrimination on other grounds (although slight differences exist in some respects) a freestanding offence of harassment was specifically created. The Equality Act now encapsulates the claim for age, disability, gender reassignment, race, religion and belief, sex and sexual orientation in sections 26 and 40. The sections do not cover maternity/pregnancy or marriage/civil partnership. Section 26 refers to the general situation of harassment, whereas section 40 covers harassment by an employer. Section 26 reads: 1. A person (A) harasses another (B) if – a) A engaged in unwanted conduct related to a relevant protected characteristic, and b) the conduct has the purpose or effect of – i) violating B’s dignity, or ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 2. A also harasses B if – a) A engages in unwanted conduct of a sexual nature, and b) the conduct has the purpose or effect referred to in subsection (1)(b). 3. A also harasses B if – a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, b) the conduct has the purpose or effect referred to in subsection (1)(b), and c) because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

The Act talks about unwanted conduct that is ‘related to’ a protected characteristic. This moves the emphasis away from the reason for the harassment. It also means that employees will be able to complain of behaviour that they find offensive even if it is not directed at them. In addition, the person affected need not possess the relevant characteristic themselves. The key to making out a claim is whether or not the unwanted conduct complained of has the effect of violating B’s dignity or creating an intimidating environment, and so on, as defined within the Act. Subsection (4) guides the court as to what to take into account when making a decision as to the effect on B of A’s conduct: the perception of B; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect. The judgment of whether or not conduct is unwanted

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and what effect it may have on B is a matter of fact not law and will be left to a tribunal/ jury to determine based on the facts presented at tribunal. This can be, and frequently is, a difficulty: what is unwanted to one may not be unwanted to another. It is therefore important for the individual to make clear that the conduct is unwanted by telling the person concerned or getting a representative to tell the person. Working life is rarely this straightforward however. Thus most employers have workplace policies that direct employees as to normally acceptable behaviour and unacceptable behaviour. Having bullying and harassment policies in place is an important aspect of employer responsibility. In fact, as of 1999 around 72 per cent of workplaces in the UK had a harassment policy (Zippel 2006: 110) and as of 2004 around 82 per cent had an anti-bullying policy (Chartered Institute of Personnel and Development (CIPD), Managing Conflict at Work, 2004), as well as a counselling service. Even where the conduct complained about is not explicitly mentioned in the workplace policy, there is an element of common sense that needs to be applied. So, for example, in Reed v Stedman [1999] Industrial Relations Law Reports (IRLR) 299, the Employment Appeal Tribunal held that a sexually suggestive remark and attempt to look up the complainant’s skirt was sexual harassment. It is now clearly established that there need not be more than one incident that violates a person’s dignity for it to amount to unwanted conduct (Reed v Stedman [1999] IRLR 299). If there is more than one incidence then a tribunal will have to make a determination based on all the facts and not just look at each individual incident in isolation to decide if there is conduct which has the effect of creating an intimidating environment, and so on. In this way it can give effect to the realistic situation where ‘each successive episode has its predecessors, that the impact of the separate incidents may accumulate’ (Driskel v Peninsular Business Services Ltd (2000) IRLR 151). It is argued that this latter situation is one where positive duties (see Conley, Chapter 2) can play a leading role in prevention. There is no requirement for the harassment to be intentional, rather the conduct must have the purpose or effect of amounting to harassment as outlined above. If there is no manifested intention then the conduct is only seen as having the effect of harassing the claimant if, taking into account all the circumstances of the case, including the claimant’s perception of the conduct, it should reasonably be considered as having that effect. This is a reasonableness test (or reasonable consideration test) – subjective/ objective in terms of assessing if the conduct complained of would have the effect of creating an intimidating environment for a reasonable person (objective part of the test) but the particular perception of B will be taken into account (subjective part of the test) (see Driskel v Peninsula Business Services Ltd [2000] IRLR 151). It is for the court/tribunal to decide whether this test is made out. The burden of proof shifts (ss 136 and 137, Equality Act 2010) in the same way as for direct discrimination, meaning that if the complainant proves facts from which a court/tribunal could conclude, in the absence of an adequate explanation, that the person complained of has harassed another, then the court/tribunal must uphold the complaint unless the person complained of can prove otherwise (see Monaghan 2007 Chapter 14). This shifting of the burden is significant because usually the person who has been harassed or bullied is no longer at the organisation and has no access to files, workmates, emails, and so on. Disproving discrimination is easier for the organisation than proving discrimination is for individuals, bearing in mind the disparity in power relations. The decision in Coleman (Case C303/06 S Coleman v Attridge Law and Steve Law; Waddington 2007) has been confirmed in that harassment by association is also covered

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in the case of all protected grounds (except maternity/pregnancy and marriage/civil partnership). Thus where there is conduct that amounts to harassment on the grounds that the person one is associated with is believed to be (for example) gay (C), then B can take a case of sexual orientation harassment by association. The crucial aspect of ‘on the grounds of’ in all harassment cases is the ability of B to prove that either it has the purpose or effect of violating someone’s dignity or the unwanted conduct was for the purpose of creating an intimidating, hostile, degrading, humiliating or offensive environment for the person concerned. For example, this would include putting a calendar of naked men up on the wall of an open-plan workplace when just the week before it was discussed as being offensive. A ‘defence’ of ‘just a joke’ will in these circumstances not be acceptable. Section 40 Equality Act covers third party harassment – by an employer, whether B is employed by him/her or has applied for employment. A will be held liable for harassment where a third party harasses B in the course of her employment with A and A has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. The ‘three strikes rule’ known in sexual/sex harassment has been extended to cover all grounds (except, again, maternity/pregnancy and marriage/ civil partnership). This means that A must know that B has been harassed on at least two occasions by a third party during her employment with A. It is not material whether the third party is the same or a different person and need not be employed by A. Thus the provision covers employers, fellow employees and equally customers and extends from the workplace to, for example, after work social gatherings and training days. This latter form of harassment has been increasing in recent years and is a difficult area to police. However, once an employee makes the employer aware of harassing behaviour on the part of other employees or customers, the employer is fixed with knowledge which means the employer is under an obligation to take action as long as there has been a course of conduct. The action(s) to be taken should be laid down in the workplace harassment policy (EOC v Secretary of State for Trade and Industry [2007] EWHC 483).

Outcomes: Awards of Compensation In Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, para. 65, the Court of Appeal laid down guidelines for tribunals in assessing the damages that should be awarded in cases of racial or sexual harassment. These same guidelines apply to other forms of workplace harassment. Aggravating features will significantly affect the level of damages awarded: The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race … Only in the most exceptional case should an award of compensation for injury of feelings exceed £25,000. The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.

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It is common for employees to leave employment and claim constructive dismissal. The level of compensation awarded by courts or in out-of-court settlements have been relatively high, depending on the presence or absence of any aggravating features (for example, multiple discrimination or length of bullying): £28,000–£1 m and higher. This also includes suffering from stress, trauma, industrial and personal injury, whistle-blowing, negligence and injury to feelings as a result of being bullied at work.1 Stress-related claims have been on the increase year on year since the first case in 1995 (Walker v Northumberland CC; TUC 1998). This is a growing area were large pay-outs can be obtained if the liability of the employer for failing to take action over a protracted period of time can be proven. That is why the reaction to successful claims of bullying with large pay-outs has led many more employers to negotiate dignity at work policies with the unions. Having these policies in place is evidence that can be used by the employer in any tribunal/court to evidence that they will not tolerate bullying or harassment by employees – regardless of their position. Having a dignity at work policy which covers both harassment and bullying obviously does not exempt employers from liability but spreads the burden of ensuring a non-violent workplace amongst all employees, rather than making it purely a management issue. Unions can and do play a major role in ensuring the policy is enforced and training provided to all employees, including managers. Where a dignity at work policy has been negotiated it becomes harder to make a successful claim. In other words, arguably the burden of proof will be higher on the employee to prove bullying or harassment, despite the burden of proof shifting.

Current Trends It is clear that the law’s engagement with bullying and harassment has changed perspectives. It has been agued that harassment regulation can ‘be justified in accordance with the liberal harm principle by citing specific mental and psychological harms. These harms can be represented as individual because they are ways of interfering with the well being and autonomy of individuals.’ (Bamforth et al. 2008: 449). However, there has been a clear development in the philosophy underlying the legal provisions (both soft and hard law), reflecting the evolution from a pure liberty point of view (protection of dignity of the individual) to a gradual focus on equality (a right based on symmetrical comparison) (Baer 2004: 582), and I would argue an eventual amalgam of the two into positive duties that reflect the difficulties of rights enforcement both in law and in the workplace to shift the focus away from the individual employee to the working environment. Occupational stress has been recognised as one of the features of workplace organisations. The stress is exacerbated by the fact that in this country we have the individual litigation model. That is to say, normally, individual workers must take cases and no form of class action is possible. This is an unsatisfactory situation for several reasons. Framing the law on harassment and bullying in terms of dignity of the individual magnifies this stress because it relies on individual workers making the case that they have been bullied or harassed by a manager’s behaviour rather than focusing on (offensive) behaviour that is being accepted in the workplace. It has been pointed out 1

See www.bullyonline.org/action/caselaw.htm [accessed 25 January 2011.

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that stress felt by individuals who believe they have been bullied or are being harassed ‘pathologises’ the individual by blaming her for feeling a particular way. ‘There is something wrong with her/him if s/he feels harassed.’ ‘She is so sensitive.’ These attitudes do not serve to address the situation, having the effect of leading to more pressure and stress, thus dissuading individuals from taking action to alleviate the situation. This in turn permits the workplace to continue to be a hostile environment (Thompson 2003: 206; Vickers 2002). The same may be said of unregulated speech, drawings and writing in the workplace and may lead to the continuation of job segregation. That is because rampant harassment and bullying ‘create[s] a serious disincentive for women [transsexuals, disabled persons, and so on] to enter and remain in non-traditional jobs’ (Schultz 1990; Koppelman 1996). This is where the issue of human rights protections is most relevant. One person’s freedom of speech or action is another’s discriminatory practice. Thus society and business is in a situation where it has to make a choice as to which takes priority. It is in this decision that we can see the importance, or lack thereof, of equality and dignity. If we are to change the workplace these issues need to be addressed. The critical mass theory may lead to the de-sexualisation and so on of the workplace in which respect and dignity can be fostered and where bullying and harassment have no place. That would mean that the employers will have to accept the way women, transsexuals, gays, lesbians, disabled, black, and other people are, even if they are regarded as more sensitive, more emotional or not (Koppelman 1996: 254), or they have caring responsibilities which require the worker to physically take time away from the workplace, but not necessarily from work per se. We still have some way to go on this issue. If one accepts that the elimination of the causes of workplace violence, including bullying and harassment, are the responsibility of the employer then the type of management style prevalent in the UK needs to change. The impact of managerialism, long-hours culture, accountability, blame culture and a climate of redundancies all create an atmosphere in which bullying and harassment are able to flourish despite legal regulation. So, for example, the response from many managers to problems of production in the workplace is to bring in more managers to deal with the issue or to re-structure (similar to the frenzied law-making we have seen over the last 13 years from a Labour government) (Pockett 2008: 183). As with most issues, once the true cost of a problem becomes more apparent more action is forthcoming (Van der Vleuven 2007: 164–167). According to the Chartered Institute of Personnel and Development (CIPD) there are direct and indirect costs: Conflict at work costs employers nearly 450 days of management time each year – equivalent to the time of two managers full time – and almost 4% of grievance and disciplinary cases are related to bullying or harassment incidents. (CIPD 2004, cited in Stephens and Hallas 2006: 19–20)

On average 12 days a year are spent on preparing for employment tribunal cases, not to mention the actual cost of defending a case before a tribunal. The CIPD report gives the costs to employers of tribunals as shown in Table 3.1.

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Table 3.1 Average employment tribunal costs to employers Costs Settling out of court Paying compensation because of tribunal loss Legal advice Recruiting new staff

UK average (£) 2,063 650 3,021 1,750

Source: CIPD 2004.

By 2007 average annual costs associated with employment tribunals were almost £20,000 per organisation (CIPD 2007). Costs have continued to rise due to levels of awards as well as the fact that there is no upper limit on the amount of compensation available for a successful discrimination law case (see headlines above). These are direct costs. Indirect costs can be just as or even more expensive for an organisation. Costs include, sickness absence, work decrease, increased labour turnover, reduced customer satisfaction among others (Stephens and Hallas 2006: 20–22). Cost analysis also affects law-making. Thus as a result of ever increasing awards of compensation because of environmental bullying and harassment and the consequent occupational stress the law is starting to formulate its strategy around defining bullying and harassment as hate crime.

Criminalising Bullying and Harassment in the Workplace The development of legislation on hate crimes is significant as it recognises the aggravation of an offence by prejudice on grounds of race, sex, disability, sexual orientation or transgender identity at the sentencing stage, increasing the length of sentence to reflect the severity of the prejudice manifested. The use of hate crime in the workplace and beyond as a deterrent criminal law measure can be used to force employers to fulfil their obligations to provide workers with a safe place to work. Indeed, the Crime and Security Act 2001 (amending the Crime and Disorder Act 1998) already created the offence of religiously aggravated harassment. So where there is hostility, violence and harassment based on a person’s religious affiliation this can be criminally punished as well as providing a remedy in unlawful harassment against the employer (see generally Macdonald 2004: 124 but note that some of the law has been updated). Arguably it was not until criminal law measures were enacted in relation to health and safety at work that employers really sat up and took notice. The current trend therefore is towards shifting responsibility for violence in the workplace away from the employee to the employer who is more able to both police and create a violence-free workplace. Related to this is the enactment in section 124 of the Equality Act 2010 which permits an employment tribunal to make recommendations to a change in the organisational behaviour from which a successful discrimination case has been made out. This would go some way in helping others affected by organisational practices which amount to bullying and harassment but will not help the individual who won the case.

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Conclusion: Shift to Organizational Responsibility The shift in focus in the law to organisational structures, policies and practices is an area in which positive duties can be useful. Here the idea of positive duties goes further than the existing public sector duties. As Fredman argues, the state has a duty to positively promote anti-discrimination, dignity and liberty wherever the individual citizen finds herself. That includes the workplace. Human rights law can be used as an instrument to proactively change the working environment by shifting the burden on the employer to have a zero-tolerance zone for bullying and harassment, backed up by penalties for breach. The shift requires all parties to work together collectively to genuinely achieve change (Fredman 2009). That may seem like an ideal to strive for, rather than a realistic goal. Nevertheless, it is advisable for all workplaces to have an up-to-date dignity at work policy for both bullying and harassment that includes procedures for investigating complaints, counselling services for victims, effective remedies for addressing complaints, disciplinary procedures against the perpetrator, and the availability of transferring to another part of an organisation as well as effective strategies for addressing any negative cultural behaviour. Thus the combination of positive actions on the part of all in the workplace, backed up by effective laws can make our extensive time at work a much more positive experience.

References Adams, A. and Crawford, N. (1992), Bullying at Work – How to Confront and Overcome It, London: Virago. Addison, A. (2007), Religious Discrimination and Hatred Law, Abingdon: Routledge Cavendish. Baer, S. (2004), ‘Dignity or Equality? Responses to Workplace Harassment in European, German and US Law’, in MacKinnon, C. and Siegal, R.B., Directions in Sexual Harassment Law, London: Yale University Press. Baker, C.N. (2008), The Women’s Movement against Sexual Harassment, Cambridge: Cambridge University Press. Bamforth, N., O’Cinneide, C. and Malik, M. (2008), Discrimination Law: Theory and Context, Text and Materials, London: Sweet and Maxwell. Becker, G.S. (1957), The Economics of Discrimination, Chicago: Chicago University Press. Blanck, P. and Schartz, H.P. (2003), ‘Studying the Emerging Workforce’, in Herr, S.S., Gostin, L.O. and Koh H.H., The Human Rights of Persons with Intellectual Disabilities: Different but Equal, Oxford: Oxford University Press. Chappell, D. and Di Martino, V. (2000), Violence at Work, 2nd ed. Geneva: International Labour Organisation (ILO). Chartered Institute of Personnel and Development (2004), Managing Conflict at Work: A Survey of the UK and Ireland, London: CIPD. Chartered Institute of Personnel and Development (2005), Bullying at Work: Beyond Policies to a Culture of Respect, London: CIPD. Chartered Institute of Personnel and Development (2007), Managing Conflict at Work, London: CIPD. Chunn, D.E., Boyd, S.B. and Lessard, H. (eds) (2007), Reaction and Resistance: Feminism, Law, and Social Change, Vancouver: University of British Columbia Press.

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Conaghan, J. (1999), ‘Enhancing Civil Remedies (Sexual) Harassment: s3 of the Protection from Harassment Act 1997’, Feminist Legal Studies, 7: 203–214. Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain (2007), Department of Communities and Local Government, London: HMSO. Fredman, S. (2002), Discrimination Law, Oxford: Oxford University Press. —— (2009), Transforming Human Rights: Positive Duties Positive Rights, Oxford: Oxford University Press. —— and Spencer, S. (2003), Age as an Equality Issue: Legal and Policy Perspectives, Oxford: Hart Publishing. Fudge, J. and Owens, R. (eds) (2006), Precarious Work, Women, and the New Economy, Oxford: Hart Publishing. Hakim, C. (2004), Key Issues in Women’s Work (2nd ed.), London: Glasshouse Press. Harvey, M., Treadway, D., Thompson Heames, J. and Duke, A. (2009), ‘Bullying in the 21st Century Global Organization: An Ethical Perspective,’ Journal of Business Ethics, 85: 27–40. Hoel, H. and Cooper, C.L. (2000), Destructive Conflict and Bullying at Work, Manchester: University of Manchester Institute of Science and Technology. Kennedy, H. (2004), Just Law: The Changing Face of Justice – And Why it Matters to us All, London: Chatto & Windus. Koppelman, A. (1996), Antidiscrimination Law & Social Equality, New Haven: Yale University Press. McColgan, A. (2005), Discrimination Law: Text, Cases and Materials (2nd ed.), Oxford: Hart Publishing. Macdonald, L.A.C. (2004), Equality, Diversity and Discrimination, London: Chartered Institute of Personnel and Development. MacKinnon, C.A. (1979), Sexual Harassment of Working Women, New Haven: Yale University Press. —— (1989), Towards a Feminist Theory of State, New Haven: Yale University Press. —— and Siegel, R.B. (2004), Directions in Sexual Harassment Law, New Haven: Yale University Press. Mayhew, C., McCarthy, P., Chapell, D., Quinlan, M., Barker, M. and Sheehan, M. (2004), ‘Measuring the Extent of Impact from Occupational Violence and Bulling on Traumatised Workers’, Employee Responsibilities and Rights Journal, 16: 117–134. Meglich-Sespico, P., Farley, R.H. and Erdos Knapp, D. (2007), ‘Relief and Redress for Targets of Workplace Bullying’, Employee Responsibilities and Rights Journal, 19: 31–43. Monaghan, K. (2007), Equality Law, Oxford: Oxford University Press. O’Donnell, T. (1999), ‘The Sweat of the Brow or the Breaking of the Heart?’, in Morris, A. and O’Connell, T. (eds), Feminist Perspectives on Employment Law, London: Cavendish Publishing. Paoli, P. (2000), Violence at Work in the European Union Recent Finds, Dublin: European Foundation for the Improvement of Living and Working Conditions. Peyton, P.R. (2003), Dignity at Work: Eliminate Bullying and Create a Positive Working Environment, Hove: Brunner-Routledge. Pitt, G. (2007), Employment Law (6th ed.), London: Sweet & Maxwell. Pockett, P. (2008), ‘Human Service Professionals, Violence and the Workplace’, in Fawcett, B. and Waugh, F. (eds) Addressing Violence, Abuse and Oppression: Debates and Challenges, Milton Park: Routledge. Samuels, H. (2004), ‘A Defining Moment: Feminist Perspective on the Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Directive’, Feminist Legal Studies, 12: 181–211. Schultz, V. (1990), ‘Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Agreement’, 103 Harvard Law Review, 1749, at 1833. Smith, I. and Thomas, G. (2008), Employment Law, Oxford: Oxford University Press.

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Stephens, T. and Hallas, J. (2006), Bullying and Harassment: A Practical Handbook, Oxford: Chandos Publishing. Strebeigh, F. (2009), Equal: Women Reshape American Law, New York: WW Norton & Co. Thompson, N. (2003), Promoting Equality: Challenging Discrimination and Oppression (2nd ed.), Basingstoke: Palgrave MacMillan. TUC (1998), Trade Union Trends: Focus on Union Legal Services, London: Trades Union Congress. TUC (2009), Women and Recession, London: Trades Union Congress. Van der Vleuven, A. (2007), The Price of Gender Equality, Aldershot: Ashgate. Vickers, L. (2002), Freedom of Speech and Employment, Oxford: Oxford University Press. Waddington, L. (2007), ‘Protection for Family and Friends: Addressing Discrimination by Association’, Anti-Discrimination Law Review, 5: 13–21. Zippel, K.S. (2006), The Politics of Sexual Harassment, Cambridge: Cambridge University Press.

chapter

4 The Law Relating to Pregnancy and Maternity Leave

GRACE JAMES

Introduction Pregnancy-related discrimination has been described as ‘one of the most hidden and damaging forms of workplace injustice’ (EOC 2005), yet only relatively recently has it been specifically included in the text of the Sex Discrimination Act 1975 (SDA) at S3A and S6A. Prior to this, litigants could only draw on the plethora of case law that acknowledged less favourable treatment on the grounds of pregnancy, or a reason connected to pregnancy (such as being absent on maternity leave), as sex discrimination contrary to the Act. A brief outline of the scope and nature of this type of discrimination and a history of the development of the law are provided below (see below, ‘Pregnancy-Related Discrimination in the UK’, and ‘Pregnancy Discrimination as Sex Discrimination’) At its core though, this chapter explores the potential and limitations of anti-discrimination law provisions to address this type of injustice. Then, ‘Key Issues’ will highlight the main boundaries of the legal protection available and, in doing so, reveals the limits of the equality model as a method of tackling this type of discrimination.

Pregnancy-Related Discrimination in the UK It is estimated that almost half of pregnant workers or those on maternity leave will experience some form of discrimination as a result of their pregnancies, and that every year some 30,000 women are dismissed, made redundant or leave as a result of some kind of detrimental treatment at work as a result of pregnancy or childbirth (EOC 2005; see also Dunstan 2001). Very few (1,000 per year) of those who actually experience discrimination of this nature actually litigate (James 2004, 2007 and 2009). Detrimental treatment might include being overlooked for training or promotion, demotion or refusal of time off for ante-natal appointments, being given the ‘cold shoulder’ or verbally abused (see further James 2007 and 2009; Adams et al. 2005; Dunstan 2001; O’Grady and Wakefield 1989). It can also include an unwanted reduction or increase in hours of work following the announcement of pregnancy or upon return from leave (James 2009: 28). In 2004 concern about the level and nature of pregnancy-related discrimination led the Equal

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Opportunities Commission (now part of the Equality and Human Rights Commission (EHRC)) to conduct a formal investigation (see EOC 2005), but the problem is yet to be seriously tackled: recent evidence suggests that businesses are using the recent economic recession as a convenient excuse to break the law and make pregnant workers redundant (Woodroffe and Higham 2009). The levels of estimated incidence of pregnancy-related discrimination are surprising given that legislation provides a course of action in these situations and that employers can be required to pay considerable damages if found liable. It is also interesting that pregnancy-related discrimination in the UK is not geographically confined in any way and exists across all industries, where women are employed (James 2009: 29–30). However, research suggests that pregnancy-related dismissals are more likely to occur amongst those with limited service history at the time they announce their pregnancies (James 2009: 30) and this reflects research findings that some employers frown upon pregnancy within the first year of employment (Young and Morrell 2005). EOC research suggests that some cohorts of pregnant workers might be more vulnerable to discrimination of this nature than others – younger women, those with disabilities, lesbians, atypical workers (such as temporary or agency staff), those from ethnic minorities and those working for small businesses (EOC 2005; Leighton and Evans 2004). In addition, if poor attitudes exist towards pregnancy it seems likely to emerge prior to maternity leave: in a study of 1,368 pregnancy-related unfair dismissal cases, many women were dismissed within days of announcing their pregnancies to employers (James 2009: 30). The causes of pregnancy-related discrimination are difficult to pin down, although studies suggest that the likelihood of it occurring is influenced by: lack of dialogue and planning between workers and their employers (Young and Morrell 2005); limited understanding of legal obligations and the legal implications of detrimental treatment on the grounds of pregnancy and maternity leave amongst line-managers and small firms (Young and Morrell 2005; Leighton and Evans 2004); and negative stereotypical assumptions about pregnancy (Bistine, 1985; Collinson et al. 1990; EOC 2005; Halpert et al. 1993; Low Pay Unit 2002). Stereotypical attitudes include views that pregnant women are less committed to their jobs, are a financial burden on the business, are likely to be less focused and more irrational, and more likely to be absent because of illness and (in the future) childcare issues. Such negative views are often fuelled and privileged in high-profile sound-bites from the likes of Sir Alan Sugar, whose general unwillingness to employ women of childbearing age was discussed in a tabloid newspaper (Daily Mail, 9 February 2008; see also United Kingdom Independence Party (UKIP) MEP Godfrey Bloom, cited in The Daily Telegraph, 21 June 2004).

Pregnancy Discrimination as Sex Discrimination Pregnancy has, historically, proved particularly problematic in relation to the SDA, not least because of the need for a comparator in order to establish direct discrimination. When the SDA was drafted, pregnancy-related discrimination was not a part of its ambit (Honeyball 2000). Indeed maternity rights per se were seen as part of workers’ rights generally and provided for in the Employment Protection Act 1975, legislation that received Royal Assent on the same day as the SDA. The Employment Protection Act 1975 provided protection against dismissal on grounds of pregnancy or for a reason related to

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it (S60) and provisions for maternity leave and the right to return to work. The SDA on the other hand sought to tackle broader discrimination issues; ‘less favourable treatment’ on the grounds of sex, and used the symmetry model, based upon Aristotle’s notion that like ought to be treated alike and having at its core the need for a (in our case, male) comparator, to achieve its aim. For many years this need for a male comparator prevented the SDA from being fully utilised by working women as a means of challenging acts of pregnancy-related discrimination. Very early on the Employment Appeals Tribunal (EAT), in Reaney v Kanada Jean Productions Limited ([1978] IRLR 427), closed the door to potential claimants under the Act. The EAT held (at 428) that: It is impossible for a man to become pregnant (at all events in the specific state of scientific knowledge!). His situation therefore cannot be compared to that of a woman. The concept of discrimination involves by definition an act or treatment which in the case of a woman is less favourable than that which is or may be accorded to a man.

Similarly in Turley v Allders Department Stores [1980] ICR 66 EAT (at 67) the majority of the EAT argued that ‘a pregnant woman [is] not merely a woman but a woman with child with which there [is] no male equivalent’ and, hence, found that the case had ‘an insufficient infrastructure for argument of a submission under S.1(1)(b).’ In Hayes v Malleable Working Men’s Club & Institute [1985] IRLR 367 the EAT insisted that it was not the pregnancy itself but the effect it has upon performance at work of the need to be away from the workplace that presented the significant difficulty for employers (see also the dissenting opinion of Smith in Turley v Allders Department Stores [1980] ICR 66 EAT). It is, the tribunal suggested, ‘the consequence of the pregnancy, rather than the condition itself, which provides the grounds for dismissal’ (at 367) and, by implication, the treatment of a pregnant woman should, it held, be compared to that of an ill male who also needs time away from the workplace. Whilst a slight improvement on the previous approach, in that it ensured that some women could now put forward a realistic plea under the SDA, this approach was considered demeaning to women because it was thought to characterise pregnancy as an illness rather than a positive and normal condition worthy of legal protection in its own right (see Lacey 1992: 103). It was some 15 years later, in a preliminary reference brought by a Dutch court before the Court of Justice (CoJ – was ECJ), that the possibility of bringing an action under the SDA was deemed feasible. In Dekker v Stichting Vormingscentrum voor Jong Volwassen Plus (CaseC-177/88 [1990] ECR I-3941; [1991] IRLR 27 CoJ) the CoJ was asked whether the fact that a woman was refused employment on the grounds that because she was pregnant the employer’s insurance company would not reimburse maternity benefit, as they knew of the pending claim at the time of appointment, was contrary to the Equal Treatment Directive (ETD: 76/207/EEC as amended by 2002/73/EC). Despite being recommended as the best qualified applicant for the post, she was not employed by the respondent. In its ruling the CoJ demonstrated what Ellis referred to as ‘its fundamental grasp of what the law in this area is seeking to achieve’ (Ellis 1994: 567) when it ruled (at para. 12) that: As employment can only be refused because of pregnancy to [a] woman, such a refusal is direct discrimination on the grounds of sex. A refusal to employ because of the financial consequences of absence connected to pregnancy must be deemed to be principally on the fact of pregnancy.

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Accordingly, the functioning of the ETD is not, the CoJ decided, based upon the need for a comparison of any kind to be made. As McGarry comments, this landmark case ‘had significant consequences for the employers of Member States and for the Courts’ and ‘marked an important advance for those seeking to create a culture of protective rights for pregnant workers’ (McGarry 1995: 317). However, despite the fact that this ruling made it possible for sex discrimination legislation to be of practical use where women were dismissed because of pregnancy, it quickly became apparent that the protection it offers has limits. On the very day that the CoJ gave its ruling in Dekker, the same court delivered its ruling in Hertz, (Handels-og Kontorfunktionaernernes Forbund I Denmark (acting for Hertz) v Dansk Arbejdgiverforening (acting for Aldi Marked K/S) Case C-179/88 [1990] ECR I-3979; [1991] IRLR 31 CoJ), bestowing an immediate qualification on the potential scope of the legislation in relation to dismissals which are precipitated by pregnancy-related illness. This case concerned the dismissal of a woman who had taken a considerable amount of sick leave due to a complicated pregnancy and childbirth. She was dismissed because of repeated absences after resuming employment following maternity leave. The illness originated in the pregnancy and maternity leave period and the CoJ was asked whether such a dismissal was contrary to the ETD. The Court confirmed the basic tenet of the Dekker judgment and extended it to cover dismissal as well as non-recruitment. However, in relation to this particular case, it stated (at para. 13) that ‘during the maternity leave … a woman is protected from dismissal because of her absence’ but that, ‘after that period there is no reason to distinguish a pregnancy-related illness from any other illness’. Subsequent case law has further clarified the scope of the ‘protected period’ for the purposes of the SDA (see below) but, in brief, proving discrimination when illness arises after maternity leave, depends upon whether a male employee, absent due to (a non-pregnancy related) illness for the same period of time, would have been more favourably treated. A further restriction on the scope of the protection offered in Dekker emerged in cases regarding women employed on fixed-term contracts (see in particular, Webb v EMO Air Cargo (UK) Ltd Case C-32/93 [1994] ECR I-3567 and [1994] 4 All ER 115; HabermannBeltermann v Arbeiterwohlfahrt [1994] C-421/92 ECR I-1657 CoJ. See also, Caruana v Manchester Airport plc. [1996] IRLR 378 EAT and Mahlburg v Land Mecklenburg-Vorpommern Case C-207/98 [2000] IRLR 276 CoJ). These early cases suggested that the ETD did not apply in the case of fixed-term contracts – where, for example, a woman was not recruited or dismissed when pregnancy meant that she would not be available to work during a fixed-term contract. This distinction, especially given the line of reasoning adopted in Dekker and Hertz, has been described as ‘invidious’ (Fredman 1995: 222). However, more recent developments, not least the enactment of the Fixed-Term Work Directive (99/70/ EC), means that fixed-term workers are no longer treated differently to those on permanent contracts. In Tele Danmark A/S v Handels-og Kntorfunktionfrernes Forbund i Danmark (acting on behalf of Brandt-Nielsen) (Case C-109/00) [2001] IRLR 853), the CoJ ruled that the ETD and the Pregnant Workers Directive (PWD: 92/85/EEC) applied irrespective of whether the contract was for a fixed or indefinite period (see paras 33, 43 and 44. See also, Jimenez Melger v Ayuntamiento de Los Barrios [2001] IRLR 848 CoJ, where a similar reasoning was applied in relation to non-renewal of a fixed-term contract).

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Since this important plethora of CoJ rulings (and others, discussed below) sex discrimination legislation in the UK has, since October 2005, explicitly included a section prohibiting less favourable treatment on the grounds of pregnancy or maternity leave under S3A (see also S6A which provides details of the scope of this protection). The inclusion of these sections has not been without drama as the original wording of S3A proved controversial and was successfully challenged in the High Court by the EOC (Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327). The EOC questioned the legality of the conceptual female comparator (one who was not pregnant and not on maternity leave) which had been introduced by the government in this section. This, the EOC argued successfully, constituted a regression and was contrary to the established case law, especially given that the CoJ had ruled in both Webb and Gillespie and Others v Northern Health and Social Services Board ([1996] IRLR 214) that such a comparative approach was unacceptable. The government has since indicated that it will amend the SDA in light of this ruling, and the recent Equality Act 2010, replicating this amended legislation, defines discrimination on the grounds of a woman’s pregnancy or pregnancy-related illness. Section 18(2) provides that ‘a person (A) discriminates against a woman if, in the protected period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of the pregnancy, or (b) because of illness suffered by her as a result of it’. Section 18(3) and (4) prohibit discrimination because she takes or tries to take maternity leave. The protected period is defined as beginning when the pregnancy begins and ending at the end of her maternity leave entitlement or, if she has no such entitlement, at the end of two weeks beginning with the end of pregnancy (18(6)). In line with the CoJ rulings, the need for a comparator is explicitly excluded in relation to pregnancy and maternity discrimination at work. Interestingly, the Equality Bill originally defined discrimination as occurring if the pregnant woman or new mother was treated ‘less favourably’ and this was, in turn, defined as meaning the woman being treated ‘less favourably than is reasonable’. This definition might have enabled employers to defend claims by reference to, for example, costs and inconvenience. Following objections by the EHRC, and others, the terminology was amended and the final version is less likely to seriously undermine the effectiveness of the law in this area. The desire to legislate to protect pregnant women and new mothers from discrimination at work has always proved problematic and, as these difficulties in drafting show, it still sits uneasily within the ambit of anti-discrimination legislation as a whole. Indeed, the turbulent history discussed above also reflects an embedded awkward relationship between the ideals of anti-discrimination legislation and the realities of detrimental treatment against pregnant women and new mothers at work. Issues continue to test the boundaries of anti-discrimination law and reveal both its possibilities and limitations as a realistic cause of legal action, and in the next section some key areas of continuing friction for claimants and employers are outlined.

Key Issues The explicit statement of prohibition now included in the SDA and the Equality Act reflect the significance of judicial intervention in this area of anti-discrimination law. Women are able to claim direct discrimination if, for example, they are not considered

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for a post because of pregnancy, are dismissed because of pregnancy or selected for redundancy because they have taken maternity leave or given different work upon return to work because replacements are doing that job. The scope of legal protection for pregnant women and new mothers at work is not, however, without its limits. Indeed, although the SDA and Equality Act cover workers, as opposed to the narrower category of employees, it is important to note that statutory maternity leave is only available to ‘employees’ (as defined under S203 of the Employment Rights Act 1996). Hence, the protection afforded covers non-employees (such as agency workers) only when they are pregnant and for the two weeks (mandatory) leave immediately following childbirth. Given that all employees are now entitled to 12 months’ maternity leave in total, this significantly reduces the applicability of this protection to non-employees. Some further limitations of the legislation are discussed below. First, it is important to note that whilst a woman is generally protected from discrimination during maternity leave the rights to which she is entitled during this time are not absolute. For example, the CoJ, in Gillespie, ruled that a woman is not entitled to her normal salary during maternity leave. The government, in October 2005, inserted a new S6A into the SDA to clarify what terms and conditions a woman may be deprived of during this time, without contravening the protection afforded under S3A of the SDA. It highlighted a distinction that has historically been relevant in domestic law between ordinary maternity leave, when all benefits other than remuneration were preserved, and additional maternity leave, when they were not. The new S6A was successfully challenged by the EOC in its High Court action (see above), where it was argued that the restrictions placed on claims of discrimination in relation to the additional leave period offended the doctrine of regression and should be recast so as to comply with the CoJ rulings in Lewen v Denda ([2000] IRLR 67) and Land Brandenburg v Saas ([2005] IRLR 147). This change is reflected in the Equality Act (S18(4)) which prohibits unfavourable treatment ‘because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave’, and is to be commended. Second, the case law relating to discrimination on the grounds of pregnancy-related illness provides specific protection only where the illness occurs during pregnancy or the maternity leave period. This, as stated above, was first established by the CoJ in Hertz, but it was clear that illness that occurs during and after pregnancy provides a dilemma: to impose timeframe boundaries or provide limitless protection against detrimental treatment, where the illness was pregnancy or childbirth related? The CoJ chose to interpret the ETD so that it protects a woman absent due to illness during her entire pregnancy and maternity leave, but not thereafter. Any ambiguity and confusion in relation to where the boundary had been drawn was finally laid to rest by the CoJ in Brown v Rentokil (C-394/96 IRLR [1998] 445 CoJ. See also the earlier decision of the Court of Appeal in Northern Ireland in Stephenson v FA Wellworth & Co Ltd [1997] NI CA and Handels-Og kontorfunktionaerernes Forbund i Danmark (acting for Larsson) v Dansk Arbejdsgiverforening Case C-400/95 [1997] ECR I-2757). Brown v Rentokil concerned the termination of a contract of an employee who was absent from work for various pregnancy-related reasons, following a work rule that employees exceeding 26 weeks’ continuous sick leave be dismissed. The Scottish Court of Session (IRLR [1995] 211 CS) had held that ‘it was not relevant that the precise reason for the appellant’s illness was a condition, namely pregnancy, which was capable of affecting only women’. It based its decision on a narrow interpretation of the Hertz case, suggesting that a clear distinction

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had been made between pregnancy caused dismissal per se, and dismissal because of pregnancy-related illness. It held that in the latter situation there is no sex discrimination if the female employee is treated in the same way as a male employee absent due to illness. Counsel for the claimant insisted that this case could be distinguished from Hertz because the latter had been dealing with an illness that emerged some time after the pregnancy, whereas Ms Brown’s illness arose out of and during her pregnancy. The claimant appealed to the House of Lords and it made a preliminary reference to the CoJ for further guidance. The CoJ (at para. 22) declared that it was discriminatory, contrary to the ETD, to dismiss a woman on account of her incapacity to work because of a pregnancy-related illness, stating that: Pregnancy is a period during which disorders and complications may arise compelling women to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition.

It initially appeared as if the CoJ was declaring any pregnancy-related illness dismissal, whenever it appears, to be discriminatory. However, the CoJ clarified (at para. 26) that the scope of the protection was, as suggested in earlier judgments, confined to the pregnancy and maternity leave period. It ruled that: Where pathological conditions caused by pregnancy or childbirth arise after the end of maternity leave, they are covered by the general rules applicable in the event of illness. In such circumstances the sole question is whether a female worker’s absences … are treated in the same way as a male worker’s absences, for the same duration, caused by incapacity for work; if they are, there is no discrimination on grounds of sex.

Thus, whereas pregnancy-related dismissal is an issue capable of coming within the ambit of sex equality law, these cases demonstrate a simultaneous desire to limit the scope of that protection. The Equality Act reflects this approach and crystallises the notion of a ‘protected period’ during which poor treatment on the grounds of pregnancyrelated illnesses will constitute direct discrimination. It remains that if poor treatment occurs beyond the protected period a woman would need to be able to prove that the discrimination was because of her sex and be able to make the relevant comparison. As Wynn commented in relation to the Brown ruling, but it might be applied as a general description of the CoJ jurisprudence and ongoing domestic approach to this area of law, the ‘protected period’ constitutes ‘a pragmatic decision which recognises that, for cost reasons, domestic and work roles must conform to male work patterns outside a narrowly drawn maternity period’ (Wynn 1999: 435; see also Conaghan 1998; Ellis 1998). Third, the culpability of employers in relation to pregnancy-related discrimination is intrinsically linked to the requirement of knowledge, and this severely limits the scope of protection available. There is, quite simply, no discrimination on the grounds of pregnancy if the employer was not aware of the pregnancy at the time she or he decided to dismiss the employee. The main authority for this is a rather dated EAT decision relating to a claim for unfair dismissal, but it applies in relation to sex discrimination cases too: in Del Monte Foods v Mundon ([1980] IRLR 224 EAT) the claimant had been ill on numerous

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occasions when she was dismissed. Her employers claimed to have been unaware of the pregnancy at the time they decided to dismiss her, although they were aware by the time the actual dismissal took place. The EAT concluded that: If this section is to be relied upon, it seems to us essential that it be shown that the employers knew or believed that the woman was pregnant or that they were dismissing her for a reason connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the pregnancy exists, it does not seem to us that it is possible for the employers to have as their reason for dismissal that the woman was pregnant. In a case where it is said that the reason for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it seems to us that the employers have to know the facts alleged by the employee as grounding the reason and also to know or believe that those facts relied upon are connected with the woman’s pregnancy. In summary it must be shown that the employers have either the knowledge of, or a belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if there is some other reason than the pregnancy, which is the reason for the dismissal.

A similar conclusion was reached more recently in Ramdoolar v Bycity Ltd (EAT 30/07/04 case 0236/04) where the EAT actually felt that to question a woman about the existence of a pregnancy might itself be detrimental, contrary to the Maternity and Parental Leave etc. Regulations 1999 (SI No 3312) Regulation 19. In Ramdoolar, however, the EAT conceded that an employer who suspects pregnancy and, ‘fearing the consequences’, dismisses her would be acting unlawfully. Prior to Ramdoolar, doubt had been cast upon the reasoning behind the Del Monte decision: observations by Lindsey in Heinz Co Ltd v Kendrick (EAT 2001 IRLR 144), a disability discrimination case, suggested that awareness of the symptoms of pregnancy might be sufficient to establish a connection between pregnancy and dismissal whether or not pregnancy featured in the employer’s mind. Unfortunately, this line of reasoning was not followed in Ramdoolar and has since been overruled in relation to disability discrimination too in the controversial House of Lord’s decision in London Borough of Lewisham v Malcolm ([2008] UKHL 43, HL, Baroness Hale dissenting. See Horton, 2008 for comment). Nothing in the Equality Act contravenes this approach and this silence embeds knowledge as a precondition of culpability. In summary, the current approach places the onus on pregnant employees to reveal their pregnancies, and to reveal them to the ‘right’ person (see Eildon Ltd v Sharkey ([2004] EAT case 0109/03), in order to gain legal protection. This presents a particularly difficult decision for women, the majority, who do not want to reveal their pregnancies for the first trimester, when risk of miscarriage and complications is at its highest (see further James 2009: 59–61). Overall, it is disappointing that women may be forced to prove that the employer did know of, or suspect the existence of, a pregnancy prior to the discriminatory act complained of. Anti-discrimination law alone cannot alter stereotypical attitudes or wholly prevent non-employment of women of childbearing age, or force individuals who have experienced wrongdoing to litigate and hence enforce the law where discrimination occurs (on this ‘litigation gap’ issue, see James 2009: 24–27). Legislation can however, if sympathetically drafted and applied, provide a course of action in many cases and hence a means of gaining compensation when wrongdoing occurs. In this regard, despite the limitations outlined here, it provides an important remedy for many individual women. The Equality Act promises to provide similar protection, and also to increase the powers of employment tribunals in discrimination cases to make recommendations in respect of

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all employees, not just the individual who has brought the claim, and probably left the place of work. This generic provision might help persuade employers to re-think broad policies, as opposed to simply reacting to individual claims and is, in the fight against this gendered, pervasive and damaging form of discrimination, to be commended.

Conclusion The discussion above demonstrates how the lives of pregnant workers and new mothers will forever be at odds with sex discrimination and equality laws. Pregnancy and parenting do not fit neatly into the equality model, based as it understandably is upon the need for comparators. This current law’s applicability to relevant situations will continue, at every junction, to be tested. For example, the issue of in vitro fertilisation (IVF) treatment tested the scope of the law when, in Sabine Mayr v Backerei und Konditorei Gerhard Flockner OHG (2008 IRLR 387), the CoJ was asked whether the dismissal of a woman undergoing IVF treatment contravenes the Pregnant Workers Directive. The CoJ did not feel that the Pregnant Workers Directive was relevant to the case but insisted that, if the dismissal was linked to the treatment, she could rely upon the ETD. At the time of this dismissal the woman’s ova had been fertilised but, interestingly, had not yet been transferred to her uterus. Despite this, the CoJ felt that this was a procedure that ‘directly affects only women’ and that, because of this link to her sex, her dismissal as a result ‘constitutes direct discrimination on the grounds of her sex’ (para. 30). This case demonstrates how a woman’s particular experience of pregnancy or here her attempts to become pregnant, continue to test the boundaries of the legislation. The CoJ decision is, from a pragmatic perspective, to be celebrated, but the reasoning behind the decision, which solidly grounds the protection available in terms of her gender, reveals the broadest limitation of this type of legislation: that it necessarily locates this type of discrimination as a gender issue. In doing so, it constructs all negative pregnancy and parenting–workplace relationships as ones that only impact upon (and, it implies, are caused by) women, perpetuating dominant ideologies of motherhood and fatherhood (see James 2009; see also McGlynn 2001). The scope of current sex discrimination legislation will continue to be challenged and reformed by litigation that pushes its scope so as to provide a cause of action for the thousands of women who experience discrimination of this type every year. However, progress by litigation, be it the SDA, Equality Act, ETD or any future equality legislation, is unlikely to achieve the fundamental goal of substantive, as opposed to formal, gender equality in the workplace because its framework was not designed with pregnancy, maternity or parenting (or indeed care-giving generally) in mind. It does not offer a suitable basis for consideration of the issues that impact upon the lives of working families today: we need to reconsider the difficulties and dilemmas imposed by pregnancy, parenting/ care-giving and workplace relationships for all parties, not just those women who are able and willing to bring claims under the anti-discrimination legislation. Only in the light of a more holistic reconsideration – which might include an assessment of the pregnancy and parenting–workplace relationships for mothers, fathers, carers, children, workers, employers and society as whole – can we purposefully (re)evaluate and (re)construct legal frameworks in a useful way.

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References Adams, L., McAndrew, F. and Winterbotham, M. (2005) Pregnancy Discrimination at Work: A Survey of Women, Manchester: Equal Opportunities Commission. Bistine, S.M. (1985) ‘Making room for baby’. Association Management, 37: 96–98. Collinson, D., Knights, D. and Collinson, M. (1990) Managing to Discriminate, London: Routledge. Conaghan, J. (1998) ‘Pregnancy, equality and the European Court of Justice’, International Journal of Discrimination Law, 3: 115–133. Dunstan, R. (2001) Birth Rights: A CAB Evidence Report on Maternity and Paternity Rights at Work, London: National Association of Citizens Advice Bureaux EOC (2005) Greater Expectations: Final Report of the EOC’s Investigation into Discrimination Against New and Expectant Mothers in the Workplace, Manchester: Equal OpportunitiesCommission. Ellis, E. (1994) ‘The definition of discrimination in European Community sex equality law’, European Law Review, 19: 563–580. —— (1998) ‘Recent developments in European Community sex equality law’, Common Market Law Review, 35: 379–408. Fredman, S. (1995) ‘Parenthood and the right to work’, Law Quarterly Review, 111: 220–223. Halpert, J., Wilson, M. and Hickman, J. (1993) ‘Pregnancy as a source of bias in performance appraisal’, Journal of Organizational Behaviour, 14: 649–663. Honeyball, S. (2000) ‘Pregnancy and sex discrimination’, Industrial Law Journal, 29(1): 43–52. Horton, R. (2008) ‘The end of disability-related discrimination in employment’, Industrial Law Journal, 37(4) (December): 376–384. James, G. (2004) Pregnancy Discrimination at Work: A Review, Manchester: Equal Opportunities Commission. James, G. (2007) ‘Law’s response to pregnancy/workplace conflicts: a critique’, Feminist Legal Studies, 15: 167–188. —— (2009) The Legal Regulation of Pregnancy and Parenting in the Workplace, London: RoutledgeCavendish. Lacey, N. (1992) ‘From Individual to Group?’, in Hepple, B. and Szyszak, E. (eds), Discrimination: The Limits of Law, London: Mansell. Leighton, P. and Evans, R. (2004) Pregnant Women at Work: A Survey of Small Business Employers in Wales, Manchester: Equal Opportunities Commission. Low Pay Unit (2002) A Difficult Delivery – Maternity Rights at Work, Manchester: Low Pay Unit. O’Grady, F. and Wakefield, H. (1989) Women Work and Maternity: The Inside Story, London: Maternity Alliance. McGarry, T. (1995) ‘Maternity rights in Northern Ireland and the struggle to achieve equality of opportunity’, Review of Employment Law Topics, 3(1): 309–334. McGlyn, C. (2001) ‘European Union family values: ideologies of “family” and “motherhood” in European Union law’, Social Politics, 8(3): 325–351. Woodroffe, J. and Higham, E. (2009) Alliance Against Pregnancy Discrimination in the Workplace Briefing. London: The Fawcett Society. Available from: http://www.fawcettsociety.org.uk/documents/ AllianceAgainstPregnancyDiscrimination.pdf. [accessed 25 January 2011]. Wynn, M. (1999) ‘Pregnancy discrimination: Equality, protection or reconciliation?’, Modern Law Review, 62(3): 435–447. Young, V. and Morrell, J. (2005) Pregnancy Discrimination at Work: A Survey of Employers (EOC Working Paper Series 20), Manchester: Equal Opportunities Commission.

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II Discrimination(s) in the Workplace: Gender and Sexuality

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Model Employment? The Challenges Ahead for Public Sector Employers and Unions in Tackling the Gender Pay Gap CAROLE THORNLEY AND DAN COFFEY

Introduction The notion that the state sector is a ‘model’ or preferential employer is one which is deeply rooted in the public imagination and many academic accounts. This chapter, however, shows the extent to which reality lags behind the popular mythology, and therefore the extent of challenges remaining for public sector employers and unions. In particular, it makes the case for a clear re-evaluation of the significance of gender and gender-based disadvantage in this sector, thus offering a corrective to current trends to focus on ‘diversity’ and ‘intersectionality’ which run the risk of missing the bigger picture with respect to the main schisms in material rewards and key areas for reform. Recessionary conditions may also serve to obscure the need for change. The chapter therefore discusses the need both to understand and be committed to best practice and the challenges to public sector employers and unions in seeking to do this.

Model Employment? There have long been claims on the part of the UK state (and others internationally) to be – or to aspire to be – a ‘model employer’. Whilst the particular historical usage and meaning of this concept benefit from a much deeper analysis,1 it is the case that this is normally intended to convey the impression of generosity or fairness, with respect to internal arrangements as well as relative to the private sector. If anything, there has been 1

For a full and critical analysis see Coffey and Thornley (2009, especially pp. 81–109).

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a recent renaissance of the use of model employer terminology. For example, the UK Department of Health’s policy guidance currently makes ‘the case for becoming a model employer’ as follows: There is a wealth of research evidence which demonstrates clear links between good employment practices and business outcomes. Creating an environment where staff are valued, rewarded, appropriately trained and developed, regularly appraised and properly managed has a positive impact on people who use services and their carers. Model employers are also more likely to attract and retain high-quality staff and are also more likely to have high-performing and motivated staff who are more flexible and take less time off work. For social care, People need People – the report on the outcomes of the joint Social Services Inspectorate and Audit Commission inspections (2000), found that: ‘Those councils that are performing best in service delivery and the management of performance and resources are also those who score highly on their management of workers’.2

This guidance argues that ‘being a model employer means developing and implementing the right people management practices for your workforce’, with such practices covering a wide range of issues including ‘good benefits including reward structures’ (ibid.). The model employer concept was previously included in the National Health Service (NHS) Plan in July 2000, and subsequently in new payment systems in the NHS in the 2000s. Self descriptions as ‘model employers’ can now be found widely on websites and in internal documentation for both health service Trusts and local authorities in the UK, and are frequently employed as claims to be a model employer alongside further aspirational ideals. If the concept is important in the sense of practitioner usage, it is also prevalent in modern academic accounts of public sector employment and employment relations. The majority have been relatively uncritical of the broad account of ‘model employment’, even where they see exceptions and (in particular) note that some political administrations make a marked departure from the ‘ideal’ in particular epochs (see for example, Fredman and Morris (1989a, 1989b); Farnham and Pimlott (1995); Carter and Fairbrother (1999); Bach and Winchester (2003)).3 A recent view taken on the relative position of public sector workers vis-à-vis their private sector counterparts in an influential commentary, for example, is very positive: ‘many public sector workers enjoy relatively high job security, shorter working hours … while low pay is also relatively rare’ (Bach and Winchester 2003: 286). Gender disadvantage is acknowledged, but again the prognosis is optimistic: ‘in most parts of the public services … the gender pay gap and other expressions of women’s disadvantaged position vis-à-vis men have declined over the last 20 years’ (ibid.: 294–295). The problem with such idealised accounts, however, is that they sit rather awkwardly with the key features of public sector employment – that is to say, with the basic facts – both historically and currently. While we explore historical features in some detail elsewhere (see Coffey and Thornley 2009: 82–101), we here focus on the material, and structural, realities of modern public sector employment. 2 See http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/ DH 5675761 [accessed 8 January 2008]. 3

For a full review of this literature, see Coffey and Thornley (2009).

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The first thing that would strike any objective ‘newcomer’ to the state sector is that it is a major area of employment for women. While class and race also provide important schisms within, and sources of disadvantage for, public sector employment and pay,4 it is the feminised nature of public services which is striking, and which has been much neglected in most accounts. More than five and a half million workers are directly employed in the UK state sector (Labour Market Trends 2006: 1), the majority of whom are women; in fact, around a third of all women who are employed in the economy work in the public sector. There has been increasing ‘feminisation’ of the public sector in the UK over time – from a position of just under half the workforce in 1971 (Beaumont 1992: 34–35), women now account for up to four fifths of total public sector employment.5 This compares with an employment rate for women of under half in the economy as a whole. The treatment of women in the state sector is therefore a major ‘test’ for our understanding of ‘model employer’ status. The facts suggest the need for a clear re-evaluation. First, the public sector is itself an example of gender segregation in terms of its feminisation as a whole vis-à-vis the private sector. Even so, the patterns of horizontal and vertical segregation within individual service sectors, and even within discrete ‘occupations’, are striking and embedded. The two largest sectors are health and local government, jointly accounting for some 78 per cent of all public sector employment, with 1.4 and 2.8 million workers respectively (Labour Market Trends 2004: 273) and both are highly feminised: women account for four fifths of workers in health and almost three quarters in local government (figures for England and Wales, Local Government Pay Commission (LPGC) 2003: 10–16). Within health, women are proportionately under-represented – relative to the number of women employed overall – at the top of the hierarchy and over-represented in the lower echelons. And, horizontal segregation is also apparent, with women, for example, far more likely to be employed as nurses than as ambulance workers. If we consider occupations, in nursing there is again evidence of vertical and horizontal segregation (Thornley, 2001: 97). Similarly, local government as a whole – encompassing occupations like teaching, social work, and administrative staff – exhibits vertical and horizontal segregation, especially in the largest bargaining group, Local Government National Joint Council (NJC) services, where 1.6 million workers are employed and which includes staff such as home carers, social workers and non-teaching staff in schools. Here, horizontal segregation can be extreme with overwhelmingly ‘male’ occupations such as refuse collectors and overwhelmingly ‘female’ occupations such as school cooks, for example. Both health and local government are also characterised by disproportionately high numbers of part-time workers (and temporary workers6), the great majority of whom are women. While part-time work only accounts for around a quarter of overall UK employment, it accounts for two fifths of employment in health, and almost half in local government, rising to 55 per cent for the 1.6 million workers in NJC services. Such part-time work is also concentrated in the female-dominated occupations, and relatively rare in the maledominated occupations. 4 This is in no way to diminish the importance of exploring each of these features, and in tandem – see, for example, Thornley (1996, 2001) for the health services in the UK, and Thornley (2004, 2007) for local government. However, this chapter stands as a ‘corrective’ to approaches which can tend to diminish or neglect the importance of gender per se. 5 Estimates do vary and lower bound estimates start at around two thirds of total employment, depending on source. 6

For a good discussion of gendered temporary work in the public services, see Conley (2003).

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The segregation and high levels of part-time work evidenced above reflect in unequal and low pay in the public sector. So far as full-time workers are concerned there is still a sizeable gender pay gap in the public sector, and this has been relatively sticky in recent years. Currently, the ‘internal’ gender pay gap between women and men full-time workers within the public sector stands at about 18 per cent, while the ‘external’ full-time gender pay gap between women in the public sector and men in the private sector stands at around 19 per cent, and there has been only a marginal shift in these figures over the period of New Labour.7 While this gap appears superficially better than the private sector gender pay gap, the public sector employs a relatively high proportion of women in ‘professional’ and ‘non-manual’ occupations and has a generally higher qualification level than for the whole economy. It is also the case that women in the public services have a typically mature age profile, and an above economy average length of service (see Thornley 2006: 349) – so like is not being compared with like. Moreover, the real extent of the gender pay gap in the public sector is poorly captured by considering comparisons based only on full-time workers because of the disproportionately higher numbers of part-time women workers employed. Part-time women workers typically have a much larger pro rata pay gap with male full-time workers – in the public sector as in the private sector. It is thus important to look at more disaggregated levels to see the real extent of gendered pay outcomes in different parts of the public sector and for different occupations. For example, a disaggregated independent study of local government workers (see Thornley 2003) found pay deteriorations in the 1990s and early 2000s reflecting disadvantages of class and gender – NJC workers, manual workers and women workers all fared particularly badly.8 In the health services too, more than half of all nurses, an overwhelmingly female occupation and the single largest occupation in health, have basic salary levels well below the economy-wide median, with most clustered at the lower end of the pay grades.9 Female registered nurses working full-time still earn less than the national average and considerably less than the national average for male workers; while nursing auxiliaries (NAs) and health care assistants (HCAs) have fared particularly badly (Thornley 1998, 2005). The impact of part-time work can also be extreme in particular areas: for example, the majority of part-time women in NJC local government services earned less than £11,000 basic earnings pro rata equivalent in 2002, and an estimate of the ‘real’ gender pay gap for women in NJC services, which takes proper pro rata account of the composition of the workforce, is 35 per cent, roughly twice the aggregate ‘internal’ gender pay gap for the public sector reported above (Thornley 2003a). In health too, where part-time work is most prevalent in the lower echelons, some of the lowest-paid workers (for example, HCAs) have seen relative pay deteriorate not only against male, but also against female comparators, with a sharp polarisation in pay levels and a widening of the gender pay gap (see Thornley 1998, 2005, 2008). In line with the above features, there is endemic low pay in the public sector and this is deeply interlinked with gender. More than one quarter of full-time women and up to three quarters of full-time manual women in the public sector are low paid when 7 For source and a fuller discussion of these measures see Thornley (2006). While the current figure for the internal public sector gap for 2007 stands at 21 per cent, this is calculated from a discontinuous series as the New Earnings Survey (NES) was replaced in 2004 by Annual Survey of Hours and Earnings (ASHE). 8 The ‘internal’ gender pay gap within local government is wider than the public sector aggregate gap, and the gap between NJC female workers measured against all-economy men is higher than the economy-wide gender pay gap. 9

See Thornley (1998).

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measured against the Council of Europe decency threshold using gross pay (Thornley 2006: 350). In health, around a third of nurses overall are low-paid, and almost all HCAs and NAs (Thornley 1998, 2005, 2008), while in local government, the average earnings of full-time female manual workers fall below this threshold: indeed, in NJC services the majority of staff, over 80 per cent of women and 90 per cent of part-time women, are low paid on this measure (using basic pay) (Thornley 2003a). Low pay is also prevalent in administrative and clerical and ancillary work in both health and local government. Lowpaid workers across these sectors form large pockets just above the level of the National Minimum Wage (a much lower measure than the Council of Europe measure). The facts of segregation, unequal and low pay in a highly feminised public sector suggest the need for a much more circumspect view of claims on the part of the state, or constituent parts of it, to be – or to aspire to be – a ‘model employer’; and these facts also show the importance of considering gender in its own right. They also flag up the extent of the challenges ahead, if women employed in the public sector are to receive a ‘fairer’ share of the rewards of work.

The Need for Best Practice The features above undoubtedly reflect a variety of complex causal mechanisms.10 However, the problem viewed from the perspective of employers or unions is more accessible if approached from the position that something needs to be done about the gender pay gap. We therefore first discuss why there is a pressing need to adopt best practice, and then conclude with the challenges to progress. While it is certainly possible to argue for a ‘moral’ or ‘business case’ for addressing gender inequality in the public services, it is the case that pragmatic considerations associated with sea changes in the collective bargaining and legislative/litigious context are now paramount. The formation of UNISON in 1993 through the merger of the unions National Union of Public Employees (NUPE), National and Local Government Officers’ Association (NALGO) and Confederation of Health Service Employees (COHSE)11 effected significant changes in the balance of power in significant parts of the public sector; this undoubtedly lent stimulus to its own objective appraisal of overall membership and potential for membership growth. In this respect, the union was able to take stock of a situation in which public sector employment had been feminising in previous decades and where the majority of public sector employees were now female, and where part-time work was particularly prevalent. Currently, almost three quarters of its membership are women, over one third of whom work part-time. In line with this, low and unequal pay were viewed as core issues for the new union (see Thornley 2000), along with changes in its internal democratic forms vis-à-vis women (see McBride 2001). UNISON has subsequently tended to combine a highly strategic twin-track approach to campaigns based on ‘low pay’ collective bargaining initiatives alongside ‘equal pay’ (and litigation-based) initiatives (for full detail, see Thornley 2006). 10 It is beyond the scope of this chapter to delve into a number of relevant theoretical issues, but for an early exploration of these (and for the case of nurses) see Thornley (1996). 11

For full detail on this merger and the early years of the new union, see Terry (2000).

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UNISON has had a strong impact upon new payment systems, using early campaigning for a National Minimum Wage to pursue a ‘dual strategy’ of legislation through the Labour Party and TUC while also developing a bargaining agenda to present to employers ‘to secure guaranteed minimum pay levels in the collective agreements negotiated by the union’ (Morris 2000: 158). The National Minimum Wage was viewed clearly as also providing the ‘opportunity to renegotiate structures to ensure equal pay for women members’ (ibid.: 163), and was then reflected in the single status agreements in local government in 1997 and subsequent new pay determination systems in health. Whilst the final form of these agreements undoubtedly reflected tensions between union and employer objectives, equalities influences are evident and reflect some commonality of interest between unions seeking changes and employers seeking to avoid falling foul of the law. In practice, the complexity and expense of addressing gender inequalities have made for slow progress and led to industrial relations problems – another pragmatic pressure for change. In local government, an initial failure to progress led to the rejection of two pay offers, costly industrial action, Acas-intervention and a temporary settlement through the establishment of the Local Government Pay Commission (LGPC) and a longer-term pay deal. In health, equalities and job evaluation were also major features of Agenda for Change but progress has again been slow and contentious. In both cases the funding required to address unequal and low pay remains a major issue: as UNISON have put it ‘Agenda for Change in the NHS and Single Status in local government and education have established the principle of equal pay, but there is still a long way to go before the principle is fully implemented as a reality’, (UNISON 2007). However, the litigious background of UNISON’s (and other public sectors unions’) campaigns has provided an important underpinning pressure for movement (see Thornley 2006) and recent tribunal rulings have also added impetus, whilst also proving a doubleedged sword. A major shock to the system here has been the proliferation of legal cases ‘actively’ encouraged by ‘no-win, no-fee’ lawyers, both against employers and against unions (UNISON 2007). The case Allen & others v GMB in 2006 has reverberated around the pay determination terrain. Here, the tribunal held that the General, Municipal, Boilermakers (GMB) union indirectly discriminated against female members on the grounds of their sex by recommending an ‘ill-considered’ back pay deal rather than equal pay litigation which would have been in their better interests, and also victimised those members who brought equal pay proceedings (Practical Law Company (PLC) 2006). The subsequent appeal by the GMB was overturned in July 2008.12 The impact of such cases and rulings has been significant. If both opportunities and challenges are apparent here for unions, then the recent cases have also had profound impacts upon employers. According to a piece on People Management Online: Local authorities had a 31 March deadline to reach single status pay agreements to ensure equality between the sexes, but many – particularly the larger employers – missed the deadline and could be open to legal claims. Councils are having to give up to six years’ back pay to eligible female workers as a result of agreements … Some may be holding back because of concerns that their deals with unions are not legally watertight, said LGE spokesman Richard Stokoe … (2007). 12 For a note on the subsequent appeals processes see http://business.timesonline.co.uk/tol/business/law/reports/ article4648852.ece [accessed 3 May 2009].

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A rather more nuanced account is provided by the Local Government Employers (LGE) themselves (2006). The report first acknowledges that some ten years after the signing of the original agreements, and after the findings of the Local Government Pay Commission ‘which argued that local government had an equal pay, rather than low pay, problem … so far, only 33 per cent of authorities have implemented new pay structures … this represents 25 per cent of the local government workforce’ (2006: 2). It is argued that ‘problems have arisen with financing this agreement due to back pay and pay protection issues, and the need for employers and trade unions to defend themselves against legal challenge’ (ibid.). The LGE is thus arguing, on the basis of recent cases, that cost is now no longer the sole issue: ‘legal developments have produced a situation where money alone will not solve the problem … unions and employers need to be confident that the money is being distributed in a way that is not open to challenge’. It is further noted that legal action from no-win no-fee solicitors has ‘paralysed’ the unions and that the collective bargaining process is being: further undermined by recent employment tribunal decisions … legal action has been taken against authorities, individual councillors and trade unions and is undermining the ability of local employers to negotiate … furthermore, even where negotiations are continuing, the approach has to some extent been forced on unions and is making deals less and less affordable. (Ibid.: 3)

Despite the clear challenges for unions and employers here, and employers’ arguments around a potential stasis, opportunities also present themselves for an equality agenda; on the LGE’s own account of the Allan v GMB case, the tribunal found that: The GMB rushed headlong into accepting an ill-considered back pay deal [for women], accepting the authority’s plea of poverty, there was a striking contrast between the union’s approach to pay protection [for men] compared to the assessment of the back pay offer, it should have established equal value in the pay system and then sorted out back pay. Instead the union agreed that the authority could keep back pay settlements low and then move to establishing an equal pay system. GMB (along with the authority and Acas) manipulated unsophisticated union members with alarmist information which suggested that a refusal to accept the offer would involve job losses and make them traitors to their colleagues. (Ibid.: 12)

If at one level this clearly militates against ‘sore thumbing’ and ‘fudge’ in future deals, at another it equally opens up the opportunities to focus on equal pay issues and casts a spotlight upon the real resources needed to fund equalities. There is little doubt that recent legislation – in particular, the Equality Act 2006 – and the Equality Act 2010 each reflect problems being experienced in the public sector in particular, and frustration in some parts of government,13 at the failure to address the gender pay gap.14 Such legislation adds further weight to the case for change, and to the case to be made by those with responsibility for equalities in organisations which might otherwise be recalcitrant. The price of inaction is now high and widely acknowledged 13

Though by no means all parts of government.

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As well as EU Directives.

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amongst senior practitioners and policy makers. There is also an unusual potential convergence of interests between employers and unions which offers much to build upon if approached in a spirit of a problem to be resolved.

Conclusion: Best Practice and the Challenges Ahead Tackling the gender pay gap in the public sector undoubtedly requires a much broader perspective than those typically employed, and requires movement away from ‘risk avoidance’ strategies15 to a more positive and proactive agenda. Indeed, the Gender Equality Duty (GED) contains specific duties on consulting with trade unions and addressing the gender pay gap.16 A starting point for some is the process of pay audits and review to show the extent of the problem to be addressed – across grades and not just within grades, and with due regard to the stone floor as well as the glass ceiling – and then the use of outcome based measures to evaluate new policies and procedures. There is evidence, in small pockets, of some employers working alongside unions to build much more imaginative equalities agendas covering a gamut of best practices which address all aspects of discriminatory employment practices: from recruitment and selection, through training, work/life flexibilities, and promotion. Some of the best of these go beyond narrowly construed and legalistic approaches to ‘equal value’ to look at undervaluation, truncated career paths and the possibility for creation of ‘new’ jobs which carry a more rounded views of ‘skills’ and involve ‘links and ladders’ in their construction. However, such approaches have been all too rare and frequently also deeply dependent at local levels upon a very senior ‘sponsor’ within the organisation. Far more frequently those who start out with imaginative and enlightened approaches are stymied by lack of support at different organisational levels, a position which is then entrenched by the straitjacket of financial constraints. The history of public services is littered with projects which end up delinking training and pay, and which are focused on the glass ceiling because the stone floor (where so many women are located) is so much more expensive and complex to tackle. In practice, ‘low road’ and labour substitution and even privatisation approaches have tended to predominate and have actually exacerbated the gender pay gap where they do (see, in particular, Thornley 2003b, 2006, 2008). It perhaps goes without saying that the terrain is likely to get even more challenging. Even prior to the current recession, there were global trends to liberalisation and privatisation,17 and funding constraints were already making the task of addressing 15 A temptation for employers in the past has been to make a risk analysis against the potential for litigation – these have routinely miscalculated the potential for very large and costly cases, as well as doing little to address causation underlying the gender pay gap. The public sector was (and is) highly susceptible to litigation (see, in particular, Kingsmill 2001: 7, and Local Government Pay Commission 2003: 93–94). Several ground-breaking cases were brought by UNISON from its formation involving millions of pounds of back pay (Thornley 2006: 353–354); since then a number of ‘no-win, no-fees’ lawyers have increased the number of cases sharply, with significant implications. At the time of writing (April 2010), a new tribunal ruling in local government in Birmingham has once again demonstrated the potential for costly outcomes from the viewpoint of employers and for very high pay outs to staff: see http://web.orange.co.uk/article/news/ women_win_multi_million_council_equality_case_1 16 A position which is likely to be reinforced by the new Equality Act – albeit if by integrating multiple equality strands in an echo of the academic ‘intersectionality’ approaches it also runs the risk of confusing the issue. 17 A very comprehensive review of key global trends in liberalisation, and of corporate interests (particularly USbased) in sponsoring it, is given in International Labour Organisation, (ILO) (2005/2006).

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equalities difficult. The recession, and level of public indebtedness, are both likely to intensify these pressures, and most are predicting absolute cuts in public services and/or pay and/or employment in future years. There has also been a trend in the mass media to sustain public perceptions that public servants are doing relatively well at a point when private sector workers are suffering. And electoral uncertainties at the time of writing add to this picture. This terrain is likely to prove difficult for those working for greater equalities from both the employer and union sides. But at the same time, and setting to one side the moral case that women should not suffer disproportionately from recession, the pragmatic case for best practice and ‘new model’ employment discussed in this chapter is likely to remain a reality, and is likely to do so for as long as women working in the public sector fail to get a fair deal at work. It is thus important that employers and unions keep their ‘eye on the ball’. And there is here also a role to be played by academics – the temptations inherent in ‘diversity’ and ‘intersectionality’ approaches are that the focus shifts to individuals and individual agency at the expense of collective experience and agency. While such approaches in some respects would appear to accord with the recent drift of legislation and a desire to accord equal weight to all forms of discrimination and to ‘human rights’, it is far from clear that these provide an adequate basis for understanding and change previously better met by specialist approaches. Whether this gap can be successfully breached remains a major challenge for writers in this area.

References Bach, S. and Winchester. D. (2003) ‘Industrial Relations in the Public Sector’, in P. Edwards (ed.), Industrial Relations: Theory and Practice (2nd ed.), Oxford: Blackwell, pp. 285–312. Beaumont, P.B. (1992) Public Sector Industrial Relations, London and New York: Routledge. Carter, B. and Fairbrother, P. (1999) ‘The Transformation of British Public Sector Industrial Relations from “Model employer” to Marketised Relations’, Historical Studies in Industrial Relations, 7 (Spring), 119–146. Coffey D. and Thornley, C. (2009) Globalization and Varieties of Capitalism: New Labour, Economic Policy and the Abject State, Basingstoke and New York: Palgrave MacMillan. Conley, H. (2003) ‘Temporary Work in the Public Services: Implications for Equal Opportunities’, Gender, Work and Organisation, 10:4, 455–477. Farnham, D. and Pimlott, J. (1995) Understanding Industrial Relations, London: Cassell. Fredman, S. and Morris, G. (1989a) The State as Employer: Labour Law in the Public Services, London: Mansell. Fredman. S. and Morris, G. (1989b) ‘The State as Employer: Setting a New Example’, Personnel Management, August. ILO (International Labour Organization) (2005/2006) Winners or Losers? Liberalizing Public Services, E. Rosskam, (ed.), Geneva: International Labour Office. Kingsmill, D. (2001) The Kingsmill Review, http://www.kingsmillreview.gov.uk [accessed 9 November 2005]. Labour Market Trends (2004) Labour Market Trends, July, http://www.statistics.gov.uk [accessed 12 March 2006].

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—— (2006) Public Sector Employment 2006: Seasonally Adjusted Series and Recent Trends, 114:12, 419– 438. Local Government Employers (LGE) (2006) Unblocking the Route to Equal Pay in Local Government, November. Local Government Pay Commission (LGPC) (2003) Report of the Local Government Pay Commission (kindly provided by UNISON). McBride, A. (2001) Gender Democracy in Trade Unions, Aldershot: Gower. Morris, P. (2000) ‘UNISON and Low Pay Policy’ in M. Terry (ed.), Redefining Public Service Unionism, London: Routledge, pp. 155–166. People Management Online (2007) ‘Councils’ deal fear’, http://www.peoplemanagement.com [accessed 25 June 2007]. PLC (2006) Union’s Failure to Pursue Equal Pay Litigation was Sex Discrimination, http://www. practicallaw.com [accessed 25 June 2007]. Terry, M. (ed.) (2000) Redefining Public Service Unionism, London and New York: Routledge. Thornley, C. (1996) ‘Segmentation and Inequality in the Nursing Workforce: Re-evaluating the Evaluation of Skills’, in R. Crompton, D. Gallie and K. Purcell (eds), Changing Forms of Employment: Organisations, Skills and Gender, London: Routledge, 160–181. —— (1998) A Question of Fairness: Nurses’ Pay Trends 1979–98, London: UNISON (Evidence to the Review Body for Nurses). —— (2000) ‘UNISON and Low Pay Policy’, in M. Terry (ed.), Redefining Public Service Unionism, London: Routledge, 167–174. —— (2001) ‘Divisions in Health-Care Labour’, in C. Komaromy (ed.) Dilemmas in UK Health Care, Buckingham: Open University Press, 85–107. —— (2003a) Cold Comfort: The State of Local Government Pay and ‘More Cold Comfort’, A UNISON briefing for the NJC Local Government Pay Commission, April, London: UNISON. —— (2003b) ‘What Future for Health Care Assistants: High Road or Low Road?’ in C. Davies (ed.), The Future Health Workforce, Basingstoke: Palgrave Macmillan. —— (2004) Perceptions at Work: Women and Men in Local Government, London: UNISON. —— (2005) Still Waiting? Non-registered Nurses in the NHS, an Update, London: UNISON (Evidence to the Review Body for Nurses). —— (2006) ‘Unequal and Low Pay in the Public Sector’, Industrial Relations Journal, 37:4 (July), 344–358. —— (2007) ‘Working Part-Time For The State: Gender, Class And The Public Sector Pay Gap’, Gender, Work and Organization, 14:5 (September), 458–479. —— (2008) ‘Efficiency and Equity Considerations in the Employment of Health Care Assistants and Support Workers’, Social Policy and Society, 7:2, 135 –146. UNISON (2007) ‘Equal Pay: Winning for all’, http://www.unison.org.uk [accessed 26 June 2007].

chapter

6 Pay Inequality in

Manufacturing Industry: The Case of the Printing Industry

TRICIA DAWSON

Introduction Pay inequality is a key source of legislative vulnerability for UK employers. It is clear from recent research that the gender pay gap is persistent and operates ‘across equalities areas’ (Longhi and Platt 2008); that means, despite other characteristics, gender remains a central indicator of unequal pay. The latest official statistics indicate that on average there is a 15.5 per cent gap between men’s and women’s hourly earnings and a 15 per cent gap between their weekly earnings (ONS 2010). At the same time women are becoming more aware of their rights and trade unions are increasingly supporting large scale equal pay claims to employment tribunals (The Guardian 7 April 2009; The Times 28 July 2008). The cost of ignoring pay inequality may be reaching the point where it is too high to take risks. At the same time social justice arguments for greater equality are becoming more insistent (Noon 2007; Bellamy and Rake 2005). Evidence suggests that the pay gap in the private sector is higher than that in the public sector (Kingsmill 2001). It is also claimed that at the current rate of progress it will be 2065 before women achieve pay equality (Bellamy and Rake 2005: 30). Organisations clearly need to consider how they might avoid legal penalties while delivering greater pay equality for women in manufacturing industry. The Equality Act 2010 aims to tackle some of the issues raised by this printing industry case study but, as will become clear, it may not be sufficient to result in a significant improvement in the pay gap. The case study presented here builds on research conducted in many different sectors (for example, Cockburn 1983; Burchell et al. 1994; Colling and Dickens 1989; Bradley 1999) and reveals parallels with the problems experienced by women across industry in accessing well-paid jobs and getting paid according to their skills. Using data from research conducted in the British printing industry,1 it is possible to begin to determine 1 The data was collected in 2002 and consisted of interviews with employers and trade union officials, as well as a national survey of men and women union members working in the industry from which a sample of 30 interviewees was identified.

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strategies that may help to remove the barriers that currently embed women’s low pay. First, the underlying contributing factors will be outlined before moving on to examine the links between pay determination and the valuation of women’s skills, as well as the effects of occupational segregation in limiting women’s employment choices.

Barriers to Achieving Equal Pay Because the valuation of work has been largely explained by traditional demand and supply theories, women’s low pay has tended to be justified as being a simple reflection of their lower worth. This ignores evidence that in reality pay systems are not necessarily rational (Phelps Brown 1977; Brown and Nolan 1988) and tend to incorporate many social factors that undermine supply and demand, for example, existing wage structures, work organisation and related practices, the nature of technology and the responses of existing workers to these developments (Craig et al. 1984). Powerful groups of workers, usually men, have benefited often at the expense of women workers and such processes have been embedded through occupational segregation. Occupational segregation occurs in two forms: horizontal segregation leads to the sextyping of jobs, that is, the identification of particular jobs with one sex or the other, and vertical segregation leads to men dominating the top positions in the hierarchy (Beechey 1986). It is through the implementation of employment policies that the gendered division of labour has been institutionalised. Horizontal segregation is fuelled by recruitment and promotion practices that remain based on traditional gender stereotypes in manufacturing industries. So, even where women have gained similar levels of qualifications or experience to men, occupational segregation may not decrease (McEwen Scott 1994) because employers are unwilling to recruit women to non-traditional jobs. In addition, the cheapness and perceived reliability of informal recruitment methods, such as word-of-mouth recommendation, is often preferred, thereby replicating existing gender divisions in the workforce. Vertical segregation arises when ideas about suitability and acceptability impact on both recruitment and promotion so that, even in areas where women are the majority workers, it tends to be men that get promoted to supervisory roles (Craig et al. 1984: 77). Even the increase in women managers is unlikely to challenge these trends because they are forced to replicate the practices that fit a male managerial model (Connell 1983). Skill is a gendered concept that has often been used to define the jobs that women do as automatically unskilled (Phillips and Taylor 1980). This also has the effect of generating an attitude that women are largely irrelevant when work organisation is considered because they do not possess valuable skills. Thus, women become invisible and tend to be ignored, particularly when restructuring occurs, unless the restructuring requires that their jobs or pay are sacrificed. It is often assumed that women are non-technical (Cockburn 1994) and so when new technology arrives, it may either reduce the scope for women’s involvement in the new processes or actually lead to their removal in favour of the assumed technical superiority of men. Even where women remain, it has been observed that re-segregation occurs in the new processes, tending to leave them in the lowest-paid jobs. The usual means of redress is to call for more training for women but this tends to fail largely because men’s sense of ‘owning the organisation’ (Cockburn 1991) tends to

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lead them to expect preferential access to any training provided and because jobs subject to skills’ shortages tend to be male-dominated and the easiest solution is to fill them with ‘suitable male candidates’ (Women and Work Commission 2006; Dickens 2005). Furthermore, there is still a strong residual belief that it is not worth training women who may take time out for childbearing and care and certainly flexible working tends to be rare where craftwork dominates (Dex and Smith 2002). The resulting lack of qualifications supports the notion that women are simply paid what they are worth (Mincer and Polachek 1974) rather than stemming from underlying discrimination. Women do not have access to power resources in the same way that men and employers do (Bradley 1999). As a result women have been pushed into the background, rendered largely invisible through both overt and covert forms of power that tend to create a view that the status quo is natural (Lukes 2005) and cannot be successfully challenged. Frequently, women have been perceived as irrelevant to decisions on work organisation and pay determination, even when their work is central to the survival of the organisation, and this has served to embed their low pay. The system of power resources utilised here was developed from Bradley’s original schema (1999) and includes, but is not restricted to, technical power (knowledge of work processes), positional power (hierarchical position), collective power (formation of groups with common interests), legal power (utilising the law to challenge the status quo), physical power (ability to undertake heavy work), sexual power (linked to sexual harassment), symbolic power (ability to interpret aspects of work organisation and pay systems), and economic power (access to a variety of rewards). In order to tackle women’s low pay it will, therefore, be necessary to identify ways to empower women and render them visible when decisions on work organisation and pay determination are being considered.

The British Printing Industry This study focused on general and commercial printing, which covered magazines, packaging, advertising materials, security printing, business forms, books, stationery and catalogues (Gennard and Bain 1995). The industry is characterised by a large number of small and medium-sized companies with a few large multinationals dominating the sector. Each of these forms is represented in the research. Jobs in the sector were broken into three main categories: pre-press (all the work necessary to prepare material for printing); printing (setting up printing machines and printing the work); and finishing/ bindery (all the operations necessary to turn the printed product into a finished article ready for despatch). Pre-press was male-dominated despite some encroachment from women during periods of computerisation but retained its skilled categorisation; printing has always been regarded as skilled and almost totally dominated by men; and finishing was dominated by women, although the jobs denoted as skilled within this section were dominated by men. There has traditionally been little part-time working in the industry and this was also borne out by the research. Traditionally, this was a highly unionised sector, which relied heavily upon the closed shop.2 Estimates at the time of conducting the research suggested that union density was 2 The closed shop was an attempt to secure 100 per cent membership in each establishment that was union organised and was a specific objective in the union’s rule book throughout its existence and in the rule books of its constituent unions.

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still in excess of 60 per cent in this sector. The Graphical, Paper and Media Union (GPMU), the main union at the time of the research,3 was the result of merger between the Society of Graphical and Allied Trades (SOGAT) and the National Graphical Association (NGA). These two unions broadly represented the split between non-skilled and skilled workers, respectively. They were also the result of many previous mergers (see Gennard 1990; and Gennard and Bain 1995). Consequently, the NGA had few women members but retained the dominant positions in the GPMU and therefore the major impact on policy direction. Women were 17 per cent of GPMU membership. Employment in the industry was traditionally male-dominated, women constituting around a third of the industry since the 1970s but was higher, at around 38 per cent, before the Second World War. Since the 1980s there have been fluctuations around a generally declining trend for both women and men, so that by 2002 there were 193,900 men and 101,600 women employed full-time in the industry (ONS 2003). GPMU members were interviewed and surveyed for this research and the employers interviewed were members of the British Printing Industries Federation (BPIF). Those members interviewed for the research were chosen to represent a variety of characteristics, including occupation, region, company size, age, sex and pay grade. One manager out of the five interviewed was female and worked for a multinational and four of the union officials out of the fourteen interviewed were women (one of whom was retired). The results of this research reveal interesting lessons that can be learned about discrimination in the private sector, especially in view of the statement made by the Conservative Party spokesman in the final debate on the Equality Bill as it passed into law as the Equality Act 2010. Mark Harper, MP said that they did not agree with three aspects of the Bill and that if they formed the next government they would not, ‘bring those three requirements – socio-economic duty, the mistaken way in which the Government are tackling equal pay, and positive action … – into force’ (quoted in the monthly employment law newsletter, emplaw.co.uk4). Now the Conservatives are the biggest partner in the coalition government this does not bode well for improved legislation on equal pay, making this research even more relevant to the implementation of the Equality Act 2010. ‘Pay Determination and the Valuing of Women’s Jobs’, and ‘Access to Higher-Grade Jobs’, look at the effects of pay and work organisation processes on women’s pay.

Pay Determination and the Valuing of Women’s Jobs The gender pay gap in the printing industry is wider than that in Britain as a whole, women earning just 64.4 percent of male median weekly earnings (50.2 percent of median hourly earnings) (ONS 2002) when this research was conducted. Table 6.1 reveals the unequal dispersion of pay between the sexes in the industry. Over £350 per week gross pay women’s representation tailed off as men’s increased.

3 The GPMU has since become part of UNITE, following a merger of Amicus (which GPMU joined in 2004) and the Transport and General Workers Union (TGWU) in 2007. 4

At http://www.emplaw.co.uk.

Pay Inequality in Manufacturing Industry

Table 6.1

Gross pay per week for full time workers – percentages by sex

No <£50 reply Men %

73

£51– £101– £151– £201– £251– £301– £351– £401– £451– >£500 Total 100 150 200 250 300 350 400 450 500

8.4

0.0

0.0

0.5

0.3

5.8

8.1

13.8

13.5

18.5

2.9

28.2

100

Women 16.3 %

0.2

2.0

6.1

7.4

21.3

16.1

13.3

8.6

4.7

0.5

3.5

100

0.1

1.0

3.1

3.8

13.2

12.0

13.6

10.9

12.1

1.8

16.1

100

Total

12.3

Source: Survey of GPMU members 2002 (N=1216).

The printing industry pay structure was a simple one, reflecting the basic demarcation of jobs and covered by a national agreement between the BPIF and GPMU. Class 1 denoted skilled work, that is, all the jobs in pre-press, most of the jobs in printing and some in finishing; Class 2 denoted semi-skilled work in printing, primarily machine assistants; and Class 3 denoted unskilled work and related to finishing/bindery jobs. The latter was where most of the women were employed. Basic pay relativities, based on the Class 1 rate, appeared small. In fact, a number of additional payments that accrued largely to Class 1 occupations significantly widened the gap between these grades. These payments were not based on productivity but on types of machines operated and working patterns, that is, shift and overtime premiums. This pay structure continues to the present day. Women in the printing industry have fought a long battle to be considered as skilled workers. As one woman said: I have with me a list of women’s work graded class 3, the lowest. There are forty-nine different operations, and women in the course of a week’s work could be called on to do every one of them … A great many of our firms employ only two or three women, therefore, interchangeability is a must. So it is not unusual to find yourself doing a dozen or more different job operations in the course of a day’s work. (SOGAT BDC, 1976: 398)

While work organisation has changed somewhat over the years, more recent interview evidence revealed that the general tenor of this comment still holds true. However, the ability to utilise generalised assumptions about ‘women’s work’ could provide a means to justify lower pay. For instance, it has often been assumed that women do not do heavy lifting (Walby,1990) but evidence from interviewees in the printing industry suggested otherwise. A woman union official observed that ‘women were always pack horses; men have machinery for moving reels’. The experience of a woman worker confirmed this. She explained that, while men were supposed to help with heavy lifting: There can be 10 items [for feeding into machines], so the stock gets piled up far away from the machine, so you have to pick up the boxes and they can weigh up to 15–20 kilos. We should have someone to lift but with 10 or 12 machines running it’s not possible, so you do your own or get shouted at for downtime.

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As this is not an official part of their job it is easy to overlook when grading jobs. It has been observed that men may seek to justify higher pay through claims to greater skill when, in fact, strength is the issue (Cockburn 1983:174–175, 203–204). Similarly, the informal nature of women setting machines is also ignored, as earlier research also noted (Craig et al. 1984: 37; Beechey and Perkins 1987), whereas men receive a premium for this work. In both cases informality leads to invisibility. Here, managers’ positional power gives them the (symbolic) power of interpretation, allowing them to define what will count towards pay determination. Male union members may see no need to challenge this as it has preserved their own economic power in the pay hierarchy, so their collective and technical power embeds this interpretation. Furthermore, the case study revealed that men, who either have a craft apprenticeship background (whether union or management representatives) or have held positional power for many years alongside such men, dominate pay determination. This has resulted in embedded assumptions about women’s lesser worth as workers, justifying their invisibility in pay determination processes. As one manager said, ‘finishing, in your mind, is of lesser value, so you don’t pay as much’. In the private sector management often sets pay unilaterally and so equality issues may be less likely to be considered. But even where there is collective bargaining there may have been limited progress in pursuing equal pay. Under pressure from the GPMU’s Women’s Committee, the bargaining agenda regularly included items that explicitly addressed equality issues but negotiating processes ensured these seldom resulted in concrete improvements for women on the shop floor. For instance, in printing, negotiating always focused on the pay rise for Class 1 with little thought given to the consequences for those lower down the grading structure. The prioritising of bargaining agenda items tended to mean that equality issues were raised early in proceedings; met with resistance from the employers; and fell off the agenda. In any case, while many equality issues were raised over the years these never included discussions around women’s pay but tended to focus on general equal opportunities clauses, harassment and maternity rights. This reflected a union strategy of focusing on occupational segregation as the main issue rather than the undervaluation of ‘women’s work’, an approach the employers supported (see Achieving a Balance, BPIF 1988). Similarly, the employers’ focus on the ‘bottom line’ became apparent when the BPIF representative explained, ‘the business case is not sufficient in itself because of other [production] pressures’. He also characterised the union as pursuing a business case approach to equality: Most employers are well aware that the union needs to grow its membership base ... [and] are not surprised that most minority groups are on the list. The union is a business that needs to grow.

The inference was that this approach lacked the legitimacy of the traditional bargaining agenda. The power of interpretation linked with employers’ and male union members’ collective power, therefore, served to restrict the bargaining agenda, rendering issues of importance to women invisible and irrelevant, overwhelming women’s collective power to challenge these processes. Employers also reinforced gender pay inequality through three other mechanisms. On the one hand, the federation representative explained how they took advantage of union weakness to widen differentials between the predominantly men’s grades and

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the predominantly women’s grade; ‘we hoped that over time ... [differentials] would widen out’ (BPIF representative). The justification for this approach was based on false comparisons between women in printing and other industries and assumptions about ‘women’s work’. As one national official said: I think they’re [the employers] just comparing other industries where there’s unskilled workers on low pay. I don’t think it’s a … measured comparison or even one that they try to justify on the basis of similar or same work being undertaken. It’s just vis-à-vis skilled and unskilled.

On the other hand, employers also pushed for full cost recovery, which meant that all national pay deals would be self-financing. This encouraged the extension of flexibility and reduction in headcount but, as discussed in the next section, women bore the brunt of this strategy. Last, employers used the power of interpretation to identify equality issues as ‘social issues’, which tended to de-legitimise their importance in bargaining. At local level, the union failed to police the implementation of the national agreement and were rarely proactive in pursuing equality for women workers. Both employers and union officials tended to wait for women to raise issues with them that might have legal consequences. As none of the employers interviewed had faced litigation there was no pressure to address gender inequality. The woman HR director of the multinational felt that the link between pay progression and job progression would be sufficient to ensure there were no equal pay issues, thus ignoring the gendered nature of job grading and ensuring that pay inequality was embedded. This was further reinforced at local level because bargaining was usually conducted on a departmental basis and departments often aligned with the gender split in occupations (see below). Women’s legal power has been insufficient to successfully challenge the power of inaction (Lukes 2005: 68) that supports the status quo. Successful challenges have been rare given the focus on occupational segregation rather than equal pay but have arisen from three sources. In one case a woman official had challenged the operation of the national agreement on the basis that women tended to do many Class 3 occupations, which cumulatively, would equate with a higher grade in equal value terms. Occasional legal challenges on the same grounds were also successful but ad hoc rather than strategic;5 instead the aim was to settle equal pay claims through negotiation. This contrasts with the approach of UNISON in the public sector, where a combination of collective bargaining and litigation, alongside education and political campaigning has resulted in improvements for women (Thornley 2006). The other route to success has been when a respected male union official with a traditional approach to bargaining has championed specific equal pay cases. When men originating from the shop floor were seen to take these issues seriously other male workers appeared more likely to support change. This broke with men’s collective power to retain the status quo but tended to occur in circumstances where women were threatening to use their legal power. It is therefore important that interview evidence revealed women’s awareness of equal pay legislation and a willingness to use it where practicable.

5 A case involving a company in the North West and the GPMU went to tribunal but was settled by agreement to conduct a job evaluation within the company that resulted in Class 3 table hands (women) being found equal to Class 1 guillotine operators (men). However, this case was never used to challenge the BPIF agreement more widely.

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Access to Higher-Grade Jobs If getting a fair valuation for the work done is hard, getting access to higher-paid jobs is just as difficult. The case study revealed a continuation of the historical gendering of jobs.

Table 6.2 The sexual division of labour by department Pre-press Printing Finishing/bindery Other Non-response Total

Women 6.1% 4.0% 52.8% 34.2% 3.0% 100%

Men 15.3% 38.5% 23.5% 20.6% 2.1% 100%

Source: Survey of GPMU members 2002 (N=1216).

Table 6.3 The sexual division of labour within each department Women Men Non-response Total

Pre-press 26.3% 69.3% 4.4% 100%

Printing 8.9% 88.2% 3.0% 100%

Finishing/bindery 66.5% 30.9% 2.5% 100%

Source: Survey of GPMU members 2002 (N=1216).

Whether the industry is viewed by the gender splits in departments or the departmental split by gender, Tables 6.2 and 6.3 suggest that women have been effectively denied access to jobs regarded, and paid, as skilled. This has been sustained through the increased use of functional flexibility, utilising increased mechanisation of printing machines to telescope some traditional women’s work into printers’ jobs. Women’s employment has consequently reduced. The criteria for employment in skilled jobs appeared to be subject to line managers’ perceptions of suitability and acceptability. Given that line managers tended to have a craft background and that other research has identified managers’ poor record of assessing jobs dissimilar to their own (Burchell et al. 1994: 177, 180), it becomes easier to understand the continuation of women’s segregation into lower-paid jobs. As one union official made clear, ‘it was not on anyone’s [employers] radar screen’ that women would get skilled jobs, or that they might be seen as a solution to the longstanding problem of skills shortages. Recruitment was also subject to a ‘family effect’. Informal methods of recruitment including family/personal recommendations and the local union as a source of job information reinforced segregation. For instance, a woman union official explained how it was common for male craft workers to obtain jobs for their wives or partners in the bindery. Given that over 50 per cent of all survey respondents, regardless of sex, obtained

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their jobs through word of mouth recruitment, the importance of social networks in job search and in designating the ‘social composition of the workforce’ (Grieco and Whipp 1986) becomes apparent. It was also clear that these factors affected promotion as, not only did women not get access to skilled jobs, ‘but they can’t even become the supervisor of the Class 3 jobs’ (male union official). Unmonitored, decentralisation of human resource management to line managers has also been implicated in preventing increased diversity (Dickens 1997; Kirton and Greene 2005) and one HR director revealed this was a feature in the multinational she represented. She also denied that the union had a role in delivering equality, in particular, the elimination of sexual harassment, despite admitting that four such incidents had occurred in ten months. Harassment (a form of sexual power) can embed segregation because women perceive the costs of entering male dominated occupations as too risky (Cockburn 1988). Another key factor appeared to be the industry’s poor record on family-friendly employment. Interview and survey evidence indicated that women tended to leave service when they had children, take on less well paid work, and then return to the industry later in life. Full-time employment was generally required and there were few opportunities to work part-time. Additionally, the survey revealed evidence of a ‘long hours’ culture’, where only 19 per cent of women and 11 per cent of men never worked overtime. Around a quarter of both sexes worked, on average, six to nine hours extra per week. Similarly, shift working was common, with 73 per cent of men and 42 per cent of women working shifts. The evidence suggested a less than enlightened attitude to childcare among employers, with one woman declaring her company had ‘never ever worked round people with kiddies. You either accept it, or you don’t’. In another instance, a woman took maternity leave of 15 weeks and on return was placed on a lower graded machine. Additionally, some 98 per cent of respondents could not identify any help with childcare available in their companies. The case study also supported earlier evidence (Craig et al. 1984: 83) of a reluctance to train women who may take time out for childcare. This evidence reveals that employment policies are working to reinforce the status quo. Recruitment, promotion and training policies are implemented to ensure that women cannot encroach on ‘men’s work’. In part, this recognises male workers collective power, reinforcing men’s sense of owning the job (Cockburn 1991: 46). But employers are also utilising their economic, positional and collective power resources to gain the benefit of women’s cheap labour. Their ability to define the industry as mainly suitable for fulltime workers removes the need to accommodate childcare and allows for re-employing these skilled women at a later date when childcare is no longer an issue.

Conclusion: Achieving Equal Pay in Manufacturing Industry The above discussion reveals an imbalance in access to different power resources that makes it difficult for women to successfully challenge their position in the pay hierarchy. Both men and managers have been able to treat women’s contribution to production as irrelevant and thereby justify their low pay, reinforcing their apparent irrelevance by embedding occupational segregation in technological change. They have also been able

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to control the operation of pay processes, restricting negotiation to issues of occupational segregation, not undervaluation. The usual arguments for delivering equality are to stress the importance of diversity and the business case benefits (Kingsmill,2001; Women and Work Commission 2006). However, the limitations of the business case, identified elsewhere (Dickens 1997; Noon 2007), are also evident in this study; production pressures and a lack of litigation removed any compulsion to act. A systematic analysis of the barriers to equal pay evident in this case study can begin to point to measures that may provide some leverage in narrowing the pay gap more generally. Employers gained women’s cheap labour by ignoring the actual content of women’s jobs. They also utilised inaccurate comparisons with women workers in other industries, which devalued women’s work; and delegitimised equality issues through designating them ‘social’. The employer’s belief that the union was only pursuing equality at all because of its need to survive reinforced the lack of legitimacy. Meanwhile, the union’s strategic focus on occupational segregation reduced the importance of equal pay bargaining and sustained the focus on the highest paid men. As a result there was seldom a proactive approach to equality at the workplace. The lack of litigation also removed pressure from employers to act on inequality. Consequently, pay processes embedded unequal pay outcomes, especially in relation to the extra payments that constituted a major element of the pay gap. Work organisation processes further restricted the scope for women to earn higher pay. Recruitment and promotion processes that relied on craft-trained line managers for their implementation were unlikely to challenge the traditional criteria for acceptability and suitability that normally characterised selection. Furthermore, Grieco and Whipp’s observation (1986: 120) that family and social networks embed segregation was confirmed here. Segregation was compounded by the reorganisation of work, which also removed women’s jobs. Finally, the lack of family-friendly employment led women to self-select on the basis of whether they could successfully manage the double burden of work and domestic responsibilities. The argument that invisibility was crucial to continuing pay inequality might be expected to fall, given the passage of the Equality Act 2010. Women’s collective power has produced a successful campaign to bring much of the equality legislation together. However, the much-heralded requirement to publish pay gap data is qualified by its application to companies with over 250 employees (UNISON and Fawcett Society 2009). Many of the women in this case study will not benefit from this important change because their companies are too small to be captured by its provisions. This will be true for some 59 per cent of private sector workers (ibid.: para. 3.3). The data publication provision is also subject to regulation, rather than primary legislation. This is easier to avoid or remove than primary legislation and is therefore considerably more vulnerable to the motivation of the party in government. In any case, the above discussion makes it clear that there are already legal grounds on which to make an assault on the pay gap. The landmark case (see footnote 4) that identified equal value between a Class1 occupation and a Class 3 occupation clearly calls into question, not the national agreement itself but its interpretation. At present, the agreement will classify a job as graded Class 3 no matter how many tasks are undertaken. This ignores the cumulative effect of undertaking numerous Class 3 tasks. It is within the power of the negotiating parties to change this interpretation to take account of equal

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value as the woman official did in her successful equal pay negotiation. Furthermore, the effect of extra payments links both work organisation and pay processes and unless the provisions of the law can expose both the pay gap would remain in printing. While these are not bonuses as such, similar considerations would apply to bonus payments. It is the criteria for grading jobs as eligible for such payments that requires exposure. In this regard, forming alliances with supportive men (Colgan and Ledwith 1996) is also a necessary step. As noted in this case study, the importance of male workers identification with male union officials in gaining their consent to negotiating equal pay cannot be underestimated. Another crucial issue is the provision of family-friendly employment in the manufacturing industry. Dex and Smith (2002: 25) confirmed that where craft-working, and therefore largely male employment, predominates flexibility is rare. If this case study is replicated in other sectors, then women in manufacturing employment will require much stronger legal rights to flexible working and access to childcare that can cater for a world based on 24/7 working patterns. On this evidence, it is clear that the gender pay gap could be reduced. Practitioners could take action now in the interpretation of agreements, work and pay practices, forging alliances between women and supportive men to challenge the status quo. However, it would also require robust legal provisions to overcome invisibility – publishing pay data, would be a start but alone will not achieve a closure of the pay gap as it is the underlying pay and work organisation processes that must be exposed. Strengthening rights to flexible working and better access to affordable childcare also remain a priority. The range of power resources that men and managers have access to can only be counteracted by providing women with sources of power that allow them to challenge the status quo. This requires comprehensive and effective legal and policy developments that will only come from women’s continued campaigning.

References Beechey, V. (1986) ‘Women and employment in contemporary Britain’, in Beechey, V. and Whitelegg, E. (1986) Women in Britain Today, Milton Keynes: Open University Press. Beechey, V., and Perkins, T. (1987) A Matter of Hours: Women, Part-time Work and the Labour Market, Cambridge: Polity Press. Bellamy, K. and Rake, K. (2005) Money, Money, Money: Is it Still a Rich Man’s World? An Audit of Women’s Economic Welfare in Britain Today, London: Fawcett Society. Bradley, H. (1999) Gender and Power in the Workplace, Basingstoke: Macmillan. British Printing Industries Federation (1988) Achieving a Balance: A Guide to Equal Opportunities in the Printing Industry, London: BPIF Joint Training Council. Brown, W. and Nolan, P. (1988) ‘Wages and labour productivity: The contribution of industrial relations research to the understanding of pay determination’, British Journal of Industrial Relations, 26: 3. Burchell, B., Elliott, J. Rubery, J. and Wilkinson, F. (1994) ‘Management and employee perceptions of skill’, in Penn, R., Rose, M. and Rubery, J. (eds) (1994) Skill and Occupational Change, Oxford: Oxford University Press. Cockburn, C. (1983) Brothers: Male Dominance and Technological Change, London: Pluto Press.

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—— (1988) ‘The gendering of jobs: workplace relations and the reproduction of sex segregation’, in Walby, S. (ed.) (1988) Gender Segregation at Work, Oxford: Oxford University Press. —— (1991) In the Way of Women, Basingstoke and London: Macmillan. —— (1994) ‘The relations of technology: What implications for theories of sex and class?’, in Crompton, R. and Mann, M. (eds) (1994) Gender and Stratification, London: Polity Press. Colgan, F. and Ledwith, S. (1996) ‘Sisters organising women and their trade unions’, in Ledwith, S. and Colgan, F. (eds) (1996) Women in Organisations, Basingstoke and London: Macmillan. Colling, T. and Dickens, L. (1989) Equality Bargaining – Why Not?, London: The Stationery Office. Connell, R.W. (1983) Which Way is Up?, London: Allen and Unwin. Craig, C., Garnsey, E. and Rubery, J. (1984) Payment Structures and Smaller Firms: Women’s Employment in Segmented Labour Markets, Research Paper No. 48, London: Department of Employment. Dex, S. and Smith, C. (2002) The Nature and Pattern of Family-Friendly Employment Policies in Britain, Bristol: The Policy Press (for the Joseph Rowntree Foundation). Dickens, L. (1997) ‘Gender, race and employment equality in Britain: Inadequate strategies and the role of industrial relations actors’, Industrial Relations Journal, 28: 4, 282–291. —— (2005) ‘Walking the talk? Equality and diversity in employment’, in Bach, S. (2005) Managing Human Resources, Oxford: Blackwell. Dex, S. and Smith, C. (2002) The Nature and Pattern ofFfamily-friendly Employment Policies in Britain, Bristol: The Policy Press (for the Joseph Rowntree Foundation). emplaw.co.uk (2010) Monthly Employment Law Newsletter, May 2010, item 2, at http://www. emplaw.co.uk. Gennard, J. (1990) NGA: A History of the National Graphical Association, London: Unwin Hyman. —— and Bain, P. (1995) SOGAT: A History of the Society of Graphical and allied Trades, London: Routledge. Grieco, M. and Whipp, R. (1986) ‘Women and the workplace: gender and control in the labour process’. in Knights, D. and Wilmott, H. (eds). Gender and the Labour Process, Aldershot: Gower. The Guardian (7 April 2009) ‘Unison Scores Second Legal Victory in a Week for Equal Pay Cases [accessed 8 April 2009]. Kingsmill, D. (2001) A Review of Women’s Employment and Pay, London: Women and Equality Unit, Cabinet Office. Kirton, G. and Greene, A. (2005) The Dynamics of Managing Diversity, Oxford: Elsevier ButterworthHeinemann. Longhi, S. and Platt, L. (2008) Pay Gaps Across Equalities Areas: An Analysis of Pay Gaps and Pay Penalties by Sex, Ethnicity, Religion, Disability, Sexual Orientation and Age Using the Labour Force Survey, Manchester: Equalities and Human Rights Commission. Lukes, S. (2005) Power: A Radical View, London: Palgrave Macmillan. Mincer, J. and Polachek, S. (1974) ‘Family investments in human capital: Earnings of women’, in Amsden, A.H. (1980) The Economics of Women and Work, Middlesex: Penguin. McEwen Scott, A. (1994) ‘Industrialization, gender segregation and stratification theory’, in Crompton, R. and Mann, M. (eds) (1994) Gender and Stratification, Cambridge: Polity Press Noon, M. (2007) ‘The fatal flaws of diversity and the business case for ethnic minorities’, Work, Employment and Society, 21: 773–784. Office for National Statistics (2002) New Earnings Survey, Analysis by Industry, London: HMSO. —— (2003) Labour Market Trends, 112: 1. ——(2008) Annual Survey of Hours and Earnings, London: The Stationery Office. Phelps Brown, H. (1977) The Inequality of Pay, Oxford: Oxford University Press. Phillips, A. and Taylor, B. (1980) ‘Sex and skill: Notes towards a feminist economics’, Feminist Review, 6.

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Society of Graphical and Allied Trades (1976) Biennial Delegate Report, 398. The Times (29 July 2008) ‘Women win landmark equal pay battle’. Thornley, C. (2006) ‘Unequal and low pay in the public sector’, Industrial Relations Journal, 37: 4, 344–358. UNISON and Fawcett Society, (2009) The Equality Bill: The Need for Amendments that Tackle Pay Discrimination, Public Bill Committee Submission. Walby, S. (1990) Theorizing Patriarchy, Oxford: Blackwell. Women and Work Commission (2006) Shaping a Fairer Future, London: Department of Trade and Industry.

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chapter

7 Career Obstacles,

Discrimination and Women’s Independent Networks: Evidence from the UK and Germany NICOLE AVDELIDOU-FISCHER

Introduction The United Kingdom and Germany are among the most financially powerful countries in the European Union (IMF 2008), with a steadily growing share of female tertiary students and a rising proportion of adult women who are economically active (OECD.Stat 2009). Both countries legislate to ensure equal pay for equal work regardless of gender, and over the last years, new strands of law have come into force, to extend the Sex Discrimination Act in the UK and assemble Germany’s scattered anti-discrimination directives into the General Act on Equal Treatment. Despite the positive developments in the public sphere and legislation, median wages for men are higher than those for women in both countries, women are concentrated in less prestigious, lower income occupations in sectors which are said (Witz and Wilson 1982) to mirror unpaid functions of women inside the home. An important factor behind their numerical growth in the labour force has been part-time work, while women retain the primary responsibility for housework and childcare. Within this contradictory context, the increase of women-only business and professional networks in the UK (McCarthy 2004) and Germany (Lenz 2008), raises the question of whether those networks are an effect of women’s growing presence in the business and professional world or of the conditions under which women’s employment takes place. Research in this area is rather sparse (Travers and Pemberton 2000) and tends to treat women-only networks as parts of the same overarching category, no matter whether they are informal corporate networks, formal long-established societies, specialised industry groups, or profession-related associations (for example, Frerichs and Wiemert 2002). Among this variety of networks, there is one form that past studies have overlooked: independent networks for business and professional women (henceforth women’s independent networks – WINs). Focusing on WINs, this chapter will provide

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insights into a neglected setting, and make an original contribution to the literature on women’s networks. Linking this to the context described above, this chapter explores how members experience their situation within UK and German labour markets and how this contributes to their decision to join WINs.

Research Methods WINs are formally organised member-based societies for working women. WINs are different from women’s professional associations because they are not industry or profession-related, and their members come from different sectors, have different occupations or hierarchical positions, and can be employees or self-employed. The term ‘independent’ means that they are not internal to any corporation, or part of any trade union or feminist organisation, and so do not demand political or ideological consensus of their members. In this study, participants were voluntary members of four WINs:

• AURORA, launched in 2000, aims to increase the number, growth and success of women-owned businesses in the UK through online business. In 2008, the network reported having 28,000 members. • BPW UK, founded in 1938, aims at helping business and professional women achieve their full potential in all aspects of their life. It has 44 local clubs around the UK and over 1,500 members. • Its German counterpart, BPW DE, dates back to 1931. Its purpose is to promote women’s development and equal treatment in employment and education, and has 38 local clubs across the country, with 1,700 members. • BFBM was founded in 1992 with the aim of promoting equality and acceptance for women in employment and society. The network consists of 16 local clubs around Germany, with over 350 members. Primary data were gathered via 55 semi-structured interviews, 10 observations of monthly local meetings and annual national conventions, and a research diary. The target population were members at all ranks and levels of organisational involvement. Their age ranged from 30 to 84 years, 21 per cent were foreign-born and 79 per cent native-born; 31 per cent had a highest level qualification from O-Levels to below bachelor degree, 34 per cent had bachelor degrees, 29 per cent masters degrees, and six per cent doctoral degrees. In terms of marital status, 18 per cent were single, 13 per cent cohabiting, 55 per cent married, 3 per cent apart-living, 10 per cent divorced, and 1 per cent widowed. About 55 per cent had no dependant family members at the time of the fieldwork, 18 per cent had 1 dependent, 22 per cent 2, and 5 per cent had 3. The participants came from a variety of sectors and had diverse occupations, 36 per cent were salaried employees, 56 per cent self-employed, 1 per cent unemployed, and 7 per cent retired.

Career Obstacles and Discrimination In interviews women were invited to reflect on their working life, and consider whether they faced any obstacles to their career advancement. Only one woman from the UK and six

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from Germany answered that they did not really experience any obstacles during their working life. Three self-employed women (one from the UK and two from Germany) named money as the only obstacle, explaining that a salaried employee has an income irrespective of performance, which is not the case for an entrepreneur. The majority of the remaining 45 women referred to more than one obstacle, which can be grouped under four separate headings. These career obstacles are by and large consistent with previous German (Falk and Fink 2002) and UK (Mallon and Cassell 1999) studies, and appear here slightly reformulated, namely:

• • • •

being female in a male context; low self-esteem/lack of confidence; work–life balance; and discrimination.

Being Female in a Male Context One third of members in the UK and half in Germany perceived the masculine organisational culture as one of the biggest obstacles for women. In management literature, organisational culture is defined as the specific collection of values and norms which are shared by people in an organisation, and function for management as a type of control that distinguishes appropriate from inappropriate behaviour (Hill and Jones 2001; Johnson and Scholles 1999). Against this gender-neutral definition, many women in this study described the organisational culture in their workplace as ‘very competitive and aggressive’, ‘very sort of macho’, ‘boys’ club atmosphere’, where ‘it can be a disadvantage if you are a capable woman’. UK members added class – alongside ethnicity and gender – with the most frequent examples being ‘public school boys’, and ‘Oxbridge buddies’ and a UK member said ‘you must be a white middle-class man to climb the hierarchy’. Self-employed women were more likely to observe such a culture, and for many this masculine culture was the chief reason they started their own business. Some salaried employees had also thought about doing the same or retiring, saying they ‘cannot take it much longer’. However, my analysis revealed that some women took this masculine culture for granted and learned ‘how to play the corporate game’. Klaudia (BPW DE) was an ambitious Financial Controller. In the first company announcement for a Chief Financial Officer post, her departmental manager refused to include her application for the position in their internal recruitment process, without telling her why. When a second call was sent out, she decided to skip her departmental manager and gave her application directly to the personnel manager and had a meeting with the Chief Executive Officer (CEO) to persuade him of her loyalty to the company and commitment to the job; shortly afterwards, she became Chief Financial Officer (CFO). ‘It doesn’t work otherwise’ she said laughing loudly. She added that ‘working in a male-dominated sector is exhausting’ and she had experienced harassment, but she considers herself to be tough and finds that at BPW she feels she can talk about these incidents with women who have experienced the same and are supportive. Nonetheless, some women in my study who were – like Klaudia – eager to change themselves in order to assimilate more effectively into the masculine culture, told me that others’ expectations can be so contradictory that it is ‘impossible to achieve them without a split personality’; the same person who appointed her because he was convinced she

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‘would be able to handle the boys’, criticised her behaviour the next day and complained that he thought ‘bringing a woman in would soften the male team’. ‘There’s no way you can do it right as a woman’ said some BPW UK members humorously, during an observation of a monthly meeting. Just as in McCarthy (2004), UK and German WIN members still perceived the old boys’ network to be a significant barrier to career advancement, because it left them less opportunity, influence, and access to information that affected their ability to get things done (Smith-Lovin and McPherson 1993). Women were not only excluded from incompany but also from ‘out-of-hours’ networking activities, many of which were based on shared masculine values and rituals of male bonding. Some WIN members told me that when they finally succeeded in joining a pub evening, ‘the guys exchanged these weird glances, didn’t know what to talk about, and said they had to go home after just one beer!’. The unequal division of childcare and housework that exists in the UK and Germany kept women at a serious disadvantage, leaving women less time to participate in ‘out-of-hours’ networking activities at work. I remember, I went for an interview to a local authority and I had an interview with the chief architect and at the end he was, sort of pretty much saying that I’d got the job. He said he thought I would really enjoy working with them because they were a pretty mixed bunch. And I said ‘oh, that’s good. How many women do you have working here?’ and he says ‘well, none’ [we laugh] his idea of a pretty mixed bunch was that some of them played golf, some played cricket, some played football, they have different sorts of cars [we laugh] […] When I used to go to management meetings, there would be 15 men and me in the room…. And in a way, I had to become one of the lads, but I didn’t share their social life…. They talked a lot about cars, they talked a lot about sport … neither of which interested me at all. They went to the pub a lot and I hate pubs, some even went to a smoking bar, which was not were I wanted to go. They had a whole life outside of the office which I didn’t participate in. Also, I had children to go back to. Although they had children, they didn’t have to go back to them. (Hannah, AURORA)

Low Self-Esteem/Lack of Confidence Half the participants from both the UK and Germany mentioned lack of self-esteem or confidence as an obstacle to their careers. They wished they had received more support and guidance from their parents, career advisers, and teachers. Carrey, a 43-year-old disabled entrepreneur, said: Lack of self-esteem … that ties in with role models, and also education. When I was at school, my career advice consisted of ‘you should go into arts’. I didn’t have someone behind me saying ‘have you specifically looked at this or that?’ My parents don’t have any business background so everything I’ve learned in the last four years, I’ve learned myself through networking. So there was no one that said ‘you can do better than this’ or ‘why don’t you apply for this job?’ I think people need that. I think women need that. Women need to know they can do more than they do, than other people do. (Carrey, AURORA)

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Several very successful entrepreneurs and some high-ranking managers in both countries tended to confuse perfectionism with low self-confidence. Stereotypical assumptions may discourage individuals from describing their behaviour in ways that deviate from traditional norms (Rhode 2003) and as women do not enjoy the presumption of ambition, precision, endurance and other attributes ascribed to men, perceivers have difficulty encoding them as such (Scott and Brown 2006). One could doubt that women in high positions lack self-esteem but for many WIN members heightened visibility meant more scrutiny and criticism (known as the ‘visibility-vulnerability spiral’ in Kram and Hampton 2003). They reported having burned themselves out ‘trying to compete with the guys’, ‘having to work ten times harder than a man’, ‘always having to prove yourself in leadership’. Overall, for most women their alleged low self-esteem was connected with specific regrets for example, an opportunity they did not grasp or a negative event they did not react to. I was often not confident enough to bring bad situations to an end … and if you wait too long one day you find yourself left behind … I experienced verbal discrimination but I didn’t know if it had to do with my gender or if others were also treated that way. So I kind of blocked myself. Though, the fact that I didn’t have a caring and encouraging family to turn to also played a part. I had to fight and try to find my way on my own. (Sabine, BPW DE)

Many WIN members felt their parents and teachers did not encourage them to establish a strong sense of self-confidence and independence the way they did with their brothers or male classmates. BPW members in both the UK and Germany actively tried to change this for the next generation of women through their involvement in BPW. Some said conditions for women have worsened since the days when ‘we couldn’t have careers or reach high positions because we weren’t allowed to earn the qualifications’. They were perplexed by the fact that girls today perform better than boys at school, make up more than half of new graduates, then ‘get pregnant and without a second thought, they interrupt or even quit their careers because it’s best for the family’. The majority felt that Young BPW (a group for members under age 35) had a role to play and should target girls while they are in the last year at school and recruit them as soon as they have entered higher education or vocational training programmes, so that girls join an encouraging and supportive community. These members encouraged girls to network at every possible chance. One quarter of members in the UK and the same proportion in Germany wished they had known earlier how important it is to have a mentor or a role model, which was something they found through their participation in WINs. I will return to this later, where mentoring will prove to be one of the key reasons for joining a women-only network.

Work–life balance Women’s increased employment participation in the UK and Germany has altered the traditional family model of the woman as full-time homemaker and carer and the man as the sole source of income, but it has not significantly altered the pattern of the gendered division of domestic work. Most WIN members in both countries confirmed being the

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ones who carry out the majority of the household chores, and had the career breaks in order to take care of children. Hence, it is not surprising that for one third of the women in the UK and for over half in Germany, reconciling work and family was one of the biggest obstacles for their career advancement. Several interviewees were aware that parental leave provisions are more generous in Germany than in the UK, but many German women felt this left them no choice but to support the male breadwinner model. As a result, the family life cycle had a stronger impact on employment patterns of German than of UK WIN members. Whereas the two countries are different with respect to their welfare regimes, they are similar in the lack of affordable childcare, and interviewees in both countries depended on female relatives for temporary or long-term help during the childrearing years. Differences between welfare and socialist regimes emerged from the German data, illustrating the socialist notions of the former East Germany that prescribed to women the role of the worker–mother. Heike (BFBM), who was born and still lives in the former East Germany said that ‘all women here have always been working – they had to’ and described how the socialist ethos, which stressed work as a civic duty, still encouraged married women’s employment. Heike was married and had three children. Nadine (BFBM), who was born in West Germany and now lives in the former East Germany, reported enjoying the extended childcare and positive public opinion of working mothers. Nadine was married and had two children. Both interviewees were successful in their jobs and felt they would have not been able to balance work and family the same way in the western states; in fact, Nadine had children after she moved to the former East Germany and although she worked continuously nobody called her ‘Rabenmutter’1 – something she knew happens in the west. Indeed, several WIN members who lived in the western states told me they had to deal with this characterisation when considering having a career break or not, for example, ‘my mother said I don’t want to be a Rabenmutter and I should take at least a short parental leave’. The way East/West cultural values and state policies can structure choices is seen in the case of Jette, who was born in the former East Germany and moved to Bavaria some years ago. She said: I fell from a highly modern society back into the Middle Ages! There is no open nursery school place here. You can try the nursery school which is currently being built, but they told me they have a 12-month waiting list. Does it mean a woman has to enrol the baby before she even gets pregnant? This is perverse! ... However, the nice side of it is that there is great support for women who would like to take care of their babies themselves. Because every woman should be able to live her life the way she chooses. If she wants five children and wants to stay at home, then she should. But she should also be respected the same way an employed woman is respected. (Jette, BFBM) 1 The literal translation of the word Rabenmutter is Raven-mother, but metaphorically the term is used in Germany to describe the uncaring mother, who abandons her children in an empty nest while she flies away to egoistically pursue a career. It was Chancellor Angela Merkel, the first woman to lead the country, who publicly condemned this centuriesold synonym for bad mother, and placed it at the centre of a new debate on the future of the German working woman (Landler 2006). To her critics, Merkel has appointed Germany’s utmost incarnation of the Rabenmutter as minister for family affairs; Dr Ursula von der Leyen, a physician and mother of seven. The peak of disapproval of her plans for rewriting Germany’s family policies so that women do not have to choose between family and career, was the TV-show ‘Hard but Fair’, where the host Frank Plasberg showed von der Leyen a fictitious newspaper front page, with a smiling photo of her and the headline ‘Mama, where were you when I was little?’ (Poelchau 2006).

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The findings of Adler and Brayfield (1996) and Braun et al. (1994) indicate that the main differences between East and West Germany are readily explainable by differences in past structural conditions. In both studies East Germans were found much more likely than West Germans to hold that ‘a working mother can establish just as warm and secure a relationship with her children as a mother who does not work’ and reject the view that ‘a pre-school child is likely to suffer if his/her mother works’.

Discrimination Discrimination can be described as the favouring of one social group over others for no justifiable reason, and is based on negative stereotypes about the other groups (Daniels and Macdonald 2005). When asked directly whether they had experienced any form of discrimination at work, only a minority of the interviewees thought they had not. Most described minor to blatant cases of gender, age, class, ethnic or racial discrimination, often interconnected. In all, these findings show a substantial awareness of discrimination. The most common reference was to gender discrimination, and in particular how male employers and colleagues were convinced they could predict a woman’s career pattern, often before they even worked with her. That means, some women told me, they did not get a job because the male boss wrongly prophesised that ‘such a good-looking girl will soon find somebody to marry and off she is!’, or ‘well, you know you are in your mid/late twenties, you are going to be stopping to have a family soon’. Other women did not get a promotion because their gender was assumed incompatible with travel: ‘it’s going to be scary for a woman travelling alone’. Consistent with the previous section, it is evident that patriarchal structures turn women’s biological and social functions as wives and mothers into obstacles and influence women’s entry into and exit from the UK and German labour markets. A salient national difference materialised in the women’s reactions to the word ‘discrimination’. For about half the respondents in Germany, discrimination was perceived as synonymous with ‘sexual harassment’, and some answered that they have never been discriminated against because they had not experienced any unwanted touching. Some explained that ‘the word discrimination is really too harsh’ and I should rephrase the interview question using the word ‘bullied’ – in German, ‘mobbed’. Several commented they are ‘not the type of person that allows [herself] to be discriminated against’. When asked how they manage this, they answered that they ‘keep calm and smile’, or they ‘just ignore it until the bully gets tired and stops’. During a BFBM observation, a member sarcastically called this ‘the ostrich approach’ and remarked that it never works: ‘its success is pure illusion; you just learn not to see it when others screw you!’ In general, 10 per cent of the interviewees in both countries were sexually harassed but only Megan (BPW UK) officially reported the incident; she found the experience very distressing, however was persuaded by a female colleague and friend to do so. The senior manager was reprimanded. Having the chance to freely voice grievances about discrimination proved to be one of the key benefits of women’s involvement in WINs – as opposed to women’s corporate networks, or independent, but mixed professional networks. This was particularly important for two respondents from the UK and two from Germany who felt ‘nobody is really listening’ inside corporations, they were discouraged from discussing these incidents by being told they ‘got it all wrong’, or ‘it wasn’t on purpose’. They narrated

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how the shock of the experience of discrimination turned into the realisation that they are all alone in this, they became disappointed and ‘finally, learned that it is better to pretend it does not happen’; this way they ‘don’t waste energy for nothing’ and their colleagues don’t call them ‘killjoy’ or ‘spoilsport’ (in German: ‘Spielverderber’) if they complain (as in Cockburn 2001). For very few respondents who were single mothers, taking discrimination seriously was not something ‘you can afford when raising children on your own’. Aronson (2003) also suggests that dealing with discrimination is a luxury, perhaps even frivolous, when compared with the struggles of combining work and single motherhood. Three quarters of the foreign-born interviewees were self-employed, and stated that experiences of race/ethnicity as well as gender discrimination were one of the reasons that eventually pushed them to start their own business. For some, however the situation has not improved as they had hoped. Because it is still the same … you still have some bankers not taking you seriously because they see a woman, and they see a black woman and don’t take you seriously in wanting to have a business. And also there have been one or two suppliers that have not responded properly –I don’t know if that is the way they normally do or it was because I am a woman. Comparing it to experiences before, I think now it’s more hurtful because now it’s my business and I have to take it, to where I want it to go. So I have to get over the hurdles, I have to jump over the hurdles by myself. When I was working for somebody else, if anybody behaved funny to me I just ignored it and I didn’t care. Now it’s my business so it’s more hurtful. (Nabinye, AURORA)

The Need for Separate Organising Seven women from the UK and five from Germany did not initially join the WIN for its gender exclusivity, but some said that over time they became convinced by its single sex nature and would not want to change it. I would have contacted them even if they were mixed. But, it developed very interestingly because we have a lot of women in our club that have – nearly all of them – the same problems I have, the same obstacles, the same thoughts … and it’s good to know that you are not alone, you know? Every one of us has or is trying to cope with family and career and everything here…. Businesswise, we learn a lot from each other. But also emotionally, it is very nice to know ‘OK, they also have the same thoughts that I do!’ Now, I find it very nice that it is only women. We help each other in a different way. (Evita, BPW DE)

However, for the majority, being with ‘women like myself, who are going through the same sort of thing’ was the reason for consciously choosing a women-only network. For Charlotte (AURORA) ‘women like myself’ were female solo entrepreneurs, for Heidi (BPW UK) they were working mothers, whereas Gaby (BFBM) was ‘the only female director in a male board’, and Sabine (BPW DE) was ‘a female technician in a male-dominated corporation’. While their sameness was seen to derive from their current marginality (Liff and Wajcman 1996) in work, the variation in the meanings they gave to ‘women like myself’ may challenge the belief in a women’s shared identity. The decision to choose an

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independent women-only, over a corporate or a mixed-sex, network was a qualitative one based on the anticipation of positive features of WINs, as well as the avoidance of negative features of mixed networks. No matter what personal and professional expectations these women had, they wanted them addressed among women and inside their own structures because they believed:

• only women can empower, support the right way; • corporations and mixed business networks have an aggressive culture; and • it is easier to identify with female role models and mentors. These three arguments were usually interrelated. For BPW UK and BPW DE womanto-woman support was seen as ‘a give-and-take’, as well as something that took place on two levels: a micro/personal and a macro/societal. Whereas for AURORA and BFBM members, support was usually on a micro/personal level. Women are able to empower each other … emotionally, mentally, professionally. This is exactly the advantage of a women-only group, they build you up. When a woman has a problem other women give her knowledge and strength to overcome it. Men have different structures. When a man has a problem other men know somebody who can fix it for him. Men play different games, they need that, but we do not. We like this communicative togetherness and the mutual promotion and empowerment. A mixed network cannot offer that; it might offer professional advice but it will not empower me. Only a women’s network can succeed in that. (Hannelore, BFBM)

BPW members too needed personal support because ‘men aren’t necessarily supportive of women going up the ladder’, but many wanted ‘something more about women’s issues’, ‘to lobby for women’, and were proud of the WIN’s national and international impact. I think that women can give each other lots of support and guidance, tell each other all the secrets that help you up the career ladder…. But I also feel that one person cannot influence, but a large group representing many of the views of working women in the country has a chance of making a noise loud enough for politicians to take note. BPW has been highly influential in shaping the 1957 Divorce Laws, which gave women rights after divorce, for the first time in English history!... That’s why I join women’s organisations. Because I don’t believe that men will assist or enable that success to happen on their own – it is too much of a threat to their established way of life…. Women’s groups can be the catalyst to make this change. (Grace, BPW UK)

In line with this, numerous participants believed that women-only groups should be as autonomous as possible so that they can raise and respond to issues that concern them without introducing ‘tension between the men and women of the company’ or having to fight against a radical image. In both countries, WIN members agreed that men feel threatened by women-only networks, make ironic comments, and tend to use this knowledge as an excuse to pigeonhole them into a radical category, thinking that they know how the members are going to act or react because they promote women’s issues. WIN members appreciated the gender separatism because they generally had enough of the masculine culture at work, and of some mixed groups they had already tried.

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Linda made clear that it is not all men she wants to avoid but the aggressive culture of male-dominated networks: It is very competitive, and I think it is very competitive because it’s male dominated. Whenever I think about them, I do see documentary footage of sharks tearing apart poor defendless [sic] fish! And I do feel quite sorry for men actually, because they have male-dominated networking events, have an entirely different feel to them, they are more aggressive, they are more competitive but not all men are like that. So the poor buggers get locked in with this huge, great, stereotype that I have. There are so many men who are not like that … and you find one sitting in the corner during a talk and you say ‘oh God, this is awful’ and they’ll go ‘Oh, yeah! what a relief’ [...] poor buggers [we laugh] Being a woman has its advantages in so many ways! (Linda, AURORA)

One third of the interviewees in the UK and a slightly higher proportion in Germany complained about the lack of role models and female mentors and about the low degree of visibility the few that exist enjoy. They criticised the media for not disseminating their pictures, views, and biographies the way they do with male politicians, entrepreneurs, leaders. Analysing the interviews for links between participants’ life-stage and view of role models, I found many women in both countries wishing they had had exposure to successful women at a young age so they would have ‘become aware of all career possibilities’ and realised that ‘not all characteristics are intrinsic’. At a later life-stage, members tended to find female role-models and mentors simply more convincing than male ones because women in business and professions were perceived to ‘face certain challenges due to being women’, and so share common experiences and values. When asked whether they had tried to find a woman mentor within their work organisation, many employees explained that ‘it is not the wisest thing to do’ because female mentoring relationships are highly visible and so under constant scrutiny; when the relationship is harmonious it is seen as ‘a conspiracy against men’, when there is an argument between the two women, ‘men rub their hands together in self-satisfaction’. Yet for some of the interviewees, cross-gender mentoring relationships were out of the question as they could ‘get interpreted as sexual’. On the basis of this and prior research (Gallese 1993), while the female mentor/female protégé relationship avoids perceived sexual tension, it entails the greatest ‘risk’ of all mentor-protégé combinations because men tend to view evidence of women forming intimate alliances as a threat. Additionally, not all women in the senior ranks are willing to become a mentor to a female protégé. Two German members portrayed the only female executive in their corporation as the hardcore career person, single and childless, who is said to envy them for being ambitious and married with children – sociologists have labelled these women Queen Bees (Rhode 2003; Wilson 1995). Joining an autonomous women-only network avoids these problems because this setting has a high concentration of successful women, and pairs can be matched in relation to professional background or personality and not just based on biological sex. Besides, female mentoring relationships are not seen as strange, and take place within a nurturing, supportive environment.

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Conclusion This chapter has presented the biggest obstacles faced by women in the UK and German labour markets, and offered evidence that the formation of WIN – and individual women’s decisions to join them – are fundamentally linked to this context. The British and German corporate world remains heavily male-dominated, and changes in legislation, positive action and other measures have not managed to disrupt the structure of gender segregation or undermine masculine organisational cultures. Consequently, many women in this study perceived the masculine organisational culture, and the reconciliation of work and family as the greatest barriers for their career advancement. Several wished they had known earlier the importance of having a mentor or a role model, which is something they discovered through their participation in WINs. Additional benefits of involvement in autonomous women-only, as opposed to corporate, or mixed professional, networks was the apparent safety to voice women’s issues and share frustrating or sexist workplace incidences to receive understanding and the reassurance that they are ‘not alone’ nor ‘going mad’. WINs are distinct from other types of networks due to their twofold separatism in terms of both gender and self-governance. Undeniably, if the social and economic structures worked effectively and women were able to construct their lives and careers in their own terms, then an independent, women-only business network would have little to offer. Nonetheless there is evidence that aggressive cultures, exclusion from the old boys’ network, and the unequal division of childcare and housework, remain a major career handicap for many women. WIN members’ separatism is informed by a recognition of the gender-specific character of experience, that is, the interrelation of their occupational and family work, and the power relations in both spheres. Briskin (1999) postulates that separate organising produces women as a constituency and, at the same time, emerges from the fact that women are already a constituency. This applies to the vast majority of WIN members, who felt bound by structural relations into the category of ‘being a woman’ and consequently different from men. Having produced an understanding of the/their world as it is, as well as how it should be, they saw potential advantages of a separation from men and their structures. Thus, the majority of members identified their gender status and the independence from working environments as significant, and as a result consciously chose WINs over other business and professional networks. To sum up, women in this study had a growing sense of their own worth; they might have experienced unfairness but did not accept it as natural or inevitable. The stories of the women were not – in Harding’s (1987) terms – victimologies. They were full of energy and hope, and became increasingly aware and confident in their ability to negotiate new structures, making them more vocal and visible within them. Listening to how women earned their degree during their parental leave, or saw the masculine corporate culture as a chance to start their own business, and become mentors in a women-only network, it becomes obvious that by joining WINs women can be effective social agents in support of themselves and of others.

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Acknowledgements I would like to express my gratitude to the University of London Central Research Fund for the financial support to carry out the fieldwork. I am also enormously thankful to all the volunteers who showed such a lively interest in my research devoting their time to participate in the interviews and sending me abundant material on the WINs.

References Adler, M.A. and Brayfield, A. (1996) East-West Differences in Attitudes about Employment and Family in Germany. The Sociological Quarterly, 37(2): 245–260. Aronson, P. (2003) Feminists or “Postfeminists”?: Young Women’s Attitudes Toward Feminism and Gender Relations, Gender and Society, 17(6): 903–922. AURORA (2008) Aurora. Credibly Connecting Companies with Communities., from source http://www. auroravoice.com/ [accessed 1 July 2008]. Braun, M., Scott, J. and Alwin, D.F. (1994) Economic Necessity or Self-Actualization? Attitudes Toward Women’s Labour-Force Participation in East and West Germany, European Sociological Review, 10(1): 29–47. Briskin, L. (1999) Autonomy, Diversity, and Integration: Union Women’s Separate Organizing in North America and Western Europe in the Context of Restructuring and Globalization, Women’s Studies International Forum, 22(5): 543–554. Cockburn, C. (2001) Equal Opportunities: the Short and Long Agenda, Industrial Relations Journal, 20(3): 213–225. Daniels, K. and Macdonald, L. (2005) Equality, Diversity and Discrimination: A Student Text, London: Chartered Institute of Personnel and Development. Falk, S. and Fink, S. (eds) (2002) Frauen und Macht: Anspruch oder Widerspruch?, [Women and Power: Requirement or Contradiction?] Frankfurt: Accenture. Frerichs, P. and Wiemert, H. (2002) ‘Ich gebe, damit du gibst’. Frauennetzwerke – Strategisch, Reziprok, Exklusiv, [‘I give, so that you give’. Women’s Networks – Strategic Reciprocal, Exclusive], Opladen: Leske + Budrich Verlag. Gallese, L.R. (1993) Do Women Make Poor Mentors?, Across the Board, 30(6): 23. Harding, S. (1987) Is There a Feminist Method?, in Harding, S. (ed.) Feminism & Methodology, Bloomington: Indiana University Press and Open University Press. Hill, C.W.L. and Jones, G.R. (2001) Strategic Management Theory: An Integrated Approach, Boston: Houghton Mifflin. IMF (2008) World Economic Outlook (Database), Washington, DC: International Monetary Fund. Johnson, G. and Scholles, K. (1999) Exploring Corporate Strategy, London: Financial Times Prentice Hall. Kram, K.E. and Hampton, M.M. (2003) When Women Lead: The Visibility – Vulnerability Spiral, in Ely, R J., Foldy, E.G. and Scully, M.A., Reader in Gender, Work, and Organization The Center for Gender in Organizations & Simmons School of Management (eds), Oxford: Blackwell Publishing. Landler, M. (2006) Quoth the Raven: I Bake Cookies, Too, The New York Times, 23 April. Lenz, I. (2008) Die Neue Frauenbewegung in Deutschland: Abschied vom Kleinen Unterschied. Eine Quellensammlung, [The New Women’s Movement in Germany: Farewell to the Small Difference. A Collection], Wiesbaden: VS Verlag für Sozialwissenschaften.

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Liff, S. and Wajcman, J. (1996) ‘Sameness’ and ‘Difference’ Revisited: Which Way Forward for Equal Opportunity Initiatives?, Journal of Management Studies, 33(1): 79–94. Mallon, M. and Cassell, C. (1999) What do Women Want? The Perceived Development Needs of Women Managers, Journal of Management Development, 18(2): 137–152. McCarthy, H. (2004) Girlfriends in High Places: How Women’s Networks are Changing the Workplace, London: Demos. OECD.Stat (2009) Statistics Portal, http://webnet.oecd.org/wbos/index.aspx. [accessed 8 January 2009]. Poelchau, N. (2006) Die Rabenmutter [The Raven-mother], Süddeutschen Zeitung, 26 January, Munich. Rhode, D. (2003) The Difference ‘Difference’ Makes, in Ely, R.J., Foldy, E.G. and Scully, M.A. (eds), Reader in Gender, Work, and Organization, The Center for Gender in Organizations & Simmons School of Management, Oxford: Blackwell Publishing. Scott, K.A. and Brown, D.J. (2006) Female First, Leader Second? Gender Bias in the Encoding of Leadership Behavior, Organizational Behavior and Human Decision Processes, 101(July): 230–242. Smith-Lovin, L. and McPherson, M.J. (1993) You Are Who You Know: A Network Approach to Gender, in England, P. (ed.) Theory on Gender / Feminism on Theory, New York: Walter de Gruyter, Inc. Travers, C. and Pemberton, C. (2000) Think Career Global, but Act Local: Understanding Networking as a Culturally Differentiated Career Skill. in Davidson, M.J. and Burke, R.J. (eds) Women in Management: Current Research Issues, vol. 2, London: Sage Publications. Wilson, F.M. (1995) Organizational Behaviour and Gender, New York: McGraw-Hill Publishing Co. Witz, A. and Wilson, F. (1982) Women Workers in Service Industries, Service Industries Journal, 2(2): 40–55.

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chapter

8 Creating Inclusive

Organisations: What do Lesbian, Gay and Bisexual Employees in the Private Sector Think Makes a Difference?

FIONA COLGAN AND AIDAN McKEARNEY

Introduction Sexual orientation is an issue of growing importance for organisations. It has become an important source of employee, client and customer diversity, as people increasingly feel able to self-identify as lesbian, gay or bisexual (LGB) in society and in the workplace. The legislative and policy framework concerning equality and discrimination on grounds of sexual orientation has been undergoing a transformation across Europe since the introduction of the European Employment Equality Directive (2000) (Waaldijk and Bonini-Baraldi 2006). As a result, organisations have begun to include sexual orientation in their equality and diversity policies. It is argued that this is long overdue on social justice grounds given that research has long shown that LGB people experience discrimination and harassment at work (Day and Schoenrade 2000; Colgan et al. 2007). In addition, employers increasingly see a business case for developing good practice around sexual orientation at work (Trau and Hartel 2004; Stonewall 2008a). However, despite a liberalisation in social attitudes and more comprehensive anti-discrimination legislative framework, LGB people may still experience barriers within organisations (Colgan et al. 2006). This chapter examines organisational good practice in Britain following the introduction of the Employment Equality (Sexual Orientation) Regulations which became law in December 2003. This legislation made it unlawful for the first time to discriminate in

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employment on grounds of sexual orientation.1 The 2004 Workplace Employee Relations Survey (WERS) suggests that progress has been made on the development of written equality/diversity policies on sexual orientation within British workplaces. According to WERS, the major changes in coverage since 1998 have concerned the new statutory antidiscrimination grounds: sexual orientation (71 per cent increased from 56 per cent in 1998), religion (82 per cent increased from 72 per cent in 1998) and age (69 per cent increased from 61 per cent in 1998) (Kersley et al. 2006). However, although this indicates progress on paper, little research has been done in the lead up to the Equality Act 2010 to identify whether this changing policy is leading to changing practice within organisations. Existing research on organisational good practice and sexual orientation in Britain has in the main focused on the public sector which has been seen as a ‘pioneer’ in sexual orientation equalities (Palmer 1993; Carabine and Monro 2004; Colgan et al. 2009). However, in recent years a range of ‘good practice’ private and voluntary sector organisations have joined public sector organisations in recognising that a commitment to equality and diversity includes engaging with the needs of LGB employees, service users and customers (Stonewall 2008b). This chapter will therefore consider organisational good practice in addressing discrimination on grounds of sexual orientation within the private sector. Although some research has been done on management knowledge and handling of sexual orientation in the workplace (Dickens, S. et al. 2009) there is little written on the perceptions and experiences of good practice from the LGB perspective. The chapter describes the research methodology, before moving on to outline the development of sexual orientation equality/diversity policy and practice within five ‘good practice’ private sector organisations. It then goes on to focus on LGB employee perceptions of the organisational initiatives which have been positive in tackling discrimination and moving from policy to practice within these five workplaces.

The Research The chapter draws on a two-year study (2004–2006) across 16 public, private and voluntary case studies funded by the Higher Education European Social Fund (Colgan et al. 2006). The five private sector organisations participating in the research were all global companies although the research project focused only on the UK operation as the case study for each company. The case studies included three European-owned companies; a bank (Bankco), a communications company (Comco) and a finance company (Financeco) and two USowned companies; a car manufacturer (Carco) and a management consultancy company (Itco). The chapter is based on in-depth interviews with 65 LGB employees within these five private sector organisations and 20 in-depth interviews with management, trade union and LGB group representatives as well as access to company and trade union websites and publications.

1 The research was done prior to the introduction of the Equality Act, 2010 in the UK which repealed almost all the prior existing discrimination statutes and harmonised the provisions to give a single equality approach. Each of the equality strands including ‘sexual orientation’ and ‘gender reassignment’ are now referred to as a ‘protected characteristic’ within the Equality Act (Rubenstein, 2009). As the chapter considers the period following the introduction of the Employment Equality (SO) Regulations it focuses on sexual orientation and not on transgender issues. However, some of the organisations participating in this research had chosen to adopt policies and establish groups that are inclusive of lesbian, gay, bisexual and trans people (LGBT).

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In order to overcome difficulties in negotiating research access, we focused on organisations perceived as ‘good practice employers’ by employers’ organisations, trade unions and LGB groups. All of the private sector organisations that participated in the research were members of the Stonewall Diversity Champion’s programme (Stonewall 2006).2 Three were unionised; Bankco, Carco and Comco. Research on LGB issues is a sensitive area of research in the UK and the ‘hidden’ nature of the LGB population within organisations raises a number of methodological issues (McManus 2003; Stonewall 2007, Stonewall 2008c). We used multiple access routes to contact LGB employees including newsletters, email or intranet sites, invitations via workplace and trade union LGBT and equality groups and LGBT campaigning groups. Nevertheless we found administrative, manual, service and skilled trades workers, women and black and minority ethnic (BME) workers were more reticent in participating in the research. Key informants within the private sector organisations suggested that these groups of LGB employees were less likely to be ‘out’ at work and thus much less likely to participate in research on sexual orientation. This is in itself a research finding and illustrates the ‘hidden’ nature of much of the LGB population even within ‘good practice’ public service organisations. The attribution of the labels ‘lesbian, gay and bisexual’ to those involved in this study was based on self-identification by respondents. Within the broader study, to supplement the qualitative data collected, we asked LGB employee respondents to complete a short survey questionnaire prior to the interview in order to collect some headline demographic and attitudinal data. Of the 65 LGB respondents interviewed within the private sector case studies, 48 (74 per cent) were men and 17 (26 per cent) were women. Over three quarters of the LGB interviewees described themselves as having managerial or professional occupations, with 35 per cent of male and 24 per cent female respondents in managerial occupations and 48 per cent of male and 59 per cent of female respondents working in professional occupations. Respondents ranged in age from 21 to over 60. One in ten (10 per cent) defined themselves as having a disability and 11 per cent self-defined as BME. Nearly three quarters (71 per cent) defined themselves as gay men, 23 per cent as lesbian and 6 per cent (2 men and 2 women) as bisexual.

Equality/Diversity Policy in the Private Sector: Introducing Sexual Orientation Interviews with management, trade union and LGBT network group representatives within each of the 16 case studies provided an overview of the history of LGB equality and diversity initiatives and key factors influencing progress on LGB issues within these organisations. Most public and voluntary sector organisations, notably local authorities, had begun to include sexual orientation alongside other equality strands on social justice grounds and as a consequence of pressure from LGBT employees, service users and trade unions as early as the mid-1980s (Cooper 2006; Colgan et al. 2009). Three of the private sector case study organisations, Carco, Comco and Itco had sought to include sexual orientation alongside other equality strands prior to 2000. Comco was the ‘pioneer’ in that 2 Stonewall established the Diversity Champions Programme to bring together organisations ‘committed to tackling sexual orientation discrimination, and to sharing good practice’ (Stonewall 2006). In June 2008, there were 340 companies signed up to this initiative (Stonewall 2008b). It has also introduced an annual benchmarking tool, the Workplace Equality Index (Stonewall 2009).

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as a public sector organisation (privatised in 1984) it had introduced same-sex benefits for LGB employees following negotiations with its trade unions in 1981. It was suggested by managers in these three companies that sexual orientation had been included initially on social justice grounds and in order to be consistent with other equality strands. Financeco had begun to include sexual orientation in 2000 and Bankco had done so from 2003 onwards (Colgan and McKearney 2009). After 2000, equality policy and practice began to be developed primarily in conjunction with a business-case driven corporate diversity strategy (Colgan and McKearney 2009). This reflected the shift during the late 1980s, from a focus on social justice grounds to a focus on how valuing workforce diversity could contribute to the organisation (Kirton and Greene 2006). Interviewees within these organisations described the shift from a ‘social justice’ equal opportunities approach to a ‘business case’ diversity management approach including a change in titles and structures with an increasing focus on working with line managers within company businesses to implement diversity (Kirton and Green 2009). In each organisation, LGBT employees had pushed for the inclusion of sexual orientation within company equality and diversity initiatives. Within Bankco, Carco and Comco, the unions had also pressured for this extension. Ward and Winstanley (2004) suggest that where US subsidiaries have moved to include sexual orientation within diversity policy in the UK, many UK and European-owned competitors have been keen to follow suit. This seemed to apply to Financeco (2000) and Bankco (post-2003) who ‘added on’ sexual orientation when they adopted a diversity approach. This appeared to be in part to respond to demands from LGBT employees and also to ‘keep up’ with what was perceived to be ‘good practice’ amongst their competitors within the finance and banking sector. Although UK legislative changes were acknowledged to have had some impact on the private sector case study organisations, the management respondents identified corporate business objectives as the major drivers shaping diversity policy and practice. Workforce diversity and inclusion were key to the development of sexual orientation equality work within their organisations, and managers in four of the private sector organisations (Carco, Comco, Financeco and Itco) took the view that the introduction of the Regulations in 2003 and the Civil Partnership Act (2004), had made little difference as they were already ‘ahead of the game’ in terms of policy and practice on sexual orientation. The exception was Bankco, where managers admitted that prior to the introduction of the Regulations the organisation had been cautious in its approach to sexual orientation within its diversity policy and practice. However, by 2005, they said the company had felt able to act more proactively both in response to the legislation, pressure from LGBT employees and the trade union and were now keen to ‘catch up’ with the ‘LGBT-friendly’ initiatives its competitors had developed. This is an area where we have looked for compliance and our policies and frameworks have supported that, but I’d have to say we have probably not gone into exceeding in best practice [...] as is more common for us in relation to other pieces of employment legislation … there is a kind of standard process we go through with any piece of employment legislation, we are doing it at the moment for the age discrimination legislation and we are doing it for civil partnerships … we do that gap analysis for all our processes and practices whether it’s reward, whether it’s pay, even down to like forms, things like that … (HR manager, Bankco)

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The private sector development of a business-driven diversity policy and the business benefits in recognising and valuing the LGBT community was most clearly articulated by Comco as exemplified in this policy. Promoting the empowerment of gays, lesbians, bisexual and transgender people in the workplace has been a key initiative within the company for many years. Our efforts to be completely inclusive have not only helped create a dynamic workforce but also opened up new markets to us. We have created a more open and hospitable environment to accommodate all sexual orientations, gender identity or expression. (Comco policy, 2006)

At the time of the research, all five of the private sector case study organisations were members of Stonewall’s Diversity Champion’s programme and had developed policy in line with Stonewall’s guidelines for employers (2005), which include the following good practice points (Stonewall 2005):

• • • • •

Written equality/diversity policy which includes sexual orientation; diversity team that includes LGB issues; lead person on sexual orientation at Board/Chief executive level; LGBT network group; audited policies and procedures to ensure not discriminatory on grounds of sexual orientation; • diversity awareness training which includes sexual orientation; • sponsored an LGB organisation or event; and • recruited staff/advertised in UK LGB media. However, as equality research points to the ‘implementation gap’ which too often exists between equality/diversity policy and practice (Dickens, L. 1999; Hoque and Noon 2004; Dickens, L. 2005; Walsh 2007), this chapter will now consider LGB respondent perspectives on sexual orientation policy and practice within these five organisations.

Moving from Policy to Practice: An Implementation Gap? LGB respondents in all 16 case study organisations were asked if they thought that their employers were LGB-friendly in terms of policy and practice. A majority (81 per cent) strongly agreed/agreed that their employer was LGB-friendly in policy and two thirds (63 per cent) strongly agreed/agreed that their employer was LGB-friendly in practice. In general, therefore the case study employers were seen as LGB-friendly in policy and practice by the majority of LGB respondents. However there was some evidence of a perceived ‘implementation gap’ by respondents, which was slightly greater in the private sector. Although 83 per cent of private sector respondents thought their employer was LGB-friendly in policy, only 60 per cent thought that this was the case in practice. The gap was slightly smaller in the public sector, where 78 per cent of LGB respondents agreed their employer was LGB-friendly in its employment policies and 63 per cent agreed that this was the case in practice (Colgan et al. 2007).

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Although LGB respondents broadly agreed their employers were ‘ahead of the game’ relative to other employers when it came to sexual orientation equality policy and practice, most valued and felt empowered by the introduction of the Regulations. Nearly two thirds (63 per cent) of LGB private sector respondents said the Regulations had made it more likely that they would take up a grievance about LGB discrimination if necessary within their organisation.

Moving Forward: What do LGB Workers Think Makes a Difference? Respondents discussed a range of corporate policy initiatives which they believed had been or could be effective in addressing the perceived ‘implementation gap’ within organisations. Each is discussed in more detail below:

• • • • • • • • • • • • • • •

Set up and resource an LGBT network group; appoint diversity champions; workplace campaigns highlighting organisation benefits of diversity and inclusion; anti-discrimination/awareness training (including sexual orientation); enforcement of policy; integration of diversity into job roles, performance management and appraisal systems; promotion of LGBT-friendly policy and benefits; greater use of intranet/web pages to reach those LGB people not ‘out’; more ‘out’ LGBT role models; LGBT mentoring system; LGBT recruitment and induction initiatives; sexual orientation monitoring; benchmarking (UK and international); sponsorship of external LGBT events; and marketing to LGBT businesses and individuals.

Establishment of LGBT Groups and Networks This was seen by LGB employees across private, public and voluntary sectors as a key initiative and an important signal of support from the organisation for LGB employees and LGB issues. In Bankco, Carco and Comco trade union LGBT group members worked with the company established LGBT groups. These groups had a range of roles to play both in relation to the needs of individual LGB workers and as agents for organisational change. All 16 of the case study organisations had LGBT groups but the private sector groups had access to more sophisticated intranet and electronic facilities. They operated not just at a national but an international level in terms of memberships across national boundaries and within corporate diversity structures. LGB respondents in the private sector thought it was important that groups and LGB people taking on leadership positions within them were adequately resources and supported within corporate structures. I think probably the pivotal thing they did was the creation of the network group. Not necessarily because it gives you a social group that you can go and mix with. But it does mean that you

C r e a t i n g I n c l u s i v e O r g a n i s a t i o n s 103 have a feeling that there is a point within [the company] that you can go to if you need to and you know that that group is supported by [the company]. And I think around that they have actually done quite a lot of things such as they do organise social events but when the partnership legislation went through they arranged a presentation [...] and they had someone there from HR who was explaining what (the company) would be doing to change its HR policies to fit in with this. (Gay man, Comco)

Diversity Champions Diversity Champions with specific responsibility for sexual orientation had been appointed in the five private sector case study organisations. This was primarily an initiative in the private sector although it had begun to spread to the public and voluntary sectors. Those appointed held executive positions within the global corporate businesses and were not necessarily lesbian, gay or bisexual themselves, in some cases this was seen as an advantage because they were perceived as dispassionate which lent credibility to their role. Private sector organisations had begun to formally recognise the importance of ‘straight allies’ in key positions who worked with Diversity managers and LGBT network groups to ensure policy and practice moved forward (Gay man, Comco). LGB respondents thought it was important for diversity champions to be sufficiently senior in organisations to enable them to speak and act with authority and act as role models for other managers.

Workplace Campaigns Highlighting Organisational Benefits of Diversity and Inclusion There was some support for a business case for the inclusion of sexual orientation in corporate policy from some LGB private sector respondents. However there was some cynicism expressed about this by others. It was agreed that mainstreaming diversity could only work if it were continuously embedded in corporate mission and values and reinforced by internal and external educational/advertising campaigns. However, respondents emphasised the need to name ‘sexual orientation’ alongside other diversity strands to ensure it was given the same priority although it was recognised that within a global context this raised certain challenges: They need to include sexual orientation and they kept bringing out policies without including it. And I kept saying ‘no, this is not the same’, and they would say ‘no, it is the same’. But you’ve got to stipulate sexual orientation, it’s very important to gay and lesbian people working for [Carco]. If you don’t stipulate sexual orientation it doesn’t include us. (Gay man, networking group, Carco)

Anti-Discrimination and Awareness Training There were contrasting views as to the value of mandatory training on diversity. On the one hand it was suggested that unless training was mandatory many people, particularly those who most needed it would opt out. On the other hand it was argued that mandatory training could lead to a ‘tick-box’ approach to policy implementation with little impact on culture and attitudes in practice. However there was also a strongly

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held view from private sector LGB respondents that diversity awareness training which specifically included sexual orientation was crucial particularly if the range of ‘managerial barriers’ identified were to be tackled and progress on implementation was to be made (Colgan et al. 2006). I think maybe the other thing that [the company] could do … is to actually put managers through some kind of training where people who are out are willing to talk about their experience of being out. Because I think most people do not understand what it means to go through the whole thing of questioning your sexuality and coming to terms with that and having to tell people and having to out yourself every time somebody asks you about your husband or your opposite sex partner … I think that there needs to be some awareness training to say, you know, think about how you react to people. Think about the difficulties that people can be going through. (Lesbian, Financeco)

Enforcement Barriers Major concerns were expressed about the enforcement of policy within private sector organisations. First, respondents voiced strong concerns about the way in which organisations primarily relied on LGB people coming forward and ‘whistle blowing’ by taking out a grievance before taking action on homophobic behaviour and the burden and risk of exposure that this placed on individuals experiencing harassment and discrimination. Second, there was a view amongst some respondents that organisations needed to take a firmer line with those who were unwilling to embrace the cultural change needed to move from policy to practice in the diversity area. In particular, concerns were expressed about those who were in middle and line management positions who seemed unwilling or unable to implement diversity policy. You know, it’s a difficult nut to crack, you know, it really is but if an organisation wants to change and change its DNA, if people are unable, unwilling or uncomfortable to change fine … If you want the organisation to change manage those people out of the organisation. Don’t start kowtowing to them … Change them. You don’t necessarily have to take them completely out of the corporation but take them out of leadership roles if that’s what you want to do. And I don’t see it happening. (Gay man, Itco)

Integration of Equality and Diversity into Job Roles and Performance Management and Appraisal Systems Examples of this were the use of diversity related objectives and competencies to assess individual performance and the inclusion of equality and diversity criteria in person specifications. Private sector respondents were more likely than public or voluntary sector respondents to suggest this as a key step to motivate managers and employees and thus a key step for implementation. One example was Carco’s approach to performance management for managers:

C r e a t i n g I n c l u s i v e O r g a n i s a t i o n s 105 Our process is that at the senior level of the European Operating Committee, we work through what we would see as a diversity score card. And that talks about role modelling and leading the way for a diverse workforce, about having inclusion and respect for the environment, talks about work-life integration, talks about external partnership. And against each of those strategic areas we write down two or three strategic actions that we will seek to retrieve … [in a given year] And then those objectives are communicated through the organisation through our policy deployment process and we therefore expect each of the functions to ensure that their managers have diversity objectives around those strategic priorities. (Gay man, network group, Carco)

Promotion of LGBT-Friendly Policy and Benefits Perhaps not surprisingly given that these were ‘good practice’ organisations and the law now requires equality of treatment, a wide range of same sex benefits had been put in place within the case study organisations. However, LGB respondents thought that the level of awareness of these benefits varied considerably and the organisations could do more to provide information on these to both employees and managers.

Greater use of Intranet/Web Pages to Reach Those LGB People Not ‘Out’ One way of promoting awareness of same sex benefits and LGB equality policies was via intranet pages. Most of the organisations and groups/networks had taken steps to use this facility to set up group pages and contact lists. However, these tended to be much more advanced in the private sector organisations and were an invaluable point of contact and information particularly for LGB respondents who were reluctant to be ‘out’ at work. Improved linkages to HR sites and employee counselling resources were identified as one way of assisting LGB staff to obtain information on their terms and benefits without having to ‘out’ themselves to a manager in order to request this information.

More ‘Out’ LGB Role Models Particularly at senior levels within organisations LGB role models were seen as an important way of increasing the visibility of LGB workers’ experiences and legitimising policy. LGB respondents thought that senior LGB staff provided an important signal to LGB employees that it was possible to be ‘out’ and succeed within the organisation: I don’t think we have a lack of resources. I think what we need is more out executives as role models from the LGBT community. I think those role models are incredibly important. And you know, I’d like to think that the company will always promote the best person for the job and I don’t believe that, I don’t believe that the reason that we don’t have LGBT execs as many as we would like, especially here in Europe is because … they have been discriminated against. But I would just so love it if we could have more senior execs who are LGBT particularly in Europe. In the States they have got a plethora of them. (Lesbian, Itco)

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LGBT Mentoring Systems Similarly, mentoring initiatives were seen as a way of promoting inclusion particularly for younger LGB workers by private sector respondents: I like to see proactive encouragement and sponsorship and funding for mentoring for younger LGBT employers, people who have just come in, who maybe only just come out, struggling with their sexuality, and helping them and offering career mentoring as well. (Gay man, Itco)

LGBT Recruitment and Induction Initiatives Another way of demonstrating policy commitment suggested by respondents across the sectors was targeted recruitment advertising and initiatives. Private sector employers had more resources to do this than public and voluntary sector employers. LGB respondents were keen to see their employers advertise in the LGBT media and participate in a range of other initiatives. For example Bankco and Financeco through the Inter-bank LGBT Forum had sponsored events such as the annual LGBT careers event ‘OUT in the City’ and all five of the organisations were listed in the Stonewall’s Lesbian & Gay Recruitment Guide as good places for LGBT people to work. In addition, communicating diversity policy to all new staff via induction programmes was seen by LGB respondents as crucial to moving towards an inclusive workplace but coverage could be uneven if left to individual units or businesses within an organisation: In theory equality and diversity is part of induction and networks should be part of induction. The problem is that currently, I would say, induction is very much left to individual businesses. So I know of contact centres, where there is a great induction, the [equality] networks are all talked about.... That isn’t necessarily the case in other areas. (Lesbian, Comco)

Sexual Orientation Monitoring LGB respondents expressed a range of views about the desirability and efficacy of monitoring sexual orientation. For example concerns were expressed about the maintenance of confidentiality and what such information might be used for. On the other hand it was suggested, that in an appropriate context and if done sensitively and with consultation with the trade unions, it could provide a means of demonstrating changes in practice and understanding of the make-up of the workforce. There was evidence that where it had been introduced in this way, as at Carco and Comco, it could be seen as a positive indicator of the employer’s commitment to LGB employees and an important source of benchmarking and ‘contract compliance’ data.

Benchmarking (UK and International) Some cynicism existed about the reasons for, and implications of, benchmarking, for example through the Stonewall Diversity Index, seeing it as about improving corporate image or primarily as a tick-box exercise. However, in the private sector there was support

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on the grounds that it was the way ‘things are done around here’ (measurement and targets) and it focused corporate attention on the sexual orientation strand. At Bankco, which was perceived by its LGB employees to have lagged behind competitor banks in the sexual orientation area, those making the case for an LGBT group said it had been a useful way to encourage the bank to move forward: The first step we did was we basically did a benchmark study what other banks were doing … we started meeting all the LGBT chairs…. So we asked them what they did. (Gay man, Bankco)

On the whole, private sector respondents supported benchmarking via the Stonewall workplace equality index and felt fortunate to work in organisations that were seen as trying to move forward in the sexual orientation area: I think I have been lucky working for a company like this. I have my beefs, it’s not perfect by any means but its heart is in the right place and I think if we can help through things like Diversity Champions, share best practice with other companies it will make the UK a better place to live and work. (Gay man, Itco)

Sponsorship of External LGBT Events Organisations had sponsored pride events and a range of cultural and community LGBT events at both national and local level which was widely welcomed by LGB private sector respondents. This, plus the association of the corporate ‘brand’ with LGBT events, was viewed as positive and an extension of corporate practice to the LGBT community.

Marketing to LGBT Businesses and Individuals Although some cynicism was expressed about the business case approach underlying some of these initiatives, it was also argued that LGB workers welcomed marketing initiatives aimed at LGBT people because they provided positive and LGBT-friendly signals to the workforce generally and LGB employees in particular. However, some employees thought their organisations had been relatively slow and cautious about targeting LGB markets: I think I would perhaps like to see [the company] perhaps becoming more active in the gay market. I think gay people who work here, I think overall we can take this as a fairly gayfriendly place, I don’t think [the company] is yet using that to actually try and pitch into gay markets itself as we are a gay-friendly company. I think, Qantas has sort of done this to an extent. You can’t board a Qantas flight without being shown the Sydney Mardi Gras. (Gay man, Itco)

Conclusion This chapter considers the progress being made on the inclusion of sexual orientation within UK organisation equality/diversity policy and practice. The emerging story from

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research within five private sector good practice workplaces is that Comco began to make progress by including sexual orientation within equality policy and practice during the 1980s. Carco and Itco followed suit in the late 1990s as US policy and practice was rolled out in the UK and Bankco and Financeco from 2000 onwards. In four of the organisations, sexual orientation equalities work began prior to the introduction of the Employment Equality (SO) Regulations (2003) and the Civil Partnership Act (2004). In contrast to their public sector and voluntary sector counterparts (Colgan et al. 2009), private sector managers did not view UK legislation outlawing discrimination on grounds of sexual orientation as the most important impetus to the development of policy and practice in the sexual orientation area. The one exception was Bankco which admitted that the more positive legislative climate which has developed in the UK since 1997 (when a Labour government was elected) had encouraged it to develop its policy and practice in the sexual orientation area. Rather, the managers identified corporate business objectives as the major drivers shaping diversity policy and practice. In addition, within Comco, Carco and Itco, initially a social justice argument was combined with internal lobbying from LGBT employees, and in Comco and Carco, their trade unions had also encouraged them to develop work in the area. All five of the private sector case study organisations were members of Stonewall’s Diversity Champion’s Programme and had developed policy in line with Stonewall’s guidance to employers (2005), however it is important to note that an ‘implementation gap’ between equality and diversity policy and practice on sexual orientation was perceived by LGB respondents. The implementation gap on the sexual orientation strand within these five private sector organisations lends support to Dickens, L. (2005: 191) argument that a reliance on business arguments is likely to have ‘uneven purchase’ and even where these arguments do encourage action they may be ‘selective and partial,’ focused only on areas where business and equality and diversity needs coincide. Thus, organisational change in terms of diversity policy and practice even within ‘good practice organisations’, still may not necessarily guarantee a LGB-friendly working environment framework in the UK let alone within a more complex global organisational context (Bond et al. 2009). Although welcoming the more comprehensive protection offered by legislation in the UK, private sector LGB respondents still looked to their organisation’s management to provide proactive and effective leadership on equality and diversity issues and not treat the sexual orientation strand as the ‘poor relation’ within the organisational drive for equality and diversity. In addition to the establishment of an LGBT group, a key indicator of inclusion for LGB respondents was the extent to which homophobia (in addition to other forms of discrimination) was actively challenged at work. Respondents identified a range of promotional, attitudinal, cultural, managerial and resource and evidential barriers which they thought stopped policy being implemented in the private sector (Colgan et al. 2006). Although diversity managers and corporate diversity champions were perceived to be able to articulate and champion a business case for the inclusion of sexual orientation within corporate diversity policy and practice, this was not seen by LGB respondents to be reflected within middle and line management levels. LGB respondents felt that managers at more junior levels either lacked commitment, confidence or had not been equipped with the skills to communicate and implement sexual orientation diversity policy which research has shown to be a persistent explanation for the gap between policy and practice in the sexual orientation (Dickens, S. et al. 2009) and broader diversity areas (Dickens, L. 2005).

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Nevertheless, the view expressed by a majority of the LGB respondents from the good practice private sector organisations was that they were ‘lucky’ to work in what were perceived to be LGBT-friendly organisations. In addition to identifying the barriers above, LGB respondents underlined the importance of establishing and resourcing an LGBT group and identified a range of communication, recruitment, learning and development, enforcement, monitoring, performance management and sponsorship and marketing initiatives they thought would assist their organisations in moving forward on sexual orientation work. Even where respondents were thinking of moving jobs, they were unlikely to settle for less than their current employer provided, so were likely to be aware of competitor’s policy on sexual orientation (Colgan et al. 2006). Thus tackling discrimination and creating an inclusive organisation has been shown to have an important impact on the job satisfaction of LGB employees, as well as encouraging greater confidence and loyalty in the employing organisations. It is hoped that the Equality Act 2010 will assist organisations to maintain their momentum in developing inclusive and LGBT-friendly organisations.

References Bond, S., Hollywood, E and Colgan, F. (2009) Integration within the Workplace, Manchester: Equality and Human Rights Commission. Carabine, J. and Monro, S. (2004) ‘Lesbian and gay politics and participation in New Labour’s Britain’, Social Politics, 11:2, 312–327. Colgan, F., Creegan, C, McKearney, A. and Wright, T. (2006) Lesbian, Gay and Bisexual Workers: Equality, Diversity and Inclusion in the Workplace? Comparative Organization and Equality Research Centre, London Metropolitan University. —— (2007) ‘Equality and diversity policies and practices at work: Lesbian, gay and bisexual workers’, Equal Opportunities International, 26:6, 590–609. —— (2009) ‘Equality and diversity in the public services: moving forward on lesbian, gay and bisexual equality?’ Human Resource Management Journal, 19:3, 280–301. Colgan, F. and McKearney,A. (2009) ‘Equality and diversity which way forward on sexual orientation in the private sector?’ Equal Opportunities International Conference, Bosphorus University in Istanbul on 15–17 July 2009. Cooper, D. (2006) ‘Active citizenship and the governmentality of local lesbian and gay politics’, Political Geography, 25, 921–943. Day, N. and Schoenrade, P. (2000) ‘The relationship among reported disclosure of sexual orientation, anti-discrimination policies, top management support and work attitudes of gay and lesbian employees’, Personnel Review, 29:3, 346–363. Dickens, L. (1999) ‘Beyond the business case: a three-pronged approach to equality action’, Human Resource Management Journal, 9:1, 9–19. ——(2005) ‘Walking the talk? Equality and diversity in employment’, in Bach, S. (ed.) Managing Human Resources: Personnel Management in Transition, Oxford: Blackwell, 178–208. Dickens, S., Mitchell, M. and Creegan, C. (2009) Management Handling of Sexual Orientation, Religion and Belief in the Workplace, Report prepared for Acas and CIPD, London: National Centre for Social Research. Hoque, K. and Noon, M. (2004) ‘Equal opportunities policy and practice in Britain: Evaluating the “empty shell” hypothesis’, Work, Employment and Society, 18:3, 481–506.

110 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Kersley, B., Alpin, C., Forth, J., Bryson, A., Bewley, H., Dix, G. and Oxenbridge, S. (2006) Inside the Workplace: Findings from the 2004 Workplace Employment Relations Survey, Oxford: Butterworth. Kirton, G. and Green, A.M. (2006) The Dynamics of Managing Diversity: A Critical Approach, Oxford: Elsevier Butterworth-Heinemann. —— (2009) ‘The costs and opportunities of doing diversity work in mainstream organizations’, Human Resource Management Journal, 19:2, 159–175. McManus, S. (2003) Sexual Orientation Research Phase 1: A Review of Methodological Approaches, Edinburgh: The Scottish Executive. Palmer, A. (1993) Less Equal than Others: A Survey of Lesbians and Gay Men at Work, London: Stonewall. Rubenstein, M. (2009) ‘The EOR guide to the Equality Bill: part 1 – general principles’, Equal Opportunities Review, 189: June 2009. Stonewall (2005) The Employment Equality (Sexual Orientation) Regulations: Guidelines for Employers, London: Stonewall. Stonewall (2006) Workplace Equality Index 2006, London. Stonewall (2007) Living Together, London. Stonewall (2008a) Peak Performance; Gay People and Productivity, London. Stonewall (2008b) Workplace Equality Index 2008, London. Stonewall (2008c) The Double-glazed Glass Ceiling: Lesbians in the Workplace, London. Stonewall (2009) Workplace Equality Index 2008: The Top 100 Employers for Lesbian, Gay and Bisexual People in Britain, London. Trau, R. and Hartel, C. (2004) ‘One career, two identities: an assessment of gay men’s career trajectory’, Career Development International, 9:7, 627–637. Waaldijk, C. and Bonini-Baraldi, M. (2006) Sexual Orientation Discrimination in the European Union, The Hague: T.M.C. Asser Press. Walsh, J. (2007) ‘Equality and diversity in British workplaces: the 2004 Workplace Employment Relations Survey’, Industrial Relations Journal, 38:4, 303–319. Ward, J. and Winstanley, D. (2004) ‘Sexuality and the city: exploring the experience of minority sexual identity through storytelling’, Culture and Organization, 10:3, 219–236.

Race, Migration and Religion

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chapter

9 The Racialised

Organisation: The Experiences of Black Managers TRACIE JOLLIFF

Introduction The work of achieving racial equality within an organisational context is both complex and continuous. The complexity stems from the fact that the very notions of both race, and of what it means to have equality of race, are subject to interpretation and debate. Clarification of these notions is needed before racial equality can be understood and then achieved. The production of such equality however, can only be considered legitimate if the subjects of the actions of equality creation subsequently acquire the experiences of liberation as anticipated. This liberation includes the freedom to speak, to choose and to be present in the same way as those who have never suffered the detriments of racial discrimination. In this chapter, I will draw upon relevant theory in order to better understand how to create the organisational conditions which promote race equality, and consider some of the often hidden dynamics of racialisation within organisations. The use of a case study and my own research with black managers will serve to illuminate how these theories are experienced in practice, and – most importantly – in the lived experiences of black1 employees, who work within our allegedly racially neutral organisational worlds. In considering the experiences of black organisational actors, I do not suggest that discrimination has no relevance to issues of culture, ethnicity and religion, for example; however within this short chapter, it is only possible to illustrate my arguments from a much narrower viewpoint than I would ordinarily choose. Notwithstanding this, I consider that the viewpoint presented here, focusing on the experiences of visible minorities, has much to contribute to this subject. It is my intention that this approach will aid consideration of the complexities of the subject, by bringing some of the contours of the obstacles to racial equality into sharper focus. 1 The word black here is used as a collective term to describe those who share a common experience of racism based upon visible racial characteristics or other markers.

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In conclusion, I will offer some insights gained from my research, which contributes to a growing body of knowledge of the experiences of black managers within organisations. I will do this in order to propose some ways in which the passage towards greater racial equality in the workplace might be achieved in more meaningful ways.

The Big Picture: Racial Histories and Ideas about Racial Differences In order to engage with this subject, we need first to scrutinise the concept of race itself and to understand how this concept has ushered in certain forms of organisational practices and behaviours, based upon notions of racial sameness and racial difference. Race and racism are contested concepts and theorists have interpreted both the phenomena and their causes differently. This section considers some of the presumptions that are often omitted from prevailing organisational conversations about race. In examining both race and racism, we first need to refer to the historic contextual setting that has influenced contemporary organisational ideas, and racial activities, and is of fundamental relevance to this work.

The Certainty of Race Carolus Linnaeus began the process of racial classification as we now recognise it, in 1753 and concluded that four classifications of race are objectively observable. This viewpoint holds within it assumptions about racial certainty and its meanings. The importance of this viewpoint lies in its implications as adeptly articulated by theorists such as Dalal (2002), Goldberg (2004) and Khan (2005). Such certainty about race leads to the notions that these external (racial) characteristics point to and corroborate internal characteristics and aptitudes. These ideas then invite subjective judgements and comparisons between races, the culmination of which gives credence to beliefs about racial inferiority and superiority. The hierarchical nature of race which underpins Linnaeus’s categorisations suggests that lighter skinned people are inherently superior to those with darker skins. Human racial characteristics, far from being distinctive and separate, are simply part of a continuum of human variation and features that cannot be neatly packaged and categorised as Linnaeus suggests. The real histories of human variation that demonstrate the fallibility of any notion of racial certainty and purity is found within the emergence of genetic science. The current global and dominant ideological discourse on race (which is based upon the above assumptions of the immutability of race) is one in which skin colour is of gargantuan significance. Racial characteristics then become determining features of destiny, status and choices, described in the following way by Dalal, ‘Racism is a form of organising peoples, commodities and the relationship between them by making reference to a notion of race’ (Dalal 2002: 27). In the absence of such rigid classifications of race and their accompanying assumed meanings, contemporary racism (based upon visible racial markers) can neither be activated nor maintained. Race then is a social construct. West (2004: 91) suggests that the philosophical underpinnings of contemporary racialised thoughts and beliefs have their origins in western classical ideas of rationality. Such rationality deemed it to be irrational, barbaric or mad to suggest black equality

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[with whiteness] in beauty, culture, and intellectual capacity. Goldberg (2004) describes a history of racialisation in which race increasingly became conceptually entangled with and inseparable from, concepts of morality, in that the inferior races were intrinsically less moral than the superior race – white people. In his view the ubiquity of such messages became deeply rooted within philosophical and political discourses and, importantly, the authority to construct racial classifications was retained by the superior. He goes on to ask: If race was a morally irrelevant category and this was the basis of racism’s immorality, as liberal philosophical commitments would have it, how could it be that social, economic and political exclusions predicated on racial belonging seemed so readily rationalized, as much contemporarily as historically? If race really is a category that makes no rational sense, why does it enter so readily into the everyday calculations of rational people and politicians? (Goldberg 2004: 424)

Racialised thinking is therefore entrenched within contemporary discourses of rationality and is then presented as a normal response to everyday situations. Such normality conveys and reinforces these unquestioned historical misunderstandings. Specific human actions and responses are located in, and can only be understood through the lens of, this global, historical and ideological discourse about race; which consequently shapes our conscious and unconscious responses to our encounters with both racial sameness and racial difference.

Why Are Such Ideas About Race Significant? The power of such ideas about race lie within their ability to first separate out, and then to target and dehumanise, its objects (Dalal 2002). This dehumanisation process is often subtle and is revealed in this chapter in two ways. One, by bringing into view or raising to consciousness the assumptions that organisational actors make in relation to the racialised subject and second, via a willingness (on the part of the reader) to hear and acknowledge the lived experiences of black organisational actors. In saying this, I am proposing that such normalisation of racism is located within the very routine regimes (Cassin 2006) of organisational functions, hence is a systemic and philosophical component of the institutional DNA. All organisational actors are raced, that is to say that specific labels with accompanying expectations and perceptions are attributed to them by other actors on the basis of their race. The systems, created by people who have been socialised within the historical context outlined above, are therefore imbued with collective and often unconscious associations of race. Organisations therefore neither express nor perform racially neutral actions as a given; in fact, the resultant historical default setting of racial bias presupposes that actions influenced by racialisation are part and parcel of the way we think and behave one towards another. Claims of racial neutrality are symptomatic therefore of a perpetual denial of the realities many individuals face; and are borne out of a legacy of inequality of voice and legitimacy. Such denial serves to maintain the status quo of inequality and is part of the racialised organisational mechanisms that contribute towards marginalisation.

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Understanding White Racialised Identities and Power Within Organisations With such polarising concepts of race at work within the organisational collective mind, it is important to situate the role of racial whiteness within these relational and power dynamics. Conversations about whiteness within organisations rarely occur. This signals an acceptance of assumptions about white ways of being and doing as being perfectly normal and therefore requiring no questioning. Such assumptions mean that key organisational features which propel racialisation become obscured, such as the race/power relationships associated with whiteness (Macalpine and Marsh 2005). The collective and accepted conclusions drawn from this lack of scrutiny of whiteness (and therefore an absence of analysis of white collusive practices) can explain why many organisations consider themselves to be racially neutral and fail either to understand, or have a willingness to accept, the lived experiences of black employees and customers. Those whose physical characteristics are deemed to denote inferiority, as a group, experience the most harmful effects of racism. Their very presence is always located by such racialisation. The purpose of the classifications of race mentioned above, can be viewed with clarity in the context of racial histories. Such rigidity of classifications have been used to justify human degradation, some of the most brutal examples of which have been the global slave trade over the last 500 years. The same patterns of racialisation, however, can also be seen at work (often expressed through discourses of difference relating to race, culture or ethnicity) in more concealed forms within modern and seemingly enlightened organisations. It is these ideas of racial certainty which shape dominant organisational conversations as a starting point for building racial equality. Yet such ideas are inherently questionable, both scientifically and ethically. If such ethically suspect perceptions of race underpin dominant discourses, and these in turn dictate organisational practices of creating racial equality, it is likely that the kind of equality created by such knowledge would also contain similar ethical fault lines. Such fault lines can be detected only by examining the experiences of those at whom racism is mainly targeted. The organisational work that delivers racial equality should therefore hold real meaning to those for whom such equality is being created. The implications of the above arguments are best illustrated by considering the experiences of black organisational actors, who represent some of the recipients of current organisational practice in relation to race equality practice.

The Racialised Organisational Experience: How Black Employees Experience Racism in Action Personal experiences of race identity within organisations tend to mirror the ubiquity of racialised notions in society. These notions are linked to, and inseparable from the production of systemic outcomes of racial inequality. This can be seen in the following case study of my own experience as a black manager where I will tease out some of the theoretical concepts I have already mentioned.

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Case Study Within a few weeks of my appointment as a first line manager, the only black manager within the department, a couple of my white subordinates began to make complaints. They did not express these to me, but instead went directly to my line manager. The first I heard of this was when I was asked by my manager to a three-way meeting with one of the complainants, who then explained the grounds for her disquiet. I had complimented her one morning about her hair and she had subsequently taken offence because she deemed the comment to be personal, and therefore unprofessional. I worked at that time in a team with a majority of women, where it was commonplace to hear compliments about hair and other aspects of physical appearance. In puzzlement I asked the worker concerned why she was not calling any of the other team members and the other manager who made such comments unprofessional; she maintained what appeared to be a genuinely thoughtful pause, and then responded by saying ‘I don’t know’. I later addressed my manager Z about this meeting, and asked her why she had not simply referred the worker back to me, highlighting the differential way in which I had been treated (which also alluded to the inappropriate handling of the situation by Z). I was subsequently told that the team historically included many different workers from different cultures (she then proceeded to name a few non-English but white previous workers) and emphasised that none of them had brought such trouble with them into the team (as I was clearly doing).

A number of important features can be seen here, which I will now discuss.

Unconscious Actions and White Collusive Practices Here we see an example of racialised motivations which are also infused with notions of moral superiority. These are illuminated by the choices made as to what constitutes a valid complaint, and how to address a complaint about a black manager. It is quite believable that both of the white actors in this case were responding unconsciously to (their own and the collective organisations’) embedded and systemic racial presumptions. When asked to explain her differential treatment of me, the worker was unable to consciously account for this and the manager Z was also not able to see that she had given credibility to the worker’s complaint by the way she had responded to it.

White Assumptions of Neutrality In considering the inter-relational power dynamics associated with this scenario, we see white collusive practices at work. My manager could have sent the worker to me as the direct line manager, especially given the trivial nature of the complaint. It is interesting that, not only did she fail to do this, but she deemed it to be appropriate to give credence to the allegation. This was done via the process selected to address the situation.

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One would normally expect such a process (a request to attend a three-way meeting with no prior knowledge of the meeting’s content) to be associated with, at the very least, a serious breach of professional conduct. The worker’s complaint was therefore inadvertently given legitimacy; her differential treatment of a black manager endorsed and also credited with a degree of moral authenticity. The whiteness of both of the other organisational actors in this case is important and, the absence of any meaningful appraisal of this feature, meant that some basic assumptions were made. One being that white people are racially neutral and do not have racialised motivations unless such motivations are explicitly stated. The other being that black people must be at fault if a white person feels the need to make a complaint about them, a presumption associated with the activation of the racial inferiority/superiority dichotomy. It is significant here that no further examination of the complaint was seemingly conducted. A more robust analysis of the situation may have revealed some underlying and shared fears associated with certain stereotypes about black aggression, which resulted in the white actors feeling the need to protect one another in such circumstances. Racism did its work in locating and targeting the subject and then expertly retargeting the subject (Dalal 2002). The retargeting in this case was done by suggesting that the responsibility for my unfair treatment lay with me, for bringing this uninvited racism into the team. Such retargeting is often used as an effective organisational defence in the light of a racist complaint, and delivers a particular kind of dilemma for black managers and employees in the midst of an already racially charged situation. Through a racially distorted organisational lens, the customary response to black employees who raise issues of race is to construe it as a banal black obsession with skin colour.

White Denial of the Realities of Racism We also see here the denial of my experience of racism, both implied and explicitly stated within the retargeting and blame scenario. The view was that I had clearly been mistaken as to the racialised nature of my experience. This process was played out with seemingly no recognition on the part of the other two organisational actors of bias, unfairness or collusion. I knew both intuitively and by virtue of reason that the events described had been partly if not wholly racially motivated, despite the fact that the organisation (as experienced by me through my manager) was now demanding proof of my knowing. This proof, I felt I had already delivered.

The Experiences of Black Managers in Organisations The experiences of black managers and employees is the subject of much inquiry (Douglas 1998; Bravette 1996; Ahmad 1992; Alleyne 2004), however I believe the fundamental issues raised seldom, if ever, find their way into mainstream narratives of management and leadership in Britain, the United States or any other western country. Douglas (1998) signals the relevance of her own racialised experiences beginning in her formative years and highlights how such experiences create the backdrop to organisational survival strategies used by black managers. She notices how these survival strategies are used by black managers in their decision-making processes (as they attempt to unconsciously avoid the harm caused by racism) which then have certain consequences for

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their circumstances and careers. This kind of defensive decision-making leads to black managers having a restricted and diminishing field of choices in comparison to their white counterparts. Thus black managers’ decision-making is far more onerous and emotionally demanding. Allyne (2004) also discusses the personal cost of the racialised experience in her work on race-related workplace stress. She discovers common patterns with respect to the psychological harm done to black professionals who are exposed to and affected by continual race-laden dilemmas in the workplace. Cassin (2006) suggests that the work associated with negotiating one’s identity in the workplace is largely unknown to majorities. It is the hidden nature of this work which contributes to the creation of an environment where black managers feel they have little option but to remain constantly silenced about the nature of their racialised experiences (Bravette 1996). In the light of such deeply felt accounts, it is hard to maintain a naïve stance which supposes that systemic racialisation is incidental and largely benign. This is not to say that all black managers claim to have encountered racism within their organisations. However it is worth commenting that just as not all women positively contribute to the elimination of gender discrimination in the workplace due to a lack of awareness of the pertinent issues, black managers, by virtue of their blackness (as visibly determined), do not necessarily speak from a black perspective, which here means taking a particular political stance. Ahmad (1990: 3) writes: The motivation that energises a Black perspective is rooted to the principle of racial equality and justice. The articulation that voices a Black perspective is part of a process that is committed to replacing the white distortion of Black reality with Black writings of Black experience.

The negative impact of unconscious and racialised actions upon others should not be continually justified: organisations have moral and legal responsibilities to safeguard the psychological welfare of all employees equally. The production of race equality therefore, must include an analysis of events which enables organisational actors to become aware of, and to take responsibility for, the consequences of their behaviours upon others. It is difficult to argue that there is no link between the production and maintenance of racialised environments and the degree to which these contribute towards increased levels of stress, decreased levels of performance and a devaluing of self for black organisational actors. In researching the experiences of black managers within the public sector (Jolliff 2008) I found a number of similarities to my own experiences. This was a small-scale research project with five participants (three female and two male) located within public sector organisations across the south of England. The aim was to explore whether the experiential stories of black managers themselves had worth in helping decisionmakers to move forward the racial equality agenda within organisations, and if so, what contribution these stories could make. The research question was addressed using a qualitative approach, through interviews and action–inquiry methodology with a psychoanalytical focus. Black managers seemed intuitively to know of the real possibilities for being both misunderstood or marginalised if they raised the issues of race which were salient to them in the workplace. They formulated strategies to deal with both the taboos around race and the constant, but mostly veiled, questions about their legitimacy in their role, competence, voice and relationships within the workplace. One manager stated:

120 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k There is a qualitative difference for black managers in organizations in relation to power relationships … the trustful and supportive relationship that is often taken for granted between white managers breaks down; white colleagues then revert back to inflexible procedural dictate with black colleagues … the outcome of this is that it becomes more difficult for me as a manager to achieve the same outcomes, because I am not given the same room for manoeuvre or error. (Jolliff 2008: 104)

I will now consider some of the issues which black managers said were most significant to them, and relate these to the evidence of organisational ways of maintaining racialised processes which lead to discrimination.

Skin Colour Matters First, black managers know that skin colour matters and that it can wield huge influence upon the relational dynamics of power, organisational belonging (including networking), voice, career choices and progression (Cook et al. 2003). All of the managers were aware that they were both very visible as minorities in their roles and that this visibility was fraught with potential hazards. Some managers talked about experiencing isolation with regard to understandings of racialisation and the need to constantly use sophisticated levels of reflection and political skills where racism and its effects were detected. For example, they recognised the pitfalls of overtly championing race equality due to the ease with which they could be labelled as only having expertise when it comes to race issues, their other contributions being overlooked.

The Collusive Denial of Racism Mistaken assumptions are made about the eagerness with which black managers are purported to make racial allegations; it seemed from this research that quite the opposite was true. The reluctance of the managers to raise issues of race was often a feature of a discursive void in the context of racial organisational taboos. This multitude of organisational silences, policed partly through anxiety, were clearly a means of maintaining current relational and power dynamics. This silence about racism was primarily because they felt that raising such issues would negatively affect their relationships with their white managers, who for various reasons were perceived not to want to hear about such issues. Black managers supposed that it was too risky for them to be open about their lived realities of racism within organisations that did not demonstrate that there was a common language with which to articulate the nuances associated with racialisation. Organisational denial of racial realities served effectively to silence black managers about race (Bravette 1996).

Negotiating Identities: Personal Choices About Identity in the Workplace McLaughlin (2007) says that social identity includes both ascribed and assumed identity traits; ascription being that which is externally imposed whilst assumption is that which is internally determined, that is, choosing to identify oneself as being part of a particular group.

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The degree to which one can then manipulate one’s identity is directly related to the visibility of the identity trait and the degree to which one can avoid ascription. The relationship then between these notions of ascription and assumption is a constantly changing equilibrium which is sensitive to issues such as context and status. The notion of multiple identities adds complexity to the process of negotiating identities. For instance, how do you accurately determine which aspect of your identity is most significant in any given scenario, either to yourself or to other actors? Inevitably dilemmas arise and choices have to be made, which further determine the meanings that we give to our experiences and subsequently determine the perspective from which we see. These negotiations were being constantly made by black managers in my research. It is argued by McLaughlin (2007: 73) that: The work involved in identification processes is therefore complex, multiple, sustained and significant. It is also work which is unequally distributed – those with multiple minority group affiliations open to them or ascribed to them must juggle their various othernesses in order to secure beneficial or even neutral outcomes.

In my research, one manager described that she was conscious of being both female and black, both of which represented minority presence at her level in the organisation. She actively and consciously formed allegiances with other women, with whom she could share common experiences of exclusion and seldom, if ever, would mention her racial identity (and the experiences she encountered because of this) as she felt that this would cause discomfort for her white female colleagues, and lead to her being marginalised by this vital network McLaughlin also argues that this work is a burden which is largely unknown by dominant majority groups and involves the: Securing of legitimacy and credibility of presence; [where] presence is inherently questionable in relation to people identified in terms of minority group traits. (McLaughlin 2007: 73)

In summary, some recurring themes that emerged are highlighted below. It is important to note that due to the small number of managers involved, the findings should not be assumed to relate to all black managers, but are useful to consider when determining how organisational racial equality can be meaningfully produced. Managers generally avoided explicitly discussing issues of racialisation with white actors, even if they had personally encountered racism. They also (often unconsciously) steered clear of situations which could result in them being ascribed with negative racial stereotypes or, which limited the perception of their expertise to race issues alone. Managers recognised that there is worth in knowledge created from black organisational experiences and therefore acknowledged the need to have black support networks. However these networks were pursued with some care, with much dialogue regarding organisational racialisation within and between networks serving several purposes including, validation, resistance and as a survival strategy. Some were aware that selected defensive strategies such as over-emphasising aspects of self which white organisations found to be acceptable (the corollary being to devalue the other aspects of self) that are used to survive organisational expressions of racialisation,

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can become problematic and detrimental to them personally over time. They discussed the short-lived benefits of such strategies and the long-term negative effect on the emotional and psychological self of these ways of being. Additional forms of knowledge about their roles, their business and political skills are essential to success within race sensitive organisations. Managers would work hard to acquire this knowledge as they felt that they were required to continually justify their presence and competence in their roles. Mangers interviewed shared a common wish to exercise influence for racial justice and therefore felt as though they were accountable not just to their organisations in the usual ways, but also to other black people for the degree to which they were able to influence their organisations in seeking greater racial equality, within the constraints described above. At times the negotiations associated with these endeavours were found to be both rewarding and fatiguing. Interviewees signalled a need for leadership programmes across organisations which address the realities for the black managers within. I am not proposing that the racialised actions of the white actors within the workplace were always conscious; in fact in my own case managers were genuinely perplexed by the behaviours of the team members concerned. But what caused them even greater anxiety was the consideration that there could possibly be a racist element to the actions of individuals they both knew and had worked well with. However, their inability to separate these essential elements led them to pursue a fundamentally flawed analysis, borne from a racially distorted logic to a similarly flawed conclusion. They considered their white colleagues to be nice people, and nice people cannot therefore be racist people (a form of denial in relation to black realities of racism and a consequence of the assumption of white moral superiority). A second element is linked with and follows on from the first. Due to black people’s assumed oversensitivity in relation to the subject of race, it is beholden then upon white people to point out the black person’s error and try, at least initially, to persuade them as to the neutrality of white interactions with them. The above experiences signal a requirement for organisations to address the issues that black managers identify as being important for the elimination of racial inequality. Organisations then need to get beneath the discourses of power and colour that currently dominate, in order to open up discussions about what constitutes race equality competence in white managers, and what constitutes empowerment for black managers. The secrecy and denial of the realities of racialisation need to be exposed in conjunction with a commitment to the examination of whiteness as a racialised category and its implications for organisational behaviours.

The Business Case and the Implications for Race Equality of the Diversity Narrative The diversity narrative is a generic approach to equalities that emphasises the multiple equality strands (race, gender, disability, religion and belief, age and sexual orientation). It is an approach that fits well with ideas of plurality and modernity. Diversity has also embraced a business model and supports ideas about the potential gains for businesses through promoting equality. There are a number of dangers with this emphasis, not least that the business case can become the primary focus as opposed to moral or ethical drivers for equality creation.

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History shows that market sovereignty as a shaper for equality is inherently tremulous, as it suggests that, if it can be demonstrated that discrimination does not harm profitability there is justification for its continuation. Such arguments were articulated as a reason for the continuation of slavery and are evident currently in relation to various discourses about global inequalities on a number of different levels both here in Britain and internationally. Market driven ideas for equality can be evident in relation to organisational economics of race equality. For example, proposed positive action initiatives to increase representation at senior levels often face internal organisational resistance on the basis of cost and efficiencies (Noon 2007). Critics of the diversity approach such as Creegan et al. (2003) and Dickens (1994) also question the underlying economic rationale for diversity. Wrench (2005) concurs with the above arguments, linking the drive for evidence-based decision-making within British public sector organisations to marketisation. Business-based arguments for equality also obscure issues such as structural disadvantage, ethics, discrimination and power. Consequently, through diversity, organisations can create the illusion of investment in race equality and of making progress; whereas they are actually carrying out endless and often ineffectual bureaucratic activities driven by wider policy frameworks. The outcomes sought from such activities are often over-reliant on quantitative evidence gathering (McLaughlin 2007) to the satisfaction of audit compliance, when on the ground there is far too often little real change (National Employment Panel 2007; Wood et al. 2009). Diversity is also accused of being a blanket approach without seeing issues in depth such as the inherent conflicts between the various equality strands (Jones et al. 2000). It is argued that one of the real intentions (of the white powerful collective) of this approach to equality is to depoliticise race (Khan 2006; Wrench 2004). The irony is that racism can be an endemic and explicit component of the relationships between colleagues, whilst simultaneously organisations are celebrating excellence. Surely this kind of inconsistency is an absurd indication that all is not well with the creation of racial equality.

Diversity Reinforcing Racial Certainty A key feature of the diversity approach is that it requires black presence or participation as an indication of success. This presence can mean that where the numbers of black people within populations are small, one black manager within a management team would give the statistical illusion of representation and therefore equality. The significance of the need to locate difference via categorisation is paramount here. It is therefore implicit that it is not advantageous to question the racial rigidity upon which diversity relies in order to justify progress. Diversity, far from moving towards the liberation of self from the constructs of race, capitalises upon race with its underlying assumptions. It reintroduces immutability as a concept with the accompanying drip feed of limiting stereotypes which arise from such categorisations. If this underlying ideology of immutability leads to unethical practices as argued above, this helps us to understand how beneath the palatable approach of diversity, racism can be both incubated and activated (to the surprise of many) out of a sea of seeming tolerance and reason (Dalal 2002). Thus the diversity discourse can reinforce organisational behaviours which are rigid and unhelpful for progress on racial equality.

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Although it is important that presence and participation are considered to be indicators of progress, there needs to be a questioning of both the legitimacy and efficacy of the over-reliance upon such categorisations as a mechanism for the production of racial equality.

Conclusion The race equality journey is incomplete and needs to be reinvigorated in new and meaningful ways for those who experience the greatest detriments from the persistence of this form of inequality. New ways need to capture and embrace the significance of the racialised experience, as told by those who live the realities of organisational racial discrimination. The challenges of such an approach are manifold, not least, implying that organisations will need to consider how they can build capability both to understand and to embed such learning. This must first stem from the narratives of black organisational actors and therefore the conditions must be created whereby there is a willingness to hear these racialised narratives in the first instance. In my experience as an organisational consultant working across all sectors in Britain, it is imperative that HR professionals and others who are dealing with issues of racial equality understand that the approach required to unpack this kind of complexity goes beyond external perspectives and quantitative data analysis, and requires the introduction of evidence which probes meanings held by both individuals and groups. Policy formulation therefore needs to be built upon the idea of putting black voices at the centre in order to effect considerable changes in the way systems are both understood and experienced. White actors need to acknowledge that they too are racialised subjects and do not hold monopolies of neutrality when it comes to race. This approach necessitates a candour which can be unfamiliar within corporate life, which is often preoccupied by issues relating to reputation, politics and economics, among other concerns. But an essential prerequisite for progress is an opening up of the silences associated with race in order for the next chapter of the journey towards race equality to be written. If those who are in positions of influence can understand and then ethically and visibly lead in relation to some of these changes, the disassembling of the racial mechanisms which have ensured a kind of organisational experiential apartheid will begin to be dismantled. Such a stance will require courage, both to consider truthfully aspects of self and unquestioned assumptions held about race, and also to introduce a new dialogue about race into organisations. This kind of dialogue must be one that truly honours the collaborative contributions of black and white (racialised subjects) in relation to both the process of understanding and of practically creating the conditions within which racial equality becomes a reality.

Recommendations for Action In summary, I propose that organisations could consider the following in order to make progress towards racial equality:

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Emphasising the ethical case for change Business arguments about race equality when taken in isolation are too flimsy and do not present a reliable lever for progress. The social justice, ethical and structural arguments for why race equality should be pursued will bring both balance and perspective to organisations seeking to transform the way they understand and do race equality.

Demonstrating racial competence Competency frameworks could be more robust and be able to locate specific skills which demonstrate that managers understand how to work with racial diversity in ways which promote positive outcomes. This requires that white managers understand and promote a black perspective within the workplace, as well as understanding constructs of whiteness. Such frameworks should not be mere ‘tick-box’ exercises, but should limit the professional progression of individual managers who are unable to demonstrate these essential skills. The criteria could include specific and targeted requirements which demonstrate abilities such as:

• Reflexive practice, the demonstrable taking on of responsibility for making changes and showing continuous learning/inquiry and adaptability to changing circumstances. • Enabling employees to give practical examples, which can be corroborated by others, where managers have demonstrated the use of appropriate language, skills of analysis and reflection in order to promote racial equality in the workplace. Judgements about whether managers have demonstrated competence in such cases could be made by multiple actors who have experienced the leadership skills of the manager concerned, and who themselves are able to demonstrate the knowledge and competencies concerned.

Dealing with denial Organisational leaders could help to eliminate organisational denial of racism by acknowledging the lack of racial neutrality within their organisations as a starting point to develop and champion strategies for change. Such strategies would require all managers to demonstrate how they will ensure that bias through racialisation is addressed within the workplace, including challenging and eliminating discrimination in relation to, for example, recruitment, retention, promotion and language.

Black managers breaking the silence Once the above initiatives are secured, it would be more likely that black managers and staff would feel able to speak about their experiences. It is essential that their voices are heard at the highest levels of the organisation where targeted action can result from this knowledge. Organisations would need to be adaptable and able to move swiftly to address issues as they arise.

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Addressing the realities for black managers Black managers could be offered specific and tailored leadership development programmes that raise their awareness of some of the hidden racialised obstacles they may encounter within organisational life. This approach would need to have a focus upon empowerment through voice, and equip black managers with strategies for leadership success and resilience. Similarly, positive action initiatives would need to be implemented to locate black talent early within organisations with, for example, programmes for aspiring leaders and specific targeted coaching sessions.

Building organisational capability for change All managers and staff should have compulsory and ongoing input through training, coaching and performance management processes to equip them to both understand the relational dynamics of race, and develop the skills which can support the emergence of black talent within their organisations. The content of such intervention could include issues about collusion, denial, understanding black perspectives and social constructs of race and power. Organisations would need to promote cultures of collaboration, where employees support each other’s learning and work together towards policy formulation and practice which delivers both the hope for, and the reality of racial equality and personal liberation.

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T h e R a c i a l i s e d O r g a n i s a t i o n : T h e E x p e r i e n c e s o f B l a c k M a n a g e r s 127 Douglas, C. (1998), From Surviving to Thriving: Black Women Managers in Britain [online] Available from: http://www.bath.ac.uk/carpp/publications/doc_theses_links/c_douglas.html [accessed 2 January 2007]. Goldberg, D.T. (2004), ‘Reflections on “Modernity, Race and Morality”’, in Essed, P. and Goldberg, D.T. (eds) Race Critical Theories, Oxford: Blackwell. Jolliff, T. (2008), ‘Truths, lies and imaginations of racial equality: Do Black managers’ stories have worth in helping public sector organisations to move forward the racial equality agenda?’, Unpublished Masters thesis: University of the West of England. Jones, D., Pringle, J. and Shepherd, D. (2000), ‘Managing diversity meets Aotearoa/New Zealand’, Personnel Review, 29(3), 364–380. Khan, K. (2006), ‘One step forward, one step back: The politics of “race” and drugs and how policy makers interpret things’, in Lart, R., Higate, P. and Hughes, R. (eds), Drug Policy and Politics, McGraw Hill: Open University Press. Macalpine, M. and Marsh, S. (2005), ‘“On being white: there’s nothing I can say”: exploring whiteness and power in organizations’, Management Learning, 36(4), 429–450. McLaughlin, E. (2007), ‘The equality chameleon: reflections on social identity, passing, and groupism’, Social Policy & Society, 6(1), 69–79. National Employment Panel (2007), 60/76 The Business Commission on Race Equality in the Workplace, London: National Employment Panel. Available from: http://www.dwp.gov.uk/docs/ buscommissionreport.pdf [accessed 2 January 2008]. Noon, M. (2007), ‘The fatal flaws of diversity and the business case for ethnic minorities’, Work, Employment and Society, 21(4), 773–784. West, C. (2004), ‘A genealogy of modern racism’, in Essed, P. and Goldberg, D.T. (eds), Race Critical Theories, Oxford: Blackwell. Wood, M., Hales, J., Purdon, S., Sejersen, T. and Hayllar, O. (2009), A Test for Racial Discrimination in Recruitment Practice in British Cities, London: Department for Work and Pensions. Wrench, J. (2004), ‘Trade union responses to immigrants and ethnic equality in Denmark and the UK: The context of consensus and conflict’, European Journal of Industrial Relations, 10(1), 7–30. —— (2005), ‘Diversity management can be bad for you’, Race & Class, 46, 27.

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10 The Role of Trade Unions in Fighting Racial Discrimination WILF SULLIVAN

Introduction Tackling race discrimination has not always been on the agenda of the British trade union movement. Whilst by the late 1970s trade unions had moved to a position of being opposed to race discrimination in the workplace, much of the trade union movement still viewed immigrants as competition for domestic workers and there was no indication that trade unions were prepared to take any action to address the specific needs of black workers. A series of industrial disputes in manufacturing, textiles, engineering and transport during the late 1960s and 1970s brought black workers into conflict not only with their employers but also with unions and led to a struggle by black workers for greater recognition by their unions. This struggle led to self-organised groups of black workers organising to get unions to accommodate them within trade union structures, to get trade unions to collectively bargain and to campaign in a more effective way against racism in the workplace. By the mid-1980s the establishment of black self-organised structures in some of the larger trade unions gave anti-racism a much higher profile in the trade union movement. The Race, Immigration and Trade Unions (RITU) research project was a major study of racism at work, which focused on the role of trade unions in combating discrimination and xenophobia, in encouraging participation and in securing social inclusion and citizenship. The project, which involved trade unionists, researched trade union policies and practical responses in comparable sectors in five countries: Belgium, France, Italy, the UK and Bulgaria. It examined the processes by which unions succeeded or failed in the inclusion of the voice and interests of black and minority ethnic workers, and sought to ascertain the effectiveness of their impact on reducing discrimination in labour market policies and practices. A particular outcome from the project in the UK was the publication of a pamphlet, ‘Working Against Racism’, which draws on the research undertaken in Britain. The pamphlet was developed on the basis that the participation of black workers in trade unions is key to ensuring that there is a reference point to construct a bargaining agenda, that collective bargaining on race equality needs to be part of unions’ mainstream negotiating agendas and must be directed towards ensuring that the systemic barriers and

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disadvantages that black workers experience in the workplace are dismantled. It draws its recommendations from ‘best practice’ and seeks to find ways of reinvigorating the antiracist struggle in the trade union movement and the workplace, to ensure that black trade unionists play a part in all decision-making levels of the trade union movement and that trade unions elect/appoint many more black people to leading positions and ensure that race equality and anti-discrimination is at the heart of collective bargaining. An extract from ‘Working Against Racism’ is reproduced here that gives specific guidance to trade unions on establishing good practice in relation to combating racism. The death of Stephen Lawrence and the subsequent report by Sir William MacPherson was a catalyst for the UK trade union movement to examine its response to racism. It accepted that it would have to take action to tackle institutional racism in the trade union movement and established its own ‘Stephen Lawrence Task Group’, which resulted in the Trades Union Congress (TUC) changing its rules by placing a requirement on unions to promote equality. An equality audit was also established to monitor the progress of trade unions in dealing with discrimination internally and with employers. The TUC has developed a new Black Workers’ and Trade Union Charter which focuses on the measures trade unions need to take to more effectively tackle problems of racial discrimination in the workplace. Whilst these changes have helped to focus trade unions on taking measures to improve the representation of black trade unionists in their lay and full-time structures and to examine how race is dealt with as a collective bargaining issue, the progress that has been made is only the start of the change that the trade union movement will have to make to adequately represent the interest of black workers in the UK labour market.

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Extract from Davis, M., McKenzie, R. and Sullivan, W., (2006) Working Against Racism: The Role of Trade Unions in Britain, London: TUC and Working Lives Research Institute

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11 Migration and Work: Discrimination Obligatory? NICK CLARK

Introduction In 2006, Sutton and Merton Hospital Trust dismissed a care assistant who was originally from Malawi. She had not committed any disciplinary offence, or failed in her duties. She had come to Britain with her husband, who had a work permit to work at the hospital, and as a dependent family member, she too was entitled to work. But when her husband died, that entitlement ceased, and when the UK Borders and Immigration Agency refused her appeal to stay, the National Health Service (NHS) Trust dismissed her (Sutton Guardian 2010). This could not have happened if she had been British, or a citizen of any other EU state. Effectively she was dismissed because of her nationality. Such obvious injustice is not only permitted by UK law, it is required. Had the Trust not acted in this manner, they could have been fined. If the events had taken place in 2010, there could potentially have been a civil penalty fine of up to £10,000 or in the event that the employer was thought to have deliberately employed an ‘illegal migrant worker’, up to two years jail and/or an unlimited fine (Immigration, Asylum and Nationality Act 2006). Sometimes, tragedy and injustice can inspire outrage and sympathy for migrant workers, as was the case with the 21 Chinese migrant workers who drowned while collecting cockles in Morecambe Bay in February 2004. Quite rightly, this contributed to a change of heart in the government over the need to regulate temporary labour suppliers in the food and agriculture industry. They moved to support a private member’s Bill setting up the Gangmasters Licensing Authority, arguably the UK’s most effective enforcement body of basic workplace rights. But five years later, almost to the day, an unofficial dispute over job allocation at a the Lyndsey oil refinery construction site featured demands for preference to be given to British workers, infamously echoing Prime Minister Gordon Brown’s phrase (used at the Trades Union Congress (TUC) in 2007) ‘British jobs for British workers’. While the workers’ aims and slogans quickly changed, as the focus became the defence of the national agreement for engineering construction, others took up the more reactionary positions abandoned by the workers. Labour MP Frank Field and Tory MP Nicholas Soames set up a pressure group called Balanced Migration, who included amongst their

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demands that: ‘the Government must move to declare illegal any contract awarded to foreign companies operating in this country that do not first offer all their jobs to British workers’ (Field 2009 – my emphasis). There is no sign that such a move will be adopted. It would, after all, be in breach of EU trade rules, and if operated in the other direction, would certainly deprive UK-based contractors of significant business across Europe. However, over recent years, restrictions applying to those (including from the newer EU member states) wishing to come to Britain to work have been significantly tightened up. There has been an ever-fiercer enforcement regime, and regulations of great complexity have been introduced. So complex are they, indeed that the Attorney General herself fell foul of them, incurring a £5,000 fine for failing to make copies of documents shown to her by a worker hired to carry out her domestic work (BBC 2009). Today, there can scarcely be a workplace of significant size that does not include some workers born elsewhere than the UK. The requirements placed by the state on employers not to employ those non-citizens who do not have permission to work in UK appear to contradict the legal (and moral) obligations not to discriminate on grounds of ethnic origin or nationality. This chapter attempts to outline some of the key features of migration to Britain, the relationship of immigration controls to employment, rights and discrimination, and to give some examples of good practice. It is not, however, a guide to immigration or employment law. Rather it sets out some of the key issues that surround these contradictory requirements.

Migration and Work Throughout the 1960s and 1970s, statistics on immigration showed that more people were leaving the UK than entering it. This changed a little during the 1980s, when the numbers leaving slowed down, so that the numbers entering and leaving tended to hover around each other. But during the mid-1990s, immigration began to accelerate. This took a number of forms – the number of work permits rose, claims for asylum increased in line with greater instability in key regions, international students were deliberately attracted to British universities and colleges, and the number of people joining families already resident also went up Then in May 2004, the EU was enlarged by the inclusion of ten new members, the socalled ‘A8’ from central and Eastern Europe,1 plus Malta and Cyprus. This marked a fresh acceleration in the number of people coming to Britain to work, and in the five years between 2003 and 2008, the proportion of workers not born in the UK rose from 9 per cent to almost 13 per cent, before falling back a little in 2009 (see Figure 11.1).

1

Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

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13 12 11 10 9 8 7 6 5 2003

2004

2005

2006

2007

2008

2009

Figure 11.1 Percentage of UK employees not born in UK Source: Labour Force Survey.

It is worth noting that there is always a steady flow of UK-born people returning after significant absences included in these statistics. Another factor has been a growing variety of countries of origin amongst the migrant workforce (although a few – Poland, Ireland, India, Pakistan, Germany and Bangladesh – account for over 35 per cent of the non-UK-born population). Country of birth does not necessarily tell us much about citizenship. In 2008 (1st Quarter), of 3.7 million working age residents who were not born in UK, 1.4 million, or 38 per cent were UK citizens, according to the government’s Labour Force Survey. This will be because they were born to British parents, had British citizenship dating back to the time when Commonwealth citizens were British, or have taken up British citizenship. Migrant workers can be found in all industries, but in certain industries, they are particularly significant. The pattern of employment differs according to the origin of the migrants (which in turn is likely to be related to how recently they arrived), as the table below, which separates the newer A8 migrants from other non-UK-born workers, shows. A8 workers are significantly more likely to be working in manufacturing, construction or transport than either UK-born or other migrant workers, and much less likely to work in the public sector. Migrant workers from elsewhere, however, are more likely than the other categories to be working in business services.

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Table 11.1 Percent of workforce in main industrial sectors by country of birth Industrial Sector Manufacturing Construction Distribution, hotels, catering Transport & Communication Business services Public admin, education, health

% UK-born workers 13 9 19 7 16 28

% A8 born workers 27 12 22 11 11 9

% other non-UKborn workers 10 4 20 8 21 29

Source: Labour Force Survey, from Clancy (2009).

In terms of occupation, the A8 workers tend to be concentrated in two groups – process plant and machinery operatives (21 per cent), and elementary occupations (36 per cent), while other migrants are found distributed across the occupations in more or less the same way as UK-born workers. However, this overall picture can hide certain tendencies – with workers from the Philippines, for example, tending to be found in health, care and domestic work, for example, or A8-born workers who arrived before 2004 being more likely to be working in managerial and professional jobs than those who arrived afterwards. A number of reports set out these features in more detail: the Institute for Public Policy research published a useful summary in 2007 (Sriskandarajah et al. 2007), while up-to-date figures are published on a quarterly basis by the Home Office (see ‘Further Information’ below), although these do not include figures for those not subject to immigration control, such as citizens of the European Economic Area (apart from the Worker Registration Scheme – see below). Much of the debate about immigration, particularly when related to work, tends to examine only economic factors. Although this chapter is largely concerned with migrants as workers, it is important to remember that not all who are working here came here primarily to find work. They may have come as refugees, to join members of their family, as students, or accompanying a spouse who entered to work. They may need to work, but they are not only units of production.

Immigration Law and Employment Although there is supposedly a right of free movement within the EU for EU citizens (or rather for European Economic Association (EEA) citizens – which includes Norway, Iceland and Lichtenstein, and to all intents and purposes Switzerland), this freedom is restricted when it comes to the right to work, for citizens of the central and eastern Member States who joined in May 2004 (the ‘A8’) and January 2007 (the ‘A2’).2 For the A8, for the first 12 months of their employment, they must register with the UK Border Agency via the Workers Registration Scheme (WRS), for a fee of £90. Until they have been working and registered for 12 months, they have no recourse to public 2

Bulgaria and Romania.

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funds – and cannot therefore claim Job Seekers’ Allowance (JSA) or housing assistance for example. This scheme must come to an end by the end of April 2011. A2 workers, at present, can only enter to work as self-employed, domestic workers, under the Seasonal Agricultural Workers and Sector Based Scheme (SAWS or SBS) or under the new PointsBased System (see below). Other EEA citizens have the right to work in UK. Some may be ‘posted’ to work in UK, that is to say they are normally employed in another Member State, but may be working temporarily in UK, for their normal employer, to fulfil a contract, see issues at work below. For so-called third country nationals (that is to say citizens of non-EEA countries), there are substantial restrictions on the right to work in the UK. The rules change frequently, and those needing specific guidance on a particular case will need to seek advice from a registered immigration adviser (the Office of the Immigration Services Commissioner maintains a list of such advisers – see ‘Further Information’). The Immigration Advisory Service (IAS) is a charity which may be able to provide free assistance to those who qualify for legal aid, but also offers a basic fee-paying telephone advisory service – see ‘Further Information’). However, in summary the situation is covered by the Points-Based System (PBS), which divides potential workers into a number of Tiers. Up-to-date and detailed information on the PBS can be found on the UK Border Agency (UKBA) website – see ‘Further Information’. The UKBA summarises the tiers thus: Tier 1 for highly skilled individuals, who can contribute to growth and productivity. Tier 2 for skilled workers with a job offer, to fill gaps in the United Kingdom workforce. Tier 3 for limited numbers of low-skilled workers needed to fill temporary labour shortages Tier 4 for students. Tier 5 for temporary workers and young people covered by the Youth Mobility Scheme, who are allowed to work in the United Kingdom for a limited time to satisfy primarily non economic objectives. UKBA web site [accessed 21 April 2010]

Tier 1 entrants will not for the most part be employees, although it also includes certain new graduates who have completed their studies in UK and been given permission to seek work here, and those previously admitted under the now closed Highly Skilled Migrant Programme. Tier 2 has replaced the Work Permit system for people with particular skills, and includes intra-company transfers. These workers require a sponsor who will be employing them, and their permission to enter usually requires that they continue in that job while in the UK. Workers cannot enter for more that 36 months, and the permission may be for less time. They may be able to apply to extend their period of stay. The Migration Advisory Committee, who makes recommendations on this to the government, monitors skills thought to be in short supply. Tier 3 is not currently in use.

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Students admitted under tier 4 can work for up to 20 hours per week during term time, and full time during vacations. However this has now been reduced to ten hours per week for students following a course below degree level, except those who are on a foundation degree course. Tier 5 includes temporary entry for sportspeople, performers and creative artists; cultural exchanges, domestic workers (as part of a household) as well as the Youth Mobility Scheme (previously known as Working Holidaymakers Scheme). The 2006 Immigration Asylum and Nationality Act considerably toughened the penalties for employers found to be breaking the rules by employing someone in breach of immigration legislation. For those who have failed to follow the documentation procedures (that is to say to ask for documentation which demonstrates that the worker may work in UK, and to make and keep a copy of the relevant sections of that documentation) and employed someone not entitled to do the work they are engaged in, then the employer can be subject to a civil penalty (of up to £10,000 per worker). Those judged to have knowingly employed a migrant who does not have the requisite permission to work could also be subject to criminal proceedings and face a maximum prison sentence of two years (or an unlimited fine). Enforcement activity by the UKBA has been stepped up, and their website now carries lists of those who have been subject to the civil penalty fines. However, a quick study of the lists will show a preponderance of catering businesses apparently run by ethnic minorities. Larger employers seem to be able to reach an accommodation with the authorities. Cleaning industry trade body, the Cleaning and Support Services Association (CSSA) points out in its guidance to members if they either report suspicions to the UKBA before an inspection, or cooperates with any UKBA investigation (by making employee records or premises available), then any penalty may be reduced, or take the form of a warning letter (CSSA, no date). The UKBA website also includes details of the documents which employers require in order to employ someone without risking fine or prosecution. Some employers may feel that it is too risky to employ some groups of workers, where there might be some doubt about appropriate documents. In the case of refugees, who often do not have passports, the relevant documents are likely to be unfamiliar. The Refugee Council has therefore issued detailed guidance on the kinds of documents that refugees (who are entitled to seek work) may have, see ‘Further Information’. These intensified controls have largely been supported by employers’ organisations (such as the Confederation of British Industry), although they have expressed concerns that some employers may not spot false documents, and therefore run the risk of fine or prosecution. The controls have been justified as reducing unfair competition between businesses, preventing those without permission to work taking jobs from those who have (such as UK citizens and those legally resident), and preventing downward pressure on pay and conditions. However, no evidence has been presented to demonstrate any of these as a consequence of the enforcement actions. In fact, it has been suggested by the Migrant Rights Network (MRN) that enforcement action may be making some workers more vulnerable (MRN 2008).

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Discrimination and Nationality Legislators are not unaware of the contradiction between employers’ obligation not to discriminate in employment practices, and their requirement under immigration legislation to avoid employing those without permission to work – who will essentially all be foreigners. A Code of Practice for employers was therefore published by the Border and Immigration Agency (the precursor to the UKBA) on avoiding unlawful discrimination (see ‘Further Information’). In summary, this points out that no steps should be taken in recruitment and selection that would discourage applicants because of their appearance or accent. Furthermore, all applicants, irrespective of nationality, should be asked to provide the necessary documents. However, some categories of worker (that is, mostly those who are subject to immigration control) need to have their documents re-checked at regular (that is, annual) intervals. It is impossible to do this without treating this group of workers differently, unless all workers are asked to represent documents every year (this is not suggested by the Code of Practice). But document checks are not the only form of discrimination that migrants may face. To give a few examples:

• Non-citizens right across Europe tend to have lower earnings than citizens – by up to 40 per cent on arrival. The gap diminishes with length of stay, but is only eliminated, on average after 18 years (Adsera and Chiswick 2007). • A study of care workers in the UK found migrant workers being less favourably treated than their UK-born counterparts in a number of areas including longer hours, less favourable shifts, no minimum guarantees of work, unpaid overtime, distribution of unpopular tasks and access to training and promotion (Cangiano et al. 2009). • An earlier study into the Northern Ireland hospitality industry found that employers tended to assume that migrants could only perform lower skilled jobs, so recruited them into posts in kitchens and housekeeping (Devine et al. 2007). The authors suggested that the lack of training and promotion might be related to employers’ view of international workers as being temporary in some way. • There is evidence of high numbers of particularly Polish workers not receiving the National Minimum Wage, and feeling obliged to work ‘non-standard’ and excessively long hours (Jayaweera and Anderson 2008).

Rights at Work Most rights at work should apply to all workers irrespective of their nationality. However, one of the problems faced by migrants is in enforcing them. This can be because some rights depend on service qualifications which newcomers do not meet, because they do not know their rights (and do not have the English skills to find them out), or because they have been misled about their employment status. It also arises because enforcing rights for the most part falls to the individual, who has to take a case to an Employment Tribunal – a process which can take six to nine months (or in some cases even longer). This is impossibly long for those who have no recourse to public funds (most non EEA migrants and those from both A8 and A2 countries), and so cannot claim any benefits if

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they have lost their job. In other cases, the workers’ presence in the UK may be conditional on them being employed in a specific job. Losing that job may lead to them having to leave the country or risk breaching immigration rules, thus rendering enforcement of rights through the tribunal system all but impossible. But there is a further problem for some workers. In employment law it has been held that a contract ‘tainted with illegality’ may be unenforceable. That is to say, if there is some unlawful element to the contract, such as an agreement to take pay in cash to avoid tax or National Insurance, then the other elements of the contract cannot be enforced. A similar argument has been applied to migrant workers who are working without legal permission. This could be held to mean that if an overseas student were to agree to work for more than the permitted 20 hours per week, they would have forgone all their employment rights. However, a recent case suggests that unscrupulous employers would be unwise to rely on this (San Ling Chinese Medical Centre v Lian Wei Ji, UKEAT/0370/09/ZT). In this case, the employer attempted to argue that because the worker had accepted wages lower than had been quoted to the UKBA, then her work permit was no longer valid, her employment unlawful and she was therefore not entitled to unfair dismissal compensation. The Employment Appeal Tribunal rejected that, noting that the worker had felt that she had no choice but to accept the lower wage, and furthermore that this in itself did not necessarily render the work permit (and therefore the contract) invalid. Though this is a welcome judgment, the odds are still weighted against workers, and some commentators and unions maintain that workers’ rights should be separate from immigration law (see for example Ryan 2005). Posted workers, that is those whose normal residence and employer are based in a member state, but are temporarily performing a contract in the UK, will have contracts based on the law and practice of their home country, but still be subject to at least the minimum legal provisions in the UK so far as minimum wage, working hours and holidays and anti-discrimination regulations are concerned. UK-based workers may also be posted to other Member States on this basis, for example in tourism or construction. Some guidance is available from the Business Link website (see ‘Further Information’). However in many other EU states, the protections provided will include the pay, hours and holidays set down in generally applicable collective agreements at industry level. At present the UK has none, although the terms set down in the Agricultural Wages Board (such as minimum rates for particular skills, and overtime rates) will apply to any workers posted into agricultural work. The Institute of Employment Rights published a book on employment rights and migration in 2005 (Ryan 2005), and it remains very useful, although the restrictions on migrant workers have changed significantly since then.

Issues and Good Practice at Work A concern that some express regarding migrant labour is that it is damaging the economic interests of ‘indigenous’ workers. In fact there is very little evidence to support this, certainly at the macro level. Studies carried out by the Department for Work and Pensions (DWP) and Home Office have shown no effect on jobs and wages (see for example Lemos and Portes 2008) while a study for the Low Pay Commission suggested that UK-born

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workers’ pay might increase slightly as a result of increased migration (Dustmann et al. 2007). It has been suggested that migrants have improved overall output as well as increased markets, and in expanding the supply of employed labour, increased betterpaid job opportunities (for example, in supervision and sales) which are then taken up by UK-born workers and longer-term residents. Furthermore, immigration took off at a time that employment was increasing, suggesting that ‘British workers’ were not in fact being denied ‘British jobs’ (although some have argued that the majority of ‘new jobs’ were going to migrants – which is very hard to demonstrate one way or another, see for example Nelson 2008). However, the evidence of recent arrivals being paid less than the rest of the workforce, and for migrants not being paid what they are entitled to suggest that there are problems, at least for the migrants themselves (Jayaweera and Anderson 2008). It may seem obvious that all workers in a workplace should have the same entitlements to pay and employment conditions, irrespective of their nationality or immigration status. However, the examples in the section on discrimination above show that this is not always the case. The existence of collective agreements and equality policies, if applied, should help to ensure non-discriminatory practice. In a number of areas, though, particular attention needs to be paid to avoiding unintended discriminatory consequences. These are considered below.

Recruitment Channels chosen for recruitment can have a potentially discriminatory effect. For example, recruitment through the ‘temp to perm’ route, when the agencies providing temporary staff are largely composed of particular groups of migrants recruited through word of mouth, will mean effective exclusion of other migrant communities and UKborn workers. Placing advertisements where they might prevent particular groups from seeing them or applying (for example, UK workers if vacancies are only advertised elsewhere in EU) may be discriminatory, or at least result in separation of different groups within a workplace. Working with Job Centres can ensure both local recruitment and, through EURES (the EU’s joint employment network), access to the public employment services of the rest of the EEA (see ‘Further Information’). Similarly, language requirements should be considered carefully .The Business in the Community Migrant Worker Integration Group (MWIG 2008) cited the example of labour provider Horizon European Recruitment running English screening for potential recruits online, and the setting of a benchmark of Level 2. If this proved not to be necessary for the work in question, this could discriminate against non-English speakers. On the positive side, a continuing programme of online learning is also provided. Guidance from the Equality and Human Rights Commission (EHRC) suggests that any language requirements should be reasonable in terms of the requirements of the job itself – what might be required for customer facing roles may not be for, say, warehouse functions. The Equality Commission for Northern Ireland (2006) made similar points about recruitment in general, saying: ‘employers should guard against having procedures and criteria that are more stringent than they actually need to be, particularly if this places migrant workers at a substantial disadvantage compared to other persons’. They give examples relating to incomplete application forms, academic qualifications and

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references, where normal requirements might discriminate unfairly if they are not really justifiable. However, an EHRC study in the meat and poultry industry found that some UK-born workers felt that agencies were selecting entirely from particular migrant communities (EHRC 2010), and the suspicion of similar practices by some contractors in the engineering construction industry was one of the factors behind the spate of ‘wildcat’ stoppages at the Lyndsey oil refinery site and elsewhere in early 2009. Skills for Care NW, in their Good Practice Guide (Skills for Care North West 2008), addresses these issues, suggesting that up-skilling locally available labour should feature in recruitment strategies. However, where recruitment from abroad is being considered, Skills for Care suggest a range of actions to be taken by employers, including:

• Explaining to the workforce why international staff are being recruited, including reassurance on protection of existing pay and conditions and involvement of existing staff in induction; and • providing written contracts and summaries of terms and conditions – which should be the same as those of existing staff – and ensuring that new staff have understood them.

Segregation The EHRC report (2010) found examples of manufacturers grouping workers together on production lines by nationality, on the basis that this improved communication between workers. I have heard reports of similar segregation onto particular shifts. As the EHRC reports, in the event that such variety of treatment based on nationality or language alone led to differential outcomes (such as earnings based on bonus, shift or overtime payments or more arduous work, for example), would be discriminatory. I also witnessed a food manufacturer announcing publicly, apparently with pride, that after conducting experiments with his workforce, the most productive permutation on a production line was one in which none of the workers could communicate with each other, by virtue of them speaking different languages. His conclusion was that they then would ‘waste’ no time talking to one another. Quite apart from the potential implications for safety, this is an extreme example (and one hopes an isolated one) of the attitude that sees workers in general and migrants in particular solely in terms of their capacity to generate profit for their employer. Again the use of agencies – often disproportionately composed of migrants – may lead to segregation if the work on which agency staff are deployed is markedly different from the rest of the workforce.

Language One of the notable shifts over recent years has been the increase in migration by workers who may not speak much (or any) English. Not surprisingly, a number of studies have shown that a lack of knowledge of English is associated with lower wages and greater job insecurity (Anderson et al. 2006; Schneider and Holman 2009). Failing to take into account the problems workers may have with understanding key documents may lead to inadvertent discrimination, but unions and advisers have also

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encountered examples of workers having been recruited with a document purporting to be their contract in their own language, then offered a version in English to sign – which may differ significantly from the original. Employment rights information has been provided in a range of languages by the TUC and a number of trade unions, and this practice has now been picked up by the government, who have made (very basic) guides to the minimum wage and other rights available online in a variety of languages (see ‘Further Information’). According to one study, employers (particularly small ones) provide little English language training, which is likely to exacerbate communication problems and may contribute to lack of integration between English and non-English speakers (Morgan and Finniear 2009). However, there is good practice now in evidence too, with employers, unions and other bodies organising English for Speakers of Other Languages (ESOL) courses, and campaigning for improved access to such training (see for example Evans et al. 2006 regarding the South West). Unfortunately, ESOL provision in Further Education colleges is under great pressure as a result of spending cuts at the time of writing. Some employers attempt to prevent workers from speaking to each other in their mother tongues. Since this is clearly a rule that would not be enforced against Englishspeaking workers, it is discriminatory unless it can be objectively justified in terms of job requirements – for example where the job is customer facing.

Qualifications The study by Devine et al. (2007) pointed out how employer preconceptions about international workers could result in their skills being under used. Another study of Eastern European migrants in Nottingham found that while 35 per cent had held posts in the three highest skill levels in their home country, only 12 per cent had such posts in the UK. Overall, 59 per cent had experienced a decline in their occupational level, and only 8 per cent an increase (Scullion et al. 2009). While some of this decline may relate to lack of English skills, at least some of it will also be due to non-recognition of qualifications. The Northern Ireland Equality Commission suggest that employers do not simply specify qualifications that could only be obtained in the UK, and are able to assess comparative qualifications from other countries. Advice and assistance is available for such purposes from the National Recognition Information Centre for the United Kingdom (UK NARIC) – see ‘Further Information’.

Dismissal/Redundancy While it may seem obvious that selecting staff for redundancy on the basis of their nationality would automatically be unfair on the grounds of discrimination, this could be one of the effects of the current Points-Based System. Consider the circumstances when there may be job cuts, including some jobs held by non-EEA nationals who have entered under the PBS perhaps as intra-company transfers, and offering suitable alternative employment could mitigate some redundancies. Under current rules, although it might be possible for the PBS staff to be given permission to change their jobs, the employer is, on the face of it at least, obliged to offer the alternative jobs first to suitably qualified EU citizens.

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All workers should understand grievance and disciplinary procedures, so consideration should be given to translating them. Those who do not speak English should be able to have an interpreter (who may be a colleague) present at formal meetings, in addition to their representative. Ensuring that any existing consultative structures (including trade unions) permit the involvement of all nationalities is vital in the event that there are collective redundancies under consideration. Most trade unions have policies which seek to organise migrants, and there are a number of examples of them taking on multi-lingual organisers and actively seeking representatives from migrant groups. Again, if temporary or agency workers are recruited from different communities than the permanent workforce, the result could be differential treatment when dismissals are taking place. Treating agency workers, as far as possible, equally may help to reduce this problem. It is of significance that in the EHRC study of the meat and poultry industry, Bernard Mathews was seen as an attractive option for both temporary and permanent staff, because they treated both groups equally in terms of pay and conditions. This puts the company ahead of the implementation of the Temporary Agency Workers Directive, which will entitle agency workers to equal treatment in key areas (such as pay and hours of work) to equivalent permanent workers – but only after they have been working for three months in the same job. A contributing factor to this policy is the company’s strong relationship with trade unions, who have taken up migrants’ concerns over recent years. Under current plans, the legislation applying to all employers will come into force in UK on 1 October 2011.

Health and Safety According to work carried out on behalf of the Health and Safety Executive, migrants are more likely than other workers to be employed in sectors or occupations where there are already health and safety concerns. Furthermore, their status as new workers may put them at risk (McKay et al. 2006). Although the study was not based on a representative sample, the results suggested that there might be a higher level of accidents than among UK-born workers. They also found a reluctance to report accidents, for fear of dismissal, or (in the case of undocumented migrants) deportation. The Trades Union Congress (TUC), in response to this report, published a guide on migrant workers’ safety aimed at safety representatives (TUC 2007). It sets out a number of recommendations – including that union safety representatives are likely to be more successful in protecting the safety of migrant workers when they come from the same communities. Also recommended is that risk assessments should take into account the presence of migrant workers – particularly considering previous work experience, perceptions of risk, language and literary skills, and training methods and materials. In this last category, the need to report accidents should be emphasised – and migrants’ (and other workers’) concerns about possible consequences of doing so addressed.

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Conclusion It is not possible to cover all of the issues relating to migrant workers in one chapter. However, I have identified a number of sources that provide more detail, including online resources, where the constantly changing boundaries of immigration control can be monitored. It is clear that migrant workers, particularly those who have recently arrived, or are working for short periods, can suffer discrimination and disadvantage in the workplace. This is exacerbated by language difficulties for non-English speakers and the problems caused by the restrictions placed on their employment by immigration law – particularly for those from outside of the EEA. These restrictions may seriously hinder the capacity of migrant workers to seek redress through the (in any case rather feeble) normal channels, and may require employers to act in a discriminatory way in order to stay in compliance with immigration laws. There is also a concern – even though it is largely unsupported by any evidence – that migration is damaging the interests of workers already here, particularly the UK-born. The concentration of recent migrants in certain areas of the economy (temporary work agencies and construction, for example), where they are likely to receive poorer pay and conditions than permanent and directly employed workers, exacerbates the perception that they may be dragging down pay. A good employer can do much to reduce this perception, in particular by minimising their use of temporary agency staff and so-called self employed contractors; by working against de facto segregation between workers of differing national origins; by paying attention to issues such as language requirements, training and qualifications and staff representation. However, there is also a need for changes in regulation and enforcement. In Ireland the recently-established National Employment Rights Authority (NERA) is able to inspect and enforce not only national minimum standards, but also some national agreements in areas where migrants may form a significant part of the workforce – such as agriculture, construction and contract cleaning. Much of the detailed information on the NERA website is available in 14 languages (see ‘Further Information’). They are also empowered to take action themselves, rather than rely on individuals to take up cases. This can help prevent compliant employers being undercut by the less scrupulous. Separating employment rights from immigration status so that all workers enjoyed the same rights at work would also assist in reducing the ease with which some migrant workers can be intimidated into accepting sub-standard terms and conditions. This would mean that the right, for example, to receive pay for work done and to be paid the National Minimum Wage, and should not depend on the worker having been granted appropriate permission to do the work in question. If a migrant worker could be confident that they would not be at risk of deportation if they left the employ of an abusive employer, they would have a better chance of standing up to the abusers. This would help migrant workers, those who support them, and the employers who do not stoop to abusive practices. And in the process, current anti-migrant prejudices can be undercut. Newsnight journalist Paul Mason frequently encountered xenophobic attitudes during a recent investigation into the UK economy, and he commended the ‘people trying to heal the fractiousness and mistrust of migrant workers through the ingenious means of getting them paid decent wages so the jobs and livelihoods of the existing

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workforce cannot be undercut’ (Paul Mason’s blog 29 March 2010). At present, the UK’s immigration regulations effectively undermine the protections anti-discrimination laws should provide to migrants, as well as employment rights which should apply to all.

Further Information Business Link Guidance on posted workers is available at: http://www.businesslink.gov.uk/bdotg/action/detail?r.lc=en&type=RESOURCES&itemId =1073791870&r.s=sl

EURES The EU’s joint employment services portal: http://ec.europa.eu/eures/home.jsp?lang=en

Home Office Quarterly immigration and asylum statistics are available from: http://www.homeoffice. gov.uk/rds/immigration-asylum-stats.html

Immigration Advisory Service (IAS) A charity that may be able to provide free assistance to those who qualify for legal aid and offers a basic fee-paying telephone advisory service: http://www.iasuk.org

National Employment Rights Authority Details of the new Irish body for enforcing workers’ rights can be found at: http://www. employmentrights.ie/en/

National Recognition Information Centre Information on comparability between UK and non-UK qualifications can be found at: http://naric.org.uk

Office of the Immigration Services Commissioner Maintains a list of registered immigration advisers: http://www.oisc.gov.uk

Refugee Council Publishes a guide on refugees’ documentation relating to the right to work, entitled Employing Refugees, see: http://www.refugeecouncil.org.uk/practice/employersguides

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TUC Information on workers’ rights in a variety of languages can be found at: http://www.tuc. org.uk/international/index.cfm?mins=288 The TUC report on migrant workers’ health & safety is at http://www.tuc.org.uk/ extras/safetymw.pdf

UK Borders Agency For up-to-date and detailed information on the Points-Based System see http://www. ukba.homeoffice.gov.uk/workingintheuk/ For details of the Code of Practice on avoiding illegal discrimination see http://www. ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventing illegalworking/

UK Government Information on the National Minimum Wage and other employment rights, in a variety of languages, is at: http://www.direct.gov.uk/en/Employment/Understanding yourworkstatus/Migrantworkers/DG_180915

References Acas (2006) ‘Back to basics. Acas’ experience of equality and diversity in the workplace’, Acas Policy Discussion Papers, No. 5 November. Adsera, A. and Chiswick, B. (2007) ‘Are there gender and country of origin differences in immigrant labor market outcomes across European destinations?’ Journal of Population Economics, 20, 495–526. Anderson, B., Ruhs, M., Rogaly, B. and Spencer, S. (2006) Fair Enough? Central and East European Migrants in Low-Wage Employment in the UK, Oxford: Centre on Migration, Policy and Society (COMPAS), May. BBC (2009) ‘Pressure on law chief after fine’, BBC News Channel, 22 September , http://news.bbc. co.uk/1/hi/8268101.stm. Cangiano, A., Shutes, I., Spencer, S. and Lesson, G. (2009) Migrant Care Workers in Ageing Societies: Research Findings in the United Kingdom, Oxford: COMPAS. CSSA (no date), ‘Briefing guidelines on the management of non-UK nationals’, London: Cleaning and Support Services Association. Clancy, G. (2009) ‘Employment of Foreign Workers in the United Kingdom (1997–2008)’, Office for National Statistics (ONS) at http://www.statistics.gov.uk/articles/nojournal/ EmploymentofForeignWorkersintheUKfinal.pdf. Devine, F., Baum, T., Hearns, N. and Devine, A. (2007) ‘Managing cultural diversity: opportunities and challenges for Northern Ireland hoteliers’, International Journal of Contemporary Hospitality Management, 19:2, 120–132. Dustmann, C., Frattini, T. and Preston, I. (2007) A Study of Migrant Workers and the National Minimum Wage and Enforcement Issues that Arise, London: Low Pay Commission, March 2007. Ecumenical Council for Corporate Responsibility (2009) Vulnerable Migrant Workers: the Responsibility of Business, Oxford: ECCR.

154 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Equality Commission for Northern Ireland (2006) Employing Migrant Workers: A Good Practice Guide for Employers Promoting Equality of Opportunity, Belfast: ECNI. Equality and Human Rights Commission (2010) Inquiry into Recruitment and Employment in the Meat and Poultry Processing Sector, Manchester: EHRC. Evans, C., Pye, J. and Smith, L. (2006) Migrant Workers: The Challenges for the South West, Learning Theme Report for Skills and Learning Intelligence Module, SW Observatory. Field, F. (2009) ‘You promised British jobs for British workers, Gordon – now you must make it happen’, Daily Mail, 1 February. Jayaweera, H. and Anderson, B. (2008) Migrant Workers and Vulnerable Employment: a Review of Existing Data, Report for TUC Commission on Vulnerable Employment, Oxford: COMPAS. Lemos, S., and Portes, J. (2008) The Impact of Migration from the new European Union Member States on Native Workers, Department for Work and Pensions Working Paper 52, June. McKay, S., Craw, M. and Chopra, D. (2006) Migrant Workers in England and Wales, an Assessment of Migrant Worker Health and Safety Risks, Sudbury: Health and Safety Executive. MRN (2008)‘Papers Please – The Impact of the Civil Penalty Regime on the Employment Rights of Migrants in the UK, London: Migrant Rights Network. Migrant Worker Integration Group (2008) ‘Position Paper’, London: Business in the Community, at http://www.bitc.org.uk. Migrant Workers North West (2007) Minimum Standards Charter. A Voluntary Code of Practice on Employing Migrant and European Workers, Salford Quays, Manchester: Migrant Workers North West. Morgan, A. and Finniear, J. (2009) ‘Migrant workers and the changing psychological contract’, Journal of European Industrial Training, 33:4, 305–322. Nelson, F. (2008) ‘Brown has exploited immigration to hide from deep problems’, The Spectator, 13 September. Pemberton, S. (2008) ‘Supporting economic migrants in the north west of England: implications for economic and social policy’, Public Policy and Administration, 23:1, 80–99. Refugee Council (2009) Employing Refugees. A Guide for Employers: Documents Providing Evidence of Entitlement to Work, London: Refugee Council. Ryan, B. (ed.) (2005) Labour Migration and Employment Rights, London: Institute of Employment Rights. Schneider, C., and Holman, D. (2009) Longitudinal Study of Migrant Workers in the East of England, Cambridge: Anglia Ruskin University, for East of England Development Agency, January. Scullion, L., Morris, G. and Steele, A. (2009) A Study of A8 and A2 Migrants in Nottingham, Salford Housing and Urban Studies Unit, University of Salford. Skills for Care North West (2008) Good Practice Guide on the Recruitment and Retention of International Workers in the Social Care Sector, Leyland Lancashire: Skills for Care North West. Somerville, W. and Sumption, M. (2009) Immigration and the Labour Market: Theory, Evidence and Policy, Manchester: Equality and Human Rights Commission. Sriskandarajah, D., Cooley, L. and Kornblatt, T. (2007) Britain’s Immigrants, an Economic Profile, London: Institute for Public Policy Research. Sutton Guardian (2010) ‘Illegal immigrants discovered working at Sutton and Epsom and Merton hospitals’, Sutton Guardian, 7 January, at http://www.suttonguardian.co.uk/news/4836659.Illegal_ immigrants_discovered_working_at_hospitals/. TUC (2007) Safety and Migrant Workers, A Practical Guide for Safety Representatives, London: TUC. UK Border Agency (2008) Prevention of Illegal Working. Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice while Seeking to Prevent Illegal Working, Code of Practice, London: UKBA.

chapter

12 Management Handling of Religion and Belief in the Workplace: Challenges and Solutions

MARTIN MITCHELL, CHRIS CREEGAN AND SARAH DICKENS

Introduction The Employment Equality (Religion or Belief) Regulations came into force in December 2003, making it illegal for employers to discriminate against workers on the grounds of religion or belief. These regulations raised important new challenges for employers when trying to treat people fairly and without discrimination in the workplace. The regulations have been subsequently restated by the inclusion of religion and belief as one of the ‘relevant protected characteristics’ within the Equality Act 2010. This chapter reports on research commissioned by the Advisory, Conciliation and Arbitration Service (Acas) and the Chartered Institute of Personnel and Development (CIPD) – and conducted by the National Centre for Social Research – which examined religion and belief challenges faced by employers and managers at a time when the 2003 regulations were being embedded. Following a brief discussion of the legal and research terrain in this area, the chapter outlines the main issues, challenges and solutions related to religion and belief discussed by employers and managers in the study. This is then followed by an exploration of other, more generic issues identified in terms of delivering equality and fairness in the workplace related to religion and belief. Although focused on religion and belief, the discussion of the practicalities of implementing equality and diversity measures is likely to have relevance to those concerned with introducing policies and practices in organisations across all the equality strands. Finally, the potential for conflict between the regulations relating to religion and belief and sexual orientation are raised as well as possible solutions to these issues. The chapter also illustrates the use of the research technique of a deliberative event to capture the views and experiences of managers and draw out potential solutions to challenges encountered.

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The Legal Context There was considerable discussion of the scope of the religion and belief regulations during the early stages of their implementation (see Fitzpatrick 2007). Under the Equality Act 2006, the regulations were clarified so that (a) ‘religion’ meant any religion; (b) ‘belief’ meant any religious or philosophical belief; (c) a reference to religion included a reference to a lack of religion; and, (d) a reference to belief included a reference to a lack of belief. In practice this means religion can be interpreted widely to include less established religions as well as those more commonly known such as Christianity, Judaism, Islam, Hinduism, and so on. Belief has also been interpreted fairly widely to include any belief that resembles a religion or that means holders of the belief have deep-seated views (for example, pacifism, paganism, humanists, vegans, and so on).1 A reference to a lack of religion or belief means that atheists or non-believers are also protected by the regulations. Employment Tribunals and other courts have the jurisdiction to decide whether particular beliefs or circumstances are covered by the regulations. The 2003 regulations apply to all employment and vocational training and include issues such as recruitment, terms and conditions, promotions, transfers, dismissals and training. They cover direct discrimination, indirect discrimination, harassment of employees on the basis of religion and belief and victimisation of any person making a claim or giving evidence in support of a claim of such discrimination. Another significant issue relates to genuine occupational requirements, such that exceptions under the regulations can be made if there is a proven requirement for an employee to be of a particular religion or belief in order to comply with the religious belief or ethos of the organisation (see Acas 2006a).

Previous Research and Employment Tribunal Decisions Cases of Religion and Belief Discrimination Research by Fitzpatrick (2007) identified information on 863 religion or belief cases in 2005–2006 based on published employment tribunal decisions, higher court judgments, Acas records and other information from the Employment Tribunal Service (p. 5). Savage (2007: 5) also provides a statistical analysis of Acas case records of all religion and belief cases brought between January 2004 and August 2006, with two thirds of these having race as a secondary jurisdiction. Cases at employment tribunals where claimants have won their case have included direct discrimination (such as failure to recruit people or dismissal on the basis of their religion) and indirect discrimination related to terms and conditions, such as those outlined below. Research on the experiences of employees who made complaints or took out formal grievances found that alleged unfair dismissal and discrimination in terms and conditions were significant issues (Denvir et al. 2007: 8). Discrimination relating to terms and conditions that made religious observances impossible was particularly significant for claimants (ibid.: 3). These issues emerged as the ‘dominant theme of the calls received by 1 However, political beliefs, such as membership of the British National Party (BNP), have been excluded from coverage by the legislation.

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the Acas helpline’ (Savage 2007: 6). Inflexibility by employers in accommodating religious observances have also been reflected in employment tribunal decisions in favour of some claimants, such as that of a Christian woman who resigned from her job because she felt that she was unable to attend church on Sunday after revised changes to her shift patterns.2

Employment Tribunal Decisions Despite cases in favour of claimants described above, employment tribunals have not always taken such a view. Fitzpatrick (2007) has noted the ‘unwillingness of tribunals to treat issues of religious adherence as a direct discrimination issue’ (ibid.: 46), preferring instead to view them as indirect discrimination. By doing so, employers against whom a claim is made ‘are given the opportunity to objectively justify their treatment of the individuals concerned’ (ibid.: 10). Where employers can show that they have attempted to accommodate religious needs, that the discrimination has a legitimate business purpose, and/ or that the treatment is proportionate, then it can be justified. An example was a classroom assistant who was told that she could not wear the niqab (a veil covering all of the face except the eyes) while teaching pupils because of the way in which it affected communication with them.3 Another theme to emerge in the literature was of ‘organisations with a religious ethos reportedly discriminating in areas such as promotion on the basis that claimants did not have a religion or was from a different religion’ (Denvir et al. 2007: 8). Associated with this were cases where religious organisations had attempted to apply ‘genuine occupational requirements’ incorrectly. A notable example was the case of a non-Catholic teacher who was turned down for a new post within his Catholic school where the tribunal ruled that the general operational requirements (GORs) were overly restrictive and therefore inapplicable.4

Management Handling of Claims of Religion or Belief Discrimination What little research that there has been on the management of religion and belief in the workplace suggests that managers have in the main been unsuccessful at implementing effective policies to deal with these issues. In particular, they have been found to feel ‘deficient in the capacity to deal with religion and belief issues, with many employees lacking faith in them to adequately handle cases of religion or belief discrimination or harassment’ (Denvir et al. 2007: 9). Poor handling of cases has also brought about negative impacts for employees making claims, such as mental health problems or having to change jobs or move away from a specific area (ibid.). Despite the existence of good practice guidance on the handling of religion and belief issues by employers (for example, Acas, 2006a; CIPD 2008a and 2008b), there was also an awareness that this would need to be reviewed in relation to the actual experiences of employers once the legislation had bedded down. 2 Williams-Drabble v Pathway Care Solutions (Case No. 26017118/04 (4837/112) January 2005 (see Fitzpatrick 2007: 39–40). 3

Mrs A Azmi v Kirklees Metropolitan Council (Case No 180450/06) October 2006 (see Fitzpatrick 2007: 25–27, 41–42).

4 Mr D McNab v Glasgow City Council (S/107841, March 2006) (see Fitzpatrick 2007: 20–23).

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The Research Aims and Objectives The research discussed in this chapter was part of a wider study on managing religion and belief and sexual orientation discrimination in the workplace, commissioned by Acas and the CIPD and conducted by the National Centre for Social Research (Dickens et al. 2009). The main aims and objectives of the study as they related to religion and belief were to:

• Gain a better understanding of the experiences, knowledge and challenges facing employers in handling of these issues; and • seek ideas to facilitate the positive handling of these aspects of employing people with a view to creating harmonious workplaces and fair treatment.

Methodology The research took the form of a one-day deliberative event held in June 2008. This involved using stimulus materials to enable participants to go beyond their current knowledge and understanding and to identify potential solutions and strategies in relation to the challenges identified. Participants were drawn primarily from the CIPD’s membership database, although selected participants were also invited via Acas and the Trades Union Congress (TUC). Participation was voluntary, but careful monitoring of the organisations that volunteered meant that it was possible to achieve a purposive and diverse sample in terms of the size of organisations; employers from the private, public and voluntary sectors; and managers with a variety of different types of management experience (for example, chief executives, line managers, human resources managers). There were 48 participants, who were divided into four groups:

• • • •

small employers;5 medium employers (line managers); medium employers (human resources managers); and large employers.

Each group had a morning and afternoon session. All sessions were digitally sound recorded, transcribed verbatim and systematically analysed using thematic analysis. Where contributions or case examples are discussed below, they have been anonymised, except where the organisations or individuals involved gave their consent for their organisation to be named.

5 Small employers were defined as 1–99 employees; medium employers as 100–4,999 employees; and large employers as 5,000 to over 20,000 employees.

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Challenges and Solutions Relating to Religion and Belief Reflecting the previous research and tribunal cases described above, religion and belief issues identified by employers in the study tended to be focused on indirect discrimination and the practical aspects involved in accommodating religious observances. Discussion among the participants in this study focused on three main challenges:

• Distinguishing between reasonable and unreasonable religious observances in the context of the balance to be struck between religious needs and business needs;

• dealing fairly with competing needs between religious employees and other employees; and

• the practicalities of accommodating diverse needs of employees in terms of religious observances.

Accommodating Religious and Business Needs There was agreement among the managers that they should try to accommodate religion or belief needs wherever possible, but that this should be balanced against the need for an organisation’s business case to remain the priority (a topical example discussed at the time was the case of a British Airways employee who felt that she was being discriminated against for not being allowed to wear a crucifix at work6). Key to responding appropriately was the capacity of managers to distinguish between actual and perceived religious needs. Achieving the right balance between accommodating reasonable demands, versus disallowing demands that were considered unreasonable was identified as a further potential difficulty. These issues were thought to be particularly challenging for managers who lacked confidence and knowledge in this area. Understanding the difference between actual and perceived religious needs was thought to depend on access to good training and succinct information about various religions and beliefs; whilst balancing religious and business needs was thought to depend on building knowledge of case law that would allow managers to have confidence in their decisions. The key issue here was felt to be that, while employers should avoid indirect discrimination and adopt good practice in accommodating reasonable demands where possible, they needed to be confident that the regulations do not oblige them to do so (for example, giving time off or providing religious facilities where this conflicts with the needs of business). The response of the employers and managers in the study suggests that existing information needs to be better promoted (see also below). Notably, information is already available about religious holidays and faith requirements (for example, Multi-faith net;7 Acas 2006a, 39–50), and guidance and reviews of case law on the religion and belief regulations do make reference to balancing religious and business needs (for example, Acas 2006; Fitzpatrick 2007). An example of a case where an employment tribunal 6 This was another case that gained significant media attention. Although the complainant, Nadia Eweida, initially lost her case that she should be allowed to wear a crucifix, British Airways eventually backed down over its policy after a storm of criticism from government ministers and Church of England bishops. (see, for example, http://www.xperthr. co.uk/blogs/employment-intelligence/2009/03/religious-discrimination-briti.html)[accessed 29 January 2011]. 7 Multi-faith net is a website that details the cultural differences and customs of different religions. It can be accessed at: http://www.mutlifaithnet.org [accessed 29 January 2011].

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thought that the business case outweighed religious needs was where a Muslim maths teacher was told that he would have to teach on a Friday afternoon during prayer time in the context where the school was underperforming in his subject.8 Being clear to employees about the organisation’s ethos in relation to diversity, and what this means in terms of employee’s rights and responsibilities was considered to be the way of avoiding unreasonable religious demands before they arose. Open discussions with employees about organisational requirements prior to them joining, or preceding a change to their working environment once they had joined, were thought to offer ways forward in this respect.

Competing Needs of Religious Employees and Others The discussion of potential conflicts between different equality strands focused on whether there should be a hierarchy of needs, or whether everyone’s needs should be treated equally. In particular, there was uncertainty about whether employees requesting time off for religious observances should take priority over those requesting time off for other reasons, for example, social or family obligations. An additional concern was that conceding to one employee’s demands but not others would create resentment amongst a ‘disenfranchised majority’ that often appeared to be unprotected by law. In addition to this was the fear of so-called ‘blank equalisation without any form of differential treatment’. This referred to the concern – held amongst large employers in particular – that trade unions would press for specific concessions made in particular and specific circumstances to be widened to encompass all employees, which was thought to be practically unworkable. Suggested ways of dealing fairly with competing needs of religious employees and other employees were to aim for a transparent, open allocation system in terms of working days; trying not to favour one employee’s needs over another; and adopting flexible working practices. For example, one organisation represented in the research allowed employees to take alternative bank holidays so that they could observe their own religious festivals where these differed from those in the Christian calendar. In another large organisation, half of the staff were on flexible rosters because of the nature of their work, which enabled the employer to accommodate time off for particular religious observances, as well as for other non-religious reasons.

Accommodating the Diversity of Religious Observances In addition to the need to take time off, the practicalities of accommodating the potentially diverse religious needs of employees were discussed in relation to the provision of prayer rooms or other facilities. Larger organisations such as Transport for London (TfL) had established over 15 different faith rooms. However, smaller organisations with less capacity had also made a room available as a general faith room, although in some cases problems had arisen when different groups wanted to use the room at the same time. Where the provision of prayer facilities for a number of faiths was not possible within existing space, other organisations such as the British Library had negotiated access to 8 Mayuff v Governing Body of Bishop Challoner Catholic Collegiate (3202398/04, December, 2005) (see Fitzpatrick 2007: 42–43).

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local facilities with faith leaders and listed them on their website. Notably, St Ethelburghs (2008) has also produced best practice guidance on providing prayer rooms and quiet spaces at work.

Generic Challenges and Solutions In addition to the challenges identified related to religious observances, a number of other challenges were discussed that concerned the management of religion and belief in more generic ways, and that may also apply to implementing equality in relation to other protected characteristics. These are discussed below.

Building Knowledge and Understanding A key challenge was thought to be the need to build the knowledge and understanding among managers about religion and belief issues, and to do this through improved awareness of case law and appropriate training. Lack of knowledge and understanding of religion and belief issues in the workplace was thought to stem from the fact that religion and belief was a relatively new equality ‘strand’ where there was a shortage of best practice examples and case law from which to draw guidance. There was a concern that a fear of litigation could result in managers avoiding tackling situations of conflict, overcompensating by making inappropriate concessions, or delegating the issues encountered to human resources departments without any direct engagement. As discussed above, because such case law and good practice guidance is now being developed, this study suggests that employers and managers may be unaware of it, or that existing guidance is not meeting their needs. Key solutions identified are:

• Better signposting to relevant case law information that is accessible and authoritative; and

• improved training that focuses on equipping people with the practical skills and knowledge of religion and belief issues in the workplace. Acas was referred to several times as a useful source of information on the ‘dos and don’ts of particular religious beliefs’, tackling discrimination in employment, addressing problems or issues in relation to religion and belief in the workplace, and reviewing or writing policies (Acas 2006a and 2006b), as was the CIPD (CIPD 2008a and 2008b). A number of other useful sources were also listed (see Dickens et al. 2009: 48–50). Examples of good practice cited by employers and managers as having helped build organisational knowledge and understanding of religion and belief tended to focus on developing appropriate training, although clear signposting to examples of case law, drawing on existing staff knowledge (for example, human resources, staff faith groups and so on), and seeing how other organisations had responded to religion and belief issues were also mentioned. Good practice in relation to training meant that all staff within an organisation should receive diversity training, and that refresher courses should be run when new developments in equality and discrimination laws occurred. Basing training around actual previous incidents in the workplace was mentioned by some as having been particularly successful, as was incorporating some scenario-based

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role play. For example, delegates played the role of a manager talking to someone who felt that they had experienced harassment on religion or belief grounds, or participated by stopping the interaction they were observing at junctures where they felt a party had responded inappropriately. Other ways of improving training included:

• Including diversity issues in more generic training as well as in specific diversity courses (for example, a course around negotiation).

• Having diversity training that was related to specific roles (for example, training with line managers that focused on handling difficult conversations and tackling grievances and displays of intolerance). • Line managers following up diversity training after the event (for example, discussing with staff why they were going on the training and how it would affect their practice). Notably, not all of these training strategies were available to smaller or mediumsized employers (SMEs) and a number of suggestions were made to facilitate training in this respect. Suggestions to improve training for SMEs included employer forums (for example, Chamber of Commerce) acting as information brokers on good practice; larger organisations acting as mentors to smaller ones; and web-based tools to allow small businesses to ‘self-diagnose’ their equality performance and develop appropriate strategies where problems were identified.

Managing and Sustaining Change in Organisational Culture Two key concerns emerged here. The first was how to deal with displays of intolerance or antagonism from work colleagues, for example, teasing or jokes or harassment around a colleague’s religion or belief. The second was how to overcome both employee and employer fears of raising issues of religion and belief and their concerns about saying ‘the wrong thing’. A number of important strategies were identified for attempting to address these issues. The first was through a demonstration of leadership in relation to equality and diversity issues. Participants emphasised that senior managers had a vital role to play in making an organisation’s values with respect to the diverse make-up of its staff explicit from the pre-recruitment stage onwards. This involved:

• Demonstrating active support for the equality and diversity agenda; • conveying a clear business case for embracing staff differences (for example, the benefits of having a large talent pool to draw from); and • giving a clear indication about what was and was not acceptable, and implementing this message by disciplining or dismissing employees who behaved in an intolerant way, according to appropriate legal and organisational procedures. The second way to manage and sustain change was through signalling support for diversity, equality, fairness and respect in the workplace. The organisation of staff events that promoted acceptance of different religions and beliefs or to support staff faith groups or networks were suggested. Examples were the celebration of different religious festivals or more informal days when employees were encouraged to bring in food and talk about practices relevant to their religion or culture. Support for religion and belief diversity was also signalled by permitting staff faith groups (see Case Study 1).

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Case Study 1 – successful use of staff network groups (Transport for London) TfL has seven staff network groups including faith network groups. The groups are selfmanaged, and TfL provides specialist and budgetary support. TfL did a lot of promotion work in the beginning to get these groups started, and initially provided an event around which they could participate, to give them a sense of purpose, for example to feed into a DVD, or managers’ guidance. The TfL representative stressed that the groups are not intended to usurp the role of trade unions, but are largely used to give an indication to management about whether TfL’s commitment to and policies around diversity are working on the floor. The groups are sponsored by managing directors and directors.

A third way to achieve and sustain change in organisational culture was by promoting greater staff consultation about diversity and equality issues, including religion and belief. Two strategies were mentioned. The first meant creating a culture where it was acceptable to make mistakes (provided the mistake was not intentionally harmful or upsetting); for example, by making it clear that conversations which enable people to learn about each other in a positive way would be encouraged. The second involved regular staff consultation about the types of issues coming up and how they could be best resolved (see Case Study 2).

Case Study 2 – tackling bullying and harassment (organisation anonymised) As a result of a serious incident of racial discrimination, an organisation (following recommendations by the Equality and Human Rights Commission) introduced a working group, whereby managers and frontline staff meet several times a year, on a rotating basis. The purpose of these meetings is to go over best practice and issues in relation to diversity in the workplace and how to resolve them. Out of these meetings, training has been developed that is delivered to all the managers and frontline staff. They also have work-time ‘listen and learn’ sessions that are run for half an hour every week, for every employee throughout the business where employees can express issues that concern them including bullying and harassment.

Good practice in relation to managing and sustaining organisational change was also discussed in terms of mainstreaming and cascading. Mainstreaming ensures that good understanding and management of religion and belief are entrenched throughout the organisation, and do not just sit with organisational leadership or human resources. For example, one organisation went about this by having a weekly ‘cascade mechanism’, passing information from the executive meeting down to senior leads, who then informed their teams. Another approach was to introduce targets or performance indicators:

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one employer said that every manager in her organisation had specific targets in relation to equality and inclusion. In this way managers could be held accountable for equality and diversity in the same way that they were held accountable for budgets and health and safety targets or indicators.

Handling Complaints and Grievances The handling of complaints and grievances was the main area of day-to-day challenge raised by employers and managers during the study.9 More specifically the challenge was to overcome management ignorance or fear of dealing with complaints or grievances about intolerant cultures – for example, those which permitted teasing or jokes around an employee’s religion or belief – and how to prevent these issues escalating by addressing them early and tapping into appropriate sources of support. Related to this was the challenge to make employees feel confident that they could trust their employer to deal with their grievance, rather than ‘keeping their head down and putting up with banter’ for fear of a backlash, or further harassment. Without this trust, it was felt that employees would be unlikely to disclose issues of discrimination and harassment and that issues of religion and belief discrimination would be forced underground. Having clear procedures for handling complaints and grievances was mentioned by several as a way of dealing with these issues, as well as ensuring that they were clearly disseminated throughout the organisation. Alongside these policies, it was felt to be important that managers receive support and training in their implementation, particularly in relation to appropriate early implementation of grievance procedures to prevent a situation becoming further inflamed, versus where it might be more fitting to intervene informally in the first instance. Another key aspect of training was that managers should be equipped with the basic requisite skills around handling difficult situations and having difficult conversations. However, it was felt that managers should not always have to deal with these issues on their own. Instead, they needed to be enabled to tap into appropriate sources of advice and support when handling conflict – whether more senior management, human resources, external agencies or mediation services. Several organisations represented in the research specifically said they had used mediation experts, whether external or internal, to step in and assist managers in resolving conflict. One organisation, for example, spoke of having a mediation service which operated independently of human resources. They regarded it as a way of encouraging employees to reach a mutual understanding of the issues, and to move forward and work together in a positive way.

Equal Opportunities Policies and Practices Challenges related to equalities policies and practices were discussed in two main areas; making policies accessible and relevant, and equal opportunities monitoring. In relation 9 Recruitment was another area of day-to-day practice discussed during the deliberative event, although this was largely in response to a scenario provided by researchers rather than as a result of issues raised by participants themselves. The decision to focus on management handling of complaints and grievances is taken in this context. Good practice in relation to recruitment is relatively well understood (for example, see Acas 2006a: 12–14).

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to the former a number of challenges were mentioned, these being how to integrate religion and belief with other equality strands, for which there existed more abundant case law; and how to make equal opportunities policies accessible, relevant, up-to-date and easy to access. Learning from, and benchmarking with, other organisations was considered to be a useful way of making equal opportunities accessible and relevant, while also being able to develop appropriate policies in a context where case law and good practice guidance were still relatively scarce compared to other protected characteristics such as race or gender. Learning from other employers could be pursued, either by researching the websites of major companies to tap into their good practice, networking with colleagues, or through employers’ forums or federations. Two other general aspects of good practice in relation to equal opportunities were described. The first was to treat equal opportunities polices and procedures for handling discipline and grievance issues as active, working, practical documents (for example, including concrete examples in training, making sure that the language was accessible and user-friendly). The second was to ensure that policies were regularly reviewed and modified in the light of changes to legislation thereby treating them as works in progress. Knowledge of and opinions about equal opportunities monitoring of employees’ religion and belief varied quite widely. At one end of the spectrum was the opinion that requesting information about religion and belief when new employees joined an organisation was intrusive and unnecessary. Conversely, others argued strongly that monitoring was critical in enabling employers to track recruitment and promotion by different groups, and employ positive action where the monitoring showed it to be necessary. A further argument in its favour was that it signalled to employees that an organisation took religion and belief issues seriously. Whatever people’s views about monitoring, the major obstacle was agreed to be overcoming employee reluctance to disclose religion or belief on monitoring forms. One of the main stumbling blocks was felt to be employees’ lack of certainty on joining an organisation about how accepting it was to people from particular groups. A further challenge was felt to be achieving employer support for the principle of equal opportunities monitoring. More practically, participants also raised the issue of how organisations could best use monitoring data to assist with their diversity policies and strategies in meaningful ways. The feeling was that sometimes the data just ‘sat there in HR’ without any clear organisational understanding of why it had been collected. A number of strategies were discussed in terms of overcoming reticence about equality monitoring and gaining support for it. In one case, an organisation had started to overcome low response rates by changing the original monitoring form to explain why they were monitoring. Vital here was a clear explanation of why the organisation was asking for the information, also providing reassurances about who would see it, and emphasising that the data was being collected to promote equality and fairness. Acas (2009: 28) has subsequently produced a sample explanation and categories used to monitor religion and belief. In other cases the value of having support networks for staff alongside monitoring was also stressed; for example, one participant’s organisation had publicised the presence of staff network groups on the monitoring forms, which they felt had improved response rates, and increased membership of the groups.

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Using monitoring data as a tool to effect change and improve practice in relation to religion and belief was also cited as good practice. Some organisations had carried out specific equality impact assessments in relation to religion and belief as well as the other equality strands. There was a feeling that where done well, this practice could give organisations concrete information about their organisational performance (for example, in relation to the career progression of people from different groups). Finally, there was also a view that best practice should ideally involve the implementation of equal opportunities policies and practices in combination in order to optimise impact, and that there were risks attached to implementing initiatives in isolation. For example, equal opportunities monitoring was not thought likely to be successful without other demonstrations of organisational acceptance.

Potential Conflict Between Religion and Belief and Sexual Orientation Regulations A specific concern among employers and managers was that there was the potential for conflict between the religion and belief regulations and the Employment Equality (Sexual Orientation) Regulations (2003) designed to promote equality and protect workers from discrimination based on sexual orientation. On the one hand there was the view that open discussion of sexual orientation in the workplace could create difficulties for employees who hold views that homosexuality is wrong or should be a private matter. On the other was the view that the religion and belief legislation could be used to create opportunities to justify discrimination against lesbian, gay and bisexual colleagues or service users. Mitchell et al. (2009) found that there were three ways in which the religion and belief regulations might potentially be used to discriminate against lesbian, gay and bisexual (LGB) employees. These were to: 1. Use the provision related to ‘genuine occupational requirements’ (GORs) to exclude

LGB people as employees from organisations with a religious ethos (as in the case where the Church of England attempted to block the appointment of a gay man to the role of a youth worker, which was ruled unlawful by the Tribunal10). 2. Use religious beliefs about homosexuality to avoid having to deal with LGB members of the public on grounds of religious conscience (as in the case of the Islington Registrar who refused to conduct same-sex civil partnerships11). 3. Justify prejudiced treatment or harassment of LGB colleagues on grounds of freedom of religious belief (as in the case of a Christian man who distributed biblical extracts hostile to homosexuality to his work colleagues12). 10 John Reaney took the Hereford Diocesan Board of Finance to an Employment Tribunal after his appointment to the role of youth worker was blocked on the grounds of his sexual orientation by the Bishop of Hereford. (see for example, http://www.thinkinganglicans.org.uk/archives/002903.html). The use of GORs have also applied to failed attempts to restrict recruitment, promotion or training to people who are members of a particular religion over others who hold different or no religion (see McNab v Glasgow City Council above in Fitzpatrick 2007: 23). 11 In this case the Registrar, Lillian Ladele, argued that as her religion taught her that same sex partnerships are morally wrong she could therefore not perform civil partnership registrations ‘as a matter of religious conscience’. Discussion of the decision of the Employment Tribunal in favour of Ms Ladele and the subsequent overturning of this decision in favour of Islington Council can be found at: http://www.secularism.org.uk/islingtonchristianregistrardecis1.html. 12 Mr T Apelogun-Gabiels v London Borough of Lambeth (see Fitzpatrick 2007: 28).

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This research found that fears about discrimination against LGB people based on religion and belief were based more on concerns about potential clashes rather than actual widespread experiences of this kind. There was discussion, however, about how to manage employees with religious views that were hostile to homosexuality, how to address issues of sexual orientation without offending people with deeply held religious beliefs, and how to prevent such difficulties from escalating. Two uncertainties about how to manage such issues were raised. The first was whether homophobic actions (such as the distribution of homophobic material in the workplace) could only be deemed an offence if they were proven to have had a negative impact on other employees within the organisation. Whereas some thought that this possibly was the case, others felt strongly that such an action should not be judged according to its impact, but about whether it was acceptable or not to the organisation in principle based on its policy and legal requirements. A second uncertainty was how to deal with a case where an employee fulfils the technical duties of his/her role, and displays no overt intolerance, but harbours private views which, if widely known, might result in a negative impact on attempts to create a diverse and respectful organisational culture. This was felt to be a particular issue where the employee was a figurehead of the company in some way. A specific example given was of a diversity officer who did not want his role to involve actively having to condone the acceptability of homosexuality. Although this meant in principle that he could fulfil all his job requirements, the concern was that this gave out a bad message to LGB employees. A reverse example might be a gay or lesbian diversity officer who was explicitly anti-religious. A number of approaches and solutions were put forward to address these issues. Creating a culture of tolerance and respect, coupled with an emphasis on distinguishing between private views and professional behaviour in the workplace, was one approach noted. Here it was emphasised that organisational policies needed to be specific that behaviour beyond certain points will not be tolerated, and could result in dismissal (for example, blatant disregard for another employee, hateful behaviour, harassment, bullying, and so on), and that professional behaviour would be expected at all times. Notably, some research indicates that people with religious beliefs are not necessarily homophobic and do make such a distinction between their private views and their professional role (Hunt and Valentine 2008: 7). Employers also noted the importance of respecting people as individuals and encouraging employees not to define people by their sexual orientation or religion alone. Ways of gaining support for a culture of diversity and respect between people from different groups were also raised. One approach was to tackle potential discrimination and harassment by focusing on the unfairness of discrimination, harassment or bullying rather than treating the issue of one of sexual orientation or religion or belief. Another approach was to attempt to galvanise employees with different beliefs around common work goals. Participants considered dealing with HIV as a particularly successful example of LGB and African communities (in which there were large proportions of people with religious beliefs hostile to homosexuality) working together and overcoming differences. Where conflicts arose, employers and managers also discussed the use of internal or external mediation services. An example of this was the use of an industrial chaplaincy service to talk to a religious group about why they felt that having openly gay employees in their workplace was a problem, and to put forward management’s perspective. The service had then brought the religious group and gay employees together to talk through and resolve these issues.

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Conclusion Specific challenges faced in relation to the management of religion and belief in the workplace tended to focus on accommodating religious observances in the workplace, particularly: distinguishing reasonable and unreasonable religious observances in the context of business needs; dealing with competing religious and other employees fairly; and the practicalities of accommodating religious needs. In addition, a number of generic challenges were identified, as well as the potential for conflict between religion and belief discrimination and discrimination based on sexual orientation. Although it was not possible to identify an exhaustive list of examples of good practice and solutions to the challenges raised within a one-day deliberative study, this method was found to be an effective means of generating discussion of issues and potential solutions. This research therefore makes a significant contribution towards beginning to establish the nature of religion and belief issues from an employer perspective, and an important start in generating potential solutions to the challenges identified. In addition to the examples of good practice and possible solutions discussed here and in the full report of the study (Dickens et al. 2009), the research has also contributed to guidance on delivering equality and diversity recently produced by Acas (2009) and the CIPD (2009).

References Acas (2006a) ‘Religion or belief and the workplace: A guide for employers and employees’, at http:// www.acas.org.uk/CHttpHandler.ashx?id=107&p=0 [accessed October 2008]. Acas (2006b) ‘Tackling discrimination and promoting equality: Good practice guide for employers’, at http://www.acas.org.uk/CHttpHandler.ashx?id=318&p=0 [accessed October 2008]. Acas (2006c) ‘Sexual orientation and the workplace: A guide for employers and employees’, at http://www.acas.org.uk/CHttpHandler.ashx?id=105&p=0 [accessed October 2008]. Acas (2009) ‘Delivery equality and diversity’, at http://www.acas.org.uk/CHttpHandler.ashx? id=1048&p=0 Chartered Management Institute (2008a) Embracing Diversity: Guide for Managers, London: CMI. CIPD (2008b) ‘Religious discrimination and an introduction to the law’, at http://www.cipd.co.uk/ subjects/dvsequl/relgdisc/relgdisc.htm [accessed October 2008]. CIPD (2009) ‘Employers’ experiences in addressing sexual orientation, religion and belief at work’, at http://www.cipd.co.uk/subjects/dvsequl/sexdisc/_sorb.htm Denvir, A., Broughton, A., Gifford, J. and Hill, D. (2007) The Experiences of Sexual Orientation and Religion or Belief Discrimination Employment Tribunals, London: Institute for Employment Studies and DTI. Dickens, S., Mitchell, M. and Creegan, C. (2009) ‘Management handling of sexual orientation, religion and belief in the workplace’, at http://www.acas.org.uk/CHttpHandler.ashx?id=1050&p=0 Fitzpatrick, B. (2007) Sexual Orientation and Religion or Belief Cases, London: Trades Union Congress. Hunt, R. and Valentine, G. (2008) Love Thy Neighbour: What People of Faith Really Think About Homosexuality, London: Stonewall. Mitchell, M., Creegan, C., Howarth, C. and Kotecha, M. (2009) Sexual Orientation Research Review 2008, London: National Centre for Social Researc (NatCen) and the Equality and Human Rights Commission.

M a n a g e m e n t H a n d l i n g o f R e l i g i o n a n d B e l i e f i n t h e W o r k p l a c e 169 Savage, B. (2007) Sexual Orientation and Religion or Belief Discrimination in the Workplace, London: Acas Research and Evaluation Section and DTI. St Ethelburghs (2008) Recovering the Calm: Best Practice Guide to Prayer Rooms and Quiet Space at Work, London: Centre for Reconciliation and Peace.

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Disability

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chapter

13 Understanding Workplace Adjustments for Disabled Employees: The Law and Good Practice DEBORAH FOSTER

Introduction Chronic illness and disability affects 17 per cent of Europe’s general population and about 15 per cent of the working age population. Disabled people also have twice the rate of non-participation in the European labour market as non-disabled people (European Foundation 2003). In the UK, one in five adults have a disability and only 31 per cent of disabled people, compared to 80 per cent of non-disabled people, are economically active (Roulstone and Warren 2006). Disabled women, moreover, find it more difficult to secure employment and earn less than disabled men and non-disabled women (Emmett and Alant 2006), which suggests they experience multiple discrimination. Of those disabled people able to secure employment there is evidence that they are more likely than nondisabled people to be employed in low status jobs, be underemployed and unable to achieve promotion (Russell 2002). Yet despite these obvious disadvantages, most disabled people would like to work and this ambition does not decline with age (Evans and Repper 2000). A study by the Institute of Public Policy Research (IPPR) in 2003 reported that a significant proportion of disabled people become disabled whilst already in employment (IPPR 2003: 1). This suggests that workplace disability policy and practice, particularly where it affects skill retention should, therefore, be of interest to HR professionals, managers and trade unions. Recent research, however, suggests this is not always the case (Foster 2007). Organisations often have a poor understanding of disability law and their responsibilities to disabled employees, which in turn can result in unnecessary stress, high incidences of workplace bullying and ultimately the loss of valuable human resources (Foster 2007; Fevre et al. 2008). This chapter explores a key provision in UK disability employment law, that of ‘workplace adjustments’. The chapter begins by examining the introduction of disability employment legislation in the UK, the principles on which it was founded and the significance of subsequent amendments. It then goes on to consider the legal obligations

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of employers to disabled employees, experiences of the law from the employee perspective and the implications for trade union workplace representation in this area. At the end of each section, which looks at the organisational role of these three different workplace actors, a summary of key points is provided to clarify core rights and responsibilities associated with workplace adjustments.

The Legislative Context: UK Disability Employment Law The UK Disability Discrimination Act (DDA) was introduced in 1995 (although its employment provisions did not come into force until 1996) and was the first piece of UK legislation to provide disabled people with the right to challenge discrimination in the labour market and employment. Section six of the employment provisions of the DDA placed a duty on employers to make ‘reasonable adjustments’ to their physical workplace environment and their employment arrangements, so that disabled employees are not put at a ‘substantial disadvantage’. Adjustments to the physical workplace environment are generally understood to be measures that improve accessibility for people with mobility-related or sensory impairments. Adjustments to employment arrangements are sometimes also termed adjustments to ‘the work itself’. These can include, for example, alterations to hours of work, place of work, allocation of duties, or redeployment. The definition of ‘disability’ used in the UK DDA has been controversial and differs from that used in the employment law of other countries, for example, the United States. Here, the law acknowledges that disabled people may experience disadvantages arising from social stereotypes and prejudice, whereas in the UK the legal definition of disability is restricted to medical criteria. The definition of a disability, under the terms of the UK DDA, referred to a person’s physical or mental impairment that might ‘have a long term effect on his (sic) ability to carry out normal day to day activities’ (DDA 1995, Section 1 (1)). The phrases ‘substantial’, ‘long term’ and ‘normal’ have proved legally contentious and some have argued (Goss et al. 2000) that the DDA subjects employees to an ‘impairment eligibility test’ before discrimination is recognised. Originally, the requirement that a medical condition be ‘long term’ specified a period of 12 months or more as the legal benchmark. However, subsequent amendments to the DDA, which have been incorporated into the recent Equality Act 2010, revised this definition of disability to include medical conditions that are both ‘likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected’ (schedule 1, part 1 Equality Act 2010). Importantly, this means that a medical condition judged ‘likely’ to have a substantial impact on a person’s health from the point of diagnosis, for example, HIV or cancer, falls under the protection of anti-discrimination legislation immediately. Persons with a history of disability, even if an impairment no longer has a substantial adverse effect on their day-to-day living, continue to be protected by the definition contained in the Equality Act 2010, if a medical condition is likely to recur, thus also providing protection to employees with progressive, recurrent or unstable impairments (Lockwood 1999). Misunderstandings about who qualifies as ‘disabled’ under the definition used in UK law have been common since its introduction amongst employers, unions and employees (Foster 2007). For example, it is often assumed that disabilities are visible and apparent, yet many disabilities are non-visible, for example, ME, or mental health conditions (see Tambourides, Chapter 14 ) and, interestingly, only five per cent of disabled

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people fall into the category of ‘wheelchair users’ (Duckworth et al,1998), even though this is the most commonly used symbol to denote a disability. The DDA 1995 was amended in 2004 by the DDA 1995 (Amendment) Regulations 2003, to comply with changes brought about by the introduction of the European Union (EU) ‘Employment Equality Directive’ 2000. EU amendments ended certain opt-outs in the original UK 1995 legislation that had been a bone of contention with disability rights organisations (Disability Rights Commission (DRC), 2005). In particular, it ended the exemption that had been enjoyed by small employers and by certain categories of occupation. The definition of disability discrimination in UK law, moreover, changed. Discrimination had been defined as ‘less favourable treatment for a reason relating to disability without justification’ and ‘failure to make reasonable adjustments’ (DRC 2005). However, where in the past an employer could justify a failure to make reasonable adjustments on ‘material and substantial grounds’, a workplace adjustment would be judged as either ‘reasonable’, or not, and the burden of proof changed in law from the employee to the employer. EU provisions also meant disability harassment as a concept entered UK law (Foster 2007). However, whilst providing disabled workers in the European labour market with important new rights, EU law – like UK law – also utilised a medical model of disability, which as Bell (2008) notes creates a problem because different countries have used significantly different medical criteria to define what actually constitutes a ‘disability’. Therefore, entitlements to workplace adjustments vary across different EU member states, undermining the concept of ‘free movement of labour’ central to the Treaty of Rome (Foster and Williams 2010). In addition to the DDA, since 2006 there has also been a statutory duty on public sector organisations to promote disability equality in the workplace. The Disability Equality Duty (DED) was modelled on the Race Relations (Amendment) Act 2000 (Incomes Data Services 2005). It, moreover, reinforced the asymmetrical character of the DDA, which allows for ‘different’ and in some circumstances ‘more favourable treatment’ of disabled people to tackle discrimination (Foster 2007). Such an approach acknowledges the role of historic disadvantage in sustaining workplace inequalities and the need for positive action to address this (Dickens 2007: 474). The idea that some groups may have suffered from past and ongoing discrimination and that positive provisions are needed to compensate for the social disadvantages they may have experienced, is allied to the concept of ‘substantive equality’. This incorporates a belief that ‘difference’ plays an important role and that equality can only be created if people are treated according to their needs (Bacik 1997). ‘Positive action’ can, nonetheless, be problematic. Unlike equal treatment, it can sometimes go against people’s instinctive feelings about what constitutes ‘equality’ and ‘fairness’, something that is explored further below in relation to problems surrounding the legal obligation to provide workplace adjustments. The DED has subsequently been incorporated into the single Public Sector Equality Duty, a provision of the Equality Act 2010.

Disability Employment Law and Employers Since the implementation of the DDA’s employment provisions, surveys of employers have suggested that they misunderstand and are uncertain about their legal obligations to disabled employees (TUC, 2003; Woodhams and Danieli 2000; Stacey and Short 2000).

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Research that has specifically focused on how workplace adjustments are established (James et al. 2003; Meager et al. 1999; Foster 2007) has, moreover, identified the concept of ‘different’ as opposed to ‘equal’ treatment contained in the legislation as a key source of this employer confusion (Foster 2007). Unlike previous equalities law on race and gender, disability employment law allows employers to positively discriminate. The concept of ‘difference’ facilitates this in two ways. First, an employer can treat a disabled employee differently from a non-disabled member of staff by making alterations to, for example, their standard job description or working hours, so that they are not put at a substantial disadvantage. Second, because no person’s impairment is exactly the same, it is legitimate for an employer to treat disabled employees differently from each other. For example, adjustments organised for someone with a visual impairment, by definition, are not going to be appropriate for someone with depression. However, the severity and impact of a visual impairment might also differ between two employees who are both categorised as ‘visually impaired’. Thus adjustments may need to be different and tailored to specific individual circumstances even though the category of impairment is the same. This demonstrates why it is essential that employers and managers consult with employees and do not make assumptions about them based on partial knowledge about the impact of their impairment on their employment context. These examples also demonstrate the usefulness of professional occupational health assessments to employers seeking to make the most appropriate workplace adjustments for employees. It is the responsibility of employers to ensure that managers are adequately trained in disability law. A recent study that examined the negotiation of adjustments in the public sector workplace (Foster 2007) found that managers frequently ‘abdicated responsibility’ for adjustments to individual disabled employees. An important distinction, therefore, needs to be made between ‘consulting’ disabled employees and ‘abdicating responsibility’ for them (Foster 2007). Organisations need to take legal responsibility for the adjustment process and recognise that many employees will not have the knowledge, time, confidence or job security to negotiate and implement adjustments themselves. It is also essential that organisations develop transparent and accessible processes and procedures through which adjustments can be formally negotiated (Foster 2007). Legislation should have provided the impetus for employers to develop positive schemes that retain, reintegrate and rehabilitate disabled employees in the workplace. In an era of demographic change and acute skill shortages it was believed employers would recognise the value of existing staff who become disabled while already in employment (see EU Lisbon Employment Strategy, 2000–2010). Research suggests, however, that instead workplace adjustments for employees are dominated by a ‘deficit’ approach (Foster and Fosh 2010). This focuses primarily on what a disabled employee cannot do and the associated costs of workplace adjustments, rather than what they can do. The UK Government has provided support to employers in the form of the ‘Access to Work’ scheme, which will meet 100 per cent of the costs of equipment required by a disabled person in post for less than six weeks and will pay the full costs if over £10,000, or a proportion (80 per cent) of costs over £300, for those in post over six weeks. Research by Duckworth et al. in 1996, soon after the introduction of the DDA, also suggested that the average cost of workplace adjustments to employers was low, at just £200. However, many employers do not know about the existence of the scheme and recently there have been threats that it will be withdrawn from the public sector.

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Public sector employers must also be aware of their statutory obligations under the 2006 Disability Equality Duty (DED), now incorporated into the Equality Act 2010. This places a duty on employers to consult regularly with disabled people in the workplace and to actively promote equality of opportunity for this group of employees. The Duty also applies to disabled service users in the public sector. Through a publicly-available Disability Equality Scheme (DES) that is regularly reviewed and updated, employers must demonstrate that they have developed a strategy which has involved all relevant parties. Regular workplace consultation with disabled employees might be achieved through the employment of anonymous questionnaires. Staff networks of disabled employees, which meet with representatives from management and Human Resource (HR) personnel, are another common mechanism to facilitate consultation. It should, however, be remembered that because many disabled people are reluctant to self-identify for fear of discrimination, or have impairments that may mean they cannot always attend meetings, problems of representativeness may arise from over-reliance on such groups. Finally, the DDA introduced provisions for disabled job applicants who require adjustments to attend or undergo interviews, which specified that employers had a legal obligation to ensure that they were not disadvantaged in this process. There is little available research on how many employers have been asked to provide adjustments and, more importantly because of fears of discrimination, how many disabled people have requested adjustments at the recruitment and selection stage. It is interesting, however, that the Equality Act 2010 makes specific reference to ‘enquiries about disability and health’ (Part 5, ch. 1 60(1)) at the application stage of the employment process. Questions about the health of an applicant should, it notes, not be made ‘before offering work’ or at the stage where a decision is being made about selecting from a pool ‘whom to offer work’. However, it does appear that the act of asking about a person’s health of itself is not prohibited. It is, rather, how the potential employer or her/his representative treats this information which is significant (see ibid.: 60(3)). The 2010 Act thus recognises, for example, that an employer may need to ask questions that establish whether there is a duty to make reasonable adjustments, whether a disabled applicant would be able to carry out a function ‘intrinsic’ to the proposed job and for diversity monitoring purposes (see ibid.: 6a–e). In terms of other areas of the HR function disclosure of a disability is relevant to a number of other contexts, policies, practices and procedures in organisations, though this is sometimes overlooked. Such areas include performance appraisal and pay procedures and promotions processes. Employers should be aware that the concept of ‘reasonable adjustments’ applies to these and other areas. So what are employer responsibilities to disabled employees, including those with a long-term health condition, and what provisions should they make?

• If an employee has been diagnosed with a medical impairment and this has or is ‘likely’ to have a long-term (that is, 12 months or more) impact on their ‘day-today living’, they fall under the provisions of the Equality Act 2010, which places an obligation on an employer to make ‘reasonable’ adjustments at no cost to the employee. • A professional occupational health assessment will help employers identify the adjustments required by the employee and confirm employer obligations under law. • Workplace adjustments can be both physical and non-physical.

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• Physical adjustments might include alterations to premises, provision of additional

•

•

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• •

•

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equipment, for example computer software, orthopaedic chair, and so on, or the allocation of a parking space. Non-physical adjustments might include changes to work tasks (for example, allocating part of a person’s job to someone else); changes to hours of work; homeworking; permission to travel to and from work out of peak rush hours; redeployment or retraining. Such adjustments can change core terms and conditions of employment and are, therefore, often viewed as more controversial (Foster 2007). The Equality Act 2010 also highlights the obligations of organisations to comply with the law by ensuring that policies, practices and procedures do not disadvantage disabled employees. Impairments can be unpredictable and unstable, thus an employee who is able to perform a particular task on one day may be unable to perform the same task on another. It is essential, therefore, that organisations are flexible in their approach to adjustments, that they are regularly reviewed and employees are consulted. Employers must consider how they could retain or redeploy an employee who develops a disability while in work. It is no longer acceptable to pursue ill-health retirement as a first option. If an employer fails to make an adjustment for a disabled person because that person has not disclosed their disability, an employer cannot be held liable. It is essential that HR and managerial personnel receive appropriate training in disability law and that organisations have transparent and accessible procedures through which adjustments can be negotiated. Workplace adjustments as specified in the DDA (now superseded by the Equality Act 2010) apply to recruitment and other aspects of the HR function, for example, promotions and performance-related pay. The public sector duty places a duty on all publicly funded bodies to actively promote equality for disabled persons (employees and service users) and consult them about ways of doing this. Employers need to be aware that a poor understanding of the adjustment process can lead to the bullying and harassment of disabled employees (see Fevre et al. 2008) and put in place organisational procedures and practices to anticipate this possibility.

The Workplace Experiences of Disabled Employees There is limited data available on the way that the DDA impacted on the day-to-day lives of disabled employees, yet such insights are important to understand how workplace adjustments can be positively implemented. Research, particularly in the business and management literature, has tended to concentrate on how employers ‘manage’ disabled employees, rather than how employees ‘manage’ organisations (Foster 2007: 79). In-depth face-to-face interviews with a group of disabled employees published by Foster (2007) offers a rare insight into the realities of disabled employees and the problems they face in the workplace. It found that, as a consequence of poor employer knowledge of the DDA, many employees experienced bullying, stress and illness when attempting to negotiate workplace adjustments. Thus, a law intended to make the lives of disabled people in the workplace easier, has, in some instances had the opposite effect

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(Foster 2007). Research for the Equality and Human Rights Commission (EHRC) by Fevre et al. (2008) that examined workplace bullying and harassment also found that of all ‘minority’ groups they surveyed, disabled employees experienced more negative behaviour than any other. Foster (2007) found the actual act of requesting workplace adjustments, in itself, was enough to illicit inappropriate and discriminatory behaviour from line-managers. Despite the perception that HR departments are often regarded as ‘guardians’ of equal opportunities, research in the public sector has suggested that dedicated equal opportunities advisers and HR professionals offer inadequate support to disabled employees (Foster 2007). Some authors have argued that organisational policies alone are not a good indicator of good practice. An investigation of the effectiveness of organisational equal opportunities (EO) policies in the public and private sectors by Hoque and Noon (2004), for example, concluded that many equal opportunities policies were nothing more than ‘empty shells’. Comparing policies in the public and private sectors, however, they concluded that ‘EO policies in the public sector are less likely to constitute an “empty shell” than are policies in the private sector’ and in the public sector ‘the probability of having an “empty shell” policy falls … by 54 per cent for disability policies’ (ibid.: 495). Non-physical adjustments to elements of a job (for example, hours of work) are often regarded as more contentious by employers and managers, and are least understood (Foster,2007; Foster and Fosh 2010). However, even where physical adjustments are sought and acknowledged as essential, employees often report that they were slow to materialise and, by the time they have been implemented, they have experienced some disadvantage in the workplace (Foster 2007). This suggests that even in organisations where outcomes are satisfactory (that is, equipment is provided), the processes that organisations use to secure these outcomes are often inadequate (Foster 2007). The absence of clear organisational procedures through which workplace adjustments can be established is also a common complaint of disabled employees (Foster 2007; Foster and Fosh 2010). Evidence, moreover, suggests that inadequate procedures mean individual employees are left feeling that disability adjustments are their personal ‘problem’ rather than an organisational responsibility. This lack of procedural formality can often be reflected in the way that managers and trade union representatives regard the adjustment process. Despite the fact that workplace adjustments can result in significant changes to a person’s core terms and conditions of employment, there is little evidence that establishing them is subject to a formal bargaining process (Foster and Fosh 2010). Like managers, due to the complexity of disability law, workplace trade union representatives can sometimes fail to understand the provisions of the DDA. Some of the key problems that disabled employees experience when attempting to secure workplace adjustments are summarised below.

• The employee’s disability is (wrongly) interpreted as a personal ‘problem’ rather than a social or organizational responsibility rooted in a legal obligation.

• Line managers can misinterpret requests for adjustments as an attempt to secure ‘special favours’. This is because such requests can mean a disabled employee is treated ‘differently’. The law allows for this, it also acknowledges that in some instances this may constitute ‘positive discrimination’. • Non-physical adjustments (for example, reduction or changes in hours of work) are sometimes regarded as controversial and evidence suggests that employees who

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request these types of adjustments experience greater difficulties in securing them (Foster 2007). • Employees report that the lack of transparent, equitable and formal organisational procedures through which workplace adjustments can be negotiated is a source of stress and illness.

Disability, Workplace Adjustments and Trade Unions Trade unions have an important role to play in representing disabled employees in the workplace. On a day-to-day level workplace representation may be needed by employees to negotiate and secure workplace adjustments. In terms of developing policy and good practice, trade unions, moreover, have a broader function in ensuring that disability concerns do not become over-individualised and are integrated into broader equality and diversity agendas within organizations (Foster and Fosh 2010). As mentioned previously, the DDA is based on a medical model of disability, which can contribute to the perception that disability issues are somehow personal or private. The problem with this is that when concerns are viewed in this way their wider collective relevance to policy and practice tends to get lost. It has, therefore, been noted that the DDA has contributed to the depoliticisation of workplace disability issues (Foster,2007), though as some commentators have observed (Zola 2005) we are all potentially ‘at risk’ of ill-health or disability during our life-course, therefore disability should be viewed as a universal not a minority concern. The role of unions in collectivising and by implication politicising workplace disability issues is important. Nevertheless, research suggests (Foster 2007; Foster and Fosh 2010) that workplace union representatives, like managers, can be confused about concepts of ‘different’ as opposed to ‘equal’ treatment in relation to adjustments. Disabled employees often report feeling isolated and unable to engage trade unions in the adjustment process because they fail to recognise it as a formal bargaining situation, despite the obvious ramifications for alterations in terms and conditions of employment (Foster 2007; Foster and Fosh 2010). Workplace adjustments are a legal obligation and should be treated thus, nevertheless, many employees complain instead that securing these rights is a personal lottery, dependent upon the attitudes of line-managers and good-will of union officers (Foster 2007: 82). The workplace representation of disabled employees presents unions with a number of unique challenges. Most importantly, unions need to first identify ‘disabled employees’ as a specific constituency to represent in the workforce. This is more difficult than it first appears, because many people who are defined as disabled under the DDA may not know that they fall within this definition; may not wish to be defined by what some regard as a stigmatising label (Beckett 2006; Watson,2002); or may be fearful of disclosing their disability identity for fear of discrimination. Disabled people as a group are also very diverse. Impairments can mean experiences of disability vary enormously, though many disabled people do speak of experiencing a similar ‘social oppression’ from physical barriers, misconceptions and prejudices in society. In terms of organising disabled employees, unions are faced with the challenge that many disabled people in the labour market prefer to identify with non-disabled people so that they feel ‘assimilated’ or ‘integrated’ into the labour market (Schur 2003: 754;

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Shakespeare 2006). Research from the US, moreover, found that employed disabled people are less likely than disabled people not in employment to engage in political activities related to a disability issue (Schur 2003: 765). Factors such as time constraints, job insecurity and a weak identification with other disabled people were found to be reasons for this, though the same study did find that those disabled people in employment who had experienced some form of job discrimination within the previous five years were more likely to engage in political activity (Schur 2003: 765–766; Foster and Fosh 2010). Getting a range of disabled people in employment to participate in campaigns and activities may, therefore, require that unions build trust and create ‘safe spaces’ within their organisations so that disabled people in the workforce are willing to self-disclose. ‘Coming-out’ as disabled to an employer is important because ultimately this is the only way an employee will benefit from their legal right to workplace adjustments. Emphasis within the DDA on medical assessments as a means of establishing a right to workplace adjustments has shaped the character of workplace representation. For example Foster and Fosh (2006, 2010) have noted that the need for detailed information that is both person-specific (relating to a persons’ impairment) and task-specific (relating to the technical or organisational aspects of the employee’s job role) inevitably dominates the workplace adjustment process. Thus knowledge gained through the representation of one employee is not always readily transferable to another and it can be difficult to develop good collective practice out of such negotiations. Moreover, the type of representation needed to establish workplace adjustments can be different from that usually required by other ‘minority groups’. For many disabled people workplace adjustments are required so that they do not experience disadvantage, which suggests representation must be proactive rather than reactive, if discrimination is to be avoided (Foster and Fosh 2010). The TUC has long recognised that disabled employees experience unique challenges in the workplace. For example, in 2003 they published a report entitled The Experience of Disabled Trade Unionists in the Workplace. More recently, they have been key participants in the consultation process that predated the Equality Act 2010 and published a substantial report in 2009, Equality Bill: Assessing the Impact of Multiple Discrimination. However, both the TUC and trade union affiliates recognise that more could be done to meet the needs of disabled employees in the workplace, something that is acknowledged in a recent report on the role of union workplace equality representatives (TUC 2010). Some of the key issues that unions might address in the future to further develop the role of workplace representatives dealing with disabled employees are detailed below.

• Workplace union representatives need to receive effective training in complex disability employment law. The concept of ‘different treatment’ that underlies the right of disabled employees to workplace adjustments and how it applies to a variety of workplace situations (including promotions, appraisal, recruitment, retention, redeployment) must be properly understood. • Many unions now ensure that disabled members are represented within their structures by self-organised groups of disabled people. Employees need to know about these groups and their existence at workplace, regional and national levels and know that they will provide ‘safe-spaces’ for disabled employees to self-declare and selforganise. • Strategies that collectivise workplace disability concerns need to be developed alongside individual case work. The DDA was framed in a way that medicalised and

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personalised disability. Workplace adjustments also need to be tailored to individual circumstances. Collective lessons, however, can be drawn out of individual examples and it is important that unions develop proactive agendas around these. It is often the social organisation of work and social prejudices that dis-able, rather than individual impairments. • Procedures to establish workplace adjustments need to be transparent and accessible within organisations. By conceptualising the adjustment process as a formal bargaining situation, unions could end the ambiguity surrounding their status and end the situation whereby many employees experience the process as a ‘personal lottery’ (Foster 2007). • Unions need to ensure that workplace disability issues do not get marginalised in wider equality and diversity agendas in organisations (see Foster 2007). The tendency to view disability as an individual ‘problem’ contributes to the depoliticisation of disability concerns.

Conclusions Successfully negotiating workplace adjustments can mean the difference between securing or remaining in employment or being unemployed, socially excluded and poor for many disabled people. By exploring the implications of adjustments for three actors in the workplace – managers, employees and trade union representatives – this chapter has highlighted ongoing problems with disability employment law and workplace practices more than ten years after the DDA was first implemented in the UK. Persistent misunderstandings relating to key concepts in disability law and the medical definition of disability that underpins it are sources of many of these problems. Evidence suggests that disabled employees continue to experience disadvantage in the workplace because of poorly trained managers, HR professionals and in some instances, trade union representatives. Workplace disability issues, moreover, continue to be regarded as individual or personal ‘problems’ rather than collective concerns or organisational responsibilities (Foster 2007; Foster and Fosh 2010). The DDA was a significant piece of legislation and the Equality Act 2010, which has now replaced it, has given individual disabled employees the right to challenge workplace discrimination However, because the DDA medicalised and, therefore personalised, disability and this remains unchanged in the Equality Act, little has been done to challenge the enduring negative social stereotypes of disabled people that are often the cause of discriminatory behaviour. It was noted that employers often approach workplace adjustments from a ‘deficit’ perspective (Foster and Fosh 2010). Thus, instead of thinking of employees as valuable human resources with skills and knowledge that could benefit or be retained by an organisation, once an employee is categorised as ‘disabled’ they are often perceived as a ‘cost’ or ‘burden’ on the organisation. This narrow interpretation of what constitutes a ‘human resource’ is associated with a rigid and mechanistic view of organisations, where the ideal-type employee is full-time, has no personal life and is employed on a standardised job contract. Flexibility, whether to accommodate women who have childcare and caring commitments or disabled workers who have impairments is, from this perspective, viewed as organisationally disruptive. Part of the problem associated with the implementation of workplace adjustments, therefore, is related to the wider

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problem of inflexible organisations. It is social processes and social practices that sustain this inflexibility, thus a first step is for organisations to ‘own’ and ‘socialise’ workplace disability concerns rather than abdicate responsibility in this area. Only by looking at practices and social attitudes and beginning to understand how these create barriers and prejudice against disabled people will organisations begin to play a positive role. The focus must move away from individuals and their impairments to address social processes that dis-able employees.

Acknowledgements Some of the research contained in this chapter was undertaken for the purpose of a study funded by the Economic and Social Research Council (ESRC) (Award Reference Number: RES-000-22-0722). As well as thanking the ESRC for their support, the author would also like to acknowledge Dr Marion Hersh, who by contributing to numerous discussions and debates on disability and work, has undoubtedly also contributed to this chapter.

References Bacik, I. (1997) ‘Combating Discrimination: The Affirmative Action Approach’, in R. Byrne and W. Duncan (eds), Developments in Discrimination Law in Ireland and Europe, Dublin: Irish Centre for European Law, 119–130. Bell, M. (2008) ‘The Implementation of European Anti-discrimination Directives: Converging Towards a Common Model’, The Political Quarterly, 79(1): 36–44. Beckett, A.E. (2006) ‘Understanding Social Movements: Theorising the Disability Movement in Conditions of Late Modernity’, The Sociological Review, 54(4): 734–752. Dickens, L. (2007) ‘The Road is Long: Thirty Years of Equality Legislation in Britain’, British Journal of Industrial Relations, 45(3): 463–494. Disability Rights Commission (2005) ‘Important Changes to Part 2 DDA from October 2004’ http:// www.drc-gb.org/publicationsandreports [accessed 3 August 2005]. Duckworth, S., McGreer, P., Kearns, D. and Thornton, P. (1998) ‘International Research Project on Job Retention and Return to Work Strategies for Disabled Workers’, Geneva: International Labour Organisation. European Foundation for the Improvement of Living and Working Conditions (2003) Illness, Disability and Social Inclusion: Summary, 1–8. http://www.eurofound.ie/living/illness_disability. Emmett, T. and Alant, E. (2006) ‘Women and Disability: Exploring the Interface of Multiple Disadvantage’, Development Southern Africa, 23(4): 445–460. Evans, J. and Repper, J. (2000) ‘Employment, Social Inclusion and Mental Health’, Psychiatric and Mental Health Nursing, 7, 15–24. Fevre, R., Robinson, A., Jones, T. and Lewis, D. (2008) Work Fit for All – Disability, Health and the Experience of Negative Treatment in the British Workplace, Equality and Human Rights Commission, Insight report 1, Autumn. Foster, D. (2007) ‘Legal Obligation or Personal Lottery? Employee Experiences of Disability and the Negotiation of Adjustments in the Public Sector Workplace’, Work, Employment and Society, 21(1): 67–84.

184 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k —— and Fosh, P. (2006) ‘Representing Disabled Employees in the Workplace: The Need for a MultiDimensional Approach’. Paper presented at the British Universities Industrial Relations Association Conference, National University of Ireland, Galway, July. —— (2010 forthcoming) ‘Negotiating “Difference”: Representing Disabled Employees in the British Workplace’. British Journal of Industrial Relations, 48(3): 560–582. Foster, D. and Williams, L. (2010) ‘The Past, Present and Future of Equality Agendas: Problems of Intersectionality in Theory and Practice’, in Blyton, P., Heery, E. and Turnbull, P. Reassessing the Employment Relationship, Basingstoke: Palgrave Macmillan. Goss, D., Goss, F. and Adam-Smith, D. (2000) ‘Disability and Employment: A Comparative Critique of UK Legislation’, International Journal of Human Resource Management, 11(4): 807–821. Gooding, C. (2000) ‘Disability Discrimination Act: from Statute to Practice’, Critical Social Policy, 20(4): 533–549. Hoque, K. and Noon, M. (2004) ‘Equal Opportunities Policy and Practice in Britain: Evaluating the “Empty Shell” Hypothesis’, Work, Employment and Society, 18(3): 481–506. Incomes Data Services (2005) ‘Disability Discrimination Goes Public’, IDS Brief, 774, February. IPPR (2003) ‘1 in 5 Adults has a Disability – Government Must Do More to get Disabled People Jobs’ press release, http://www.ippr.org.uk/pressreleases.?id+717, 12 June. James, P., Cunningham, I. and Dibben, P. (2003) Job Retention and Vocational Rehabilitation: the Development and Evaluation of a Conceptual Framework. Research Report 106. London: Health and Safety Executive. Lockwood, G. (1999) ‘The Disability Discrimination Act 1995: Credible legislation? The Main Implications for Employers’, Journal of Applied Management Studies, 8(1): 113–118. Meager, N., Doyle, B., Evans, C., Kersley, B., Williams, S., O’Regan, S. and Tackey, N.D. (1999) Monitoring the Disability Discrimination Act. DfEE Research Report No 11, Brighton: Institute for Employment Studies. Roulstone, A. and Warren, J. (2006) ‘Applying a Barriers Approach to Monitoring Disabled People’s Employment Implications for the Disability Discrimination Act 2005, Disability and Society, 21(2): 115–131. Russell, M. (2002) ‘What Disability Civil Rights Cannot Do: Employment and Political Economy, Disability and Society, 17(2): 117–135. Schur, L. (2003) ‘Employment and the Creation of an Active Citizenry’, British Journal of Industrial Relations, 41(4): 751–771. Shakespeare, T. (2006) Disability Rights and Wrongs, London: Routledge. Stacey, M. and Short, A. (2000) Challenging Disability Discrimination at Work, London: Institute of Employment Rights. Trades Union Congress (2003), ‘The Experience of Disabled Trade Unionists in the Workplace’, www.tuc.org.uk/equality/tuc-6754-f0.cfm. Trades Union Congress (2009) ‘Equality Bill: Assessing the Impact of Multiple Discrimination’. TUC consultation response. Trades Union Congress (2010) ‘TUC Equality Reps Project Extension Report’ (April 2009–December 2009). Watson, N. (2002) ‘Well, I know this is going to sound very strange to you, but I don’t see myself as a disabled person: identity and disability’, Disability and Society, 17(5): 509–527. Woodhams, C. and Danieli, A. (2000) ‘Disability and Diversity – A Difference too Far?’ Personnel Review, 29(3): 402–416. Zola, I.K. (2005) ‘Towards the Necessary Universalizing of a Disability Policy’, The Milbank Quarterly, 83(4): 1–27.

chapter

14 Mental Health and

Discrimination: A Short Guide to Being Unreasonable ALEX TaMBOURIDES

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man. George Bernard Shaw (1903), Man and Superman.

Introduction One in four people will have a mental health problem at some point in their lives, I am one of them. I also work for Hammersmith and Fulham Mind, a local group of the organisation that represents people with mental health problems. This chapter is therefore written both from a personal and professional perspective. As of March 2010 the number of people in employment was 28.83 million (Office for National Statistics) and it is estimated that one in six of these will be suffering from depression, anxiety or other stress-related problems (Sainsbury Centre for Mental Health 2009). This means that approximately 4.8 million people are affected by stress-related symptoms in the workplace. It has also been estimated that the total cost to business of mental health problems is £26 billion across the UK economy (Sainsbury Centre for Mental Health 2007). Such statistics quantify not only the impact on business but are also a measure of unhappiness. Is it really acceptable to have such high levels of misery in the workplace? Are we doing enough? In this chapter I argue that understanding discrimination around mental health in the workplace is both a business and an ethical imperative.

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The DDA and Mental Health – A Brief History The Disability Discrimination Act 1995 (DDA) came into force in December 1996 (see Foster, Chapter 13). An update of the Act in December 2005 meant that the DDA also applies to mental health conditions that may not be clinically recognised, but in order to qualify under the DDA the person must be able to demonstrate that the disability has or will affect them for a minimum of 12 months. (This also applies to a history of disability.) The DDA is there to protect people from being discriminated against and to ensure that employers make ‘reasonable adjustments’ for disabled employees, but a person is covered by the DDA only once the employer knows of the condition (see ‘Further Information’ for details on Mind). In what follows I will show how the DDA has and has not affected the workplace and what employers and work colleagues can do to make working life better for people with mental health issues. I will also show how we can combat discrimination and increase understanding of mental health issues by using the DDA and other non-legislative methods. In order to combat discrimination we must first understand it. Once we begin to understand mental health, how it relates to work, how it relates to the DDA, then we can begin to take action. The following is an attempt to provide a guide to how we might start to achieve these goals.

A Time to Change: A Little Bit of Wood Before the Trees When addressing mental health and discrimination, there is no need to act in isolation. Mind is the country’s leading mental health charity and has been campaigning for people in mental distress for over 60 years. Currently the country is in the middle of one of the biggest mental health anti-stigma campaigns ever. Time to Change is a coalition of Mind, Rethink, and the Institute of Psychiatry and is aiming to reduce discrimination by five per cent by 2012 and to create a five per cent positive shift in attitudes towards mental health problems. The campaign has tapped into the power of commercial television and it cannot be underestimated how significant it is that millions of people were exposed to advertisements about mental health on peak-time TV. It is also a huge step forward to see positive messages about mental health on London Underground by celebrities such as Stephen Fry, as millions tunnel their way to work. Further huge steps forward in mental health are also currently happening, many of them aimed at improving the labour market participation of people with mental health problems. Improving Access to Psychological Therapies (IAPT), the brainchild of Lord Layard and the result of tireless campaigning, is a huge expansion of therapy across the country. This amounts to an overall spend of £173 million (between 2008 and 2011), providing access to talking therapies for up to 900,000 people. An explicit aim of the IAPT programme is that it will enable people to gain or maintain employment. In addition to IAPT, Dame Carol Black was tasked with leading the Government-led initiative, ‘Health, Work and Well-being’, to protect and improve the health and wellbeing of working age people. In April 2010 the ‘Fit note’ was launched and there are currently well-being and work pilots being run across the country under this initiative. The Government’s long-awaited mental health and employment strategy, ‘Working our way to better mental health’, has been released and we have seen the publication of the

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Perkins Review – ‘Realising Ambitions’. There has never been a clearer direction for mental health and employment, and we are already starting to see some of the changes that have been recommended including mental health coordinators placed in Job Centres. After campaigning from organisations such as Mind and Rethink, the new Equality Act 2010 is a big step forward and includes welcome changes relating to discrimination and employment. It has removed the employer’s right to ask health screening questions on pre-employment questionnaires. Although we are in a period of uncertainty relating to the new government’s position on health and business, the future for mental health and employment still seems stronger than ever before.

The Law has Changed but has the Workplace? Changes in the Disability Discrimination Act 1995 and its 2005 update have meant that people with mental health problems have more rights at work than ever before. The legal framework can be used to bring about positive change for people with mental health problems at work. However, the reality of work for people with mental health problems has not significantly improved. Mental health problems considerably increase the risk of leaving employment compared to other health problems (Burchardt 2003). Over the past 10 years, the proportion of all claimants of incapacity benefits who are claiming because of mental health problems has risen from 26% to 40% and it has overtaken musculoskeletal disorders as the commonest cause. This has happened because whilst the total number of new claimants has fallen, the number with mental health problems has stayed the same. The reasons for this are unclear. (Royal College of Psychiatrists, 2008: 18)

While the reasons for the current situation seem to be ‘unclear’ according to the Royal College, I believe they are quite simple.

Mental Health at Work – The Elephant in the Room Recent data on attitudes to mental illness shows that people tend to underestimate the proportion of those who experience mental health problems: The actual lifetime incidence of mental health problems is estimated to be around 1 in 4. […] A quarter of respondents (24%) thought the proportion was 1 in 10, with 41% of respondents thinking it was less than this. (Office for National Statistics 2009: 42)

According to the Shaw Trust: Around three in every ten employees will experience stress, depression or some other form of mental health in any one year. Around one in four people will experience mental ill-health at some point in their lives. Yet only around 17 per cent of employers recognise this national average is likely to apply to their people. (Shaw Trust 2006)

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The costs to employers, according to the Sainsbury Centre for Mental Health, are staggering:

• £8.4 billion a year in sickness absence. The average employee takes seven days off sick each year of which 40 per cent are for mental health problems. This adds up to 70 million lost working days a year, including one in seven directly caused by a person’s work or working conditions. • £15.1 billion a year in reduced productivity at work. ‘Presenteeism’ accounts for 1.5 times as much working time lost as absenteeism and costs more to employers because it is more common among higher-paid staff. • £2.4 billion a year in replacing staff who leave their jobs because of mental ill health. (Sainsbury Centre for Mental Health 2007: 1). Our knowledge of the scale and cost of the issues around mental health at work has never been better. The legal framework has never been stronger, yet the situation remains the same. I believe this is because in practice attitudes, behaviours and skills at work have not changed. The law does not allow discrimination, people do. However, the recent change to ban pre-employment health questionnaires, mentioned above, marks a strong legal step in the right direction.

Changing your Mind: A New Definition of Mental Health We can’t solve problems by using the same kind of thinking we used when we created them. (Albert Einstein, attrib.)

Whether you are an employee, manager, business leader or someone who is thinking of applying for work your attitude towards your own or others’ mental health is pivotal. Much of the reason for stigma and discrimination around mental health, whether in or outside the workplace, is to do with how it is understood and perceived. In order to empower employers and individuals to break through the barriers we must unite them through a common understanding of mental health. This is how the World Health Organisation (WHO) defines mental health: Mental health is more than the absence of mental disorders. Mental health can be conceptualized as a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community. (WHO 2007)

This way of viewing mental health has the following key points that are important for anyone in any workplace to consider:

• We all have mental health; • we all aspire to maintain good mental health; • mental health can be seen as a continuum that fluctuates;

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• mental health relates hugely to environmental effects and changes in peoples’ lives; and

• good mental health is more than the absence of a ‘disorder’. The WHO definition describes an aspiratory state that binds people together. Once we have a clear idea of what good mental health is it becomes easier to see mental health problems as part of the human condition. In a way the challenge is simple. The WHO definition of good mental health is how most people would instinctively view their physical health. The ideological shift that will lead to the biggest change in discrimination is to view physical and mental health in the same way. Modern life is peppered with phrases like ‘I’m a bit out of shape at the moment, I’ll have to get down to the gym’ or the traditional Christmas guilt ‘I was terrible this year, I’m not going to drink for a month, and I’m giving up red meat.’ Clearly most people aspire to good physical health as a form of self-improvement – and preservation. Mental health can, and should, be thought of in the same way.

Bringing People Together: The Continuum of Mental Health The spectrum, or continuum, of mental health is a key conceptual step in breaking down discrimination. We all make evaluations on our state of well being. These judgements do not tend to be binary, that is, today I am perfectly healthy, yesterday I was perfectly unhealthy. Health is instinctively perceived as being incremental with some points on the spectrum of health requiring interventions from medical professionals. The continuum of mental health applies the idea of gradual shifts in health to mental health. With this in mind I define a mental health problem as: A more than temporary state of mind that has an adverse affect on our ability to function on a day-to-day basis.

The point at which mental health has deteriorated to the stage where day-to-day function is impaired is where, certainly in relation to the DDA, mental health problems will become an issue at work and where employers will need to consider reasonable adjustments (see Foster, Chapter 13). To summarise: everybody has mental health, sometimes some of us have mental health problems. The cost to individuals with mental health problems is huge and at this moment there are literally millions of people experiencing mental distress. Ending mental health discrimination is both an ethical and business imperative.

Stigma, Non-disclosure and the DDA Although the stigma of mental illness affects many aspects of the person’s life it has the greatest impact on work (Roeloffs et al. 2003; Gaebel et al. 2005, cited in Royal College of Psychiatrists 2008). Stigma and discrimination in relation to mental health is not just a political issue, it damages health and it damages business. The DDA can act as a lever of change but, as I

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have argued, change is moving slowly in the workplace. There are four main reasons for this: 1. 2. 3. 4.

Stigma; lack of mental health knowledge; lack of legal knowledge; and lack of skills and policy framework.

Stigma has very obvious interactions with feelings of shame. According to some sociologists shame is the social emotion (Scheff 1988) where the ‘socially evaluative threat’ plays a huge part in raising stress levels (Dickerson and Kemeny 2004). The scientists may have evidenced it, but anyone who has experienced a mental health problem knows this to be true. As someone who has experienced depression, the added impact of being perceived as weak or strange simply makes matters worse. It is obvious that the effects of stigma on a person will have adverse affects on how they feel, but stigma and discrimination affect work and health. Consideration of stigma and discrimination around mental health at work must be given both pre- and in employment.

Pre-Employment Research has shown that people with mental health problems are less likely to apply for work through fear of discrimination, and also that employers are less likely to employ them. Many human resources managers believe that those who have experienced psychiatric illness will be worse at their jobs and as a result they are more likely to request ‘further information’ if an appointee reveals such a history. (Glozier 1998) About half of employers would not wish to employ a person with a psychiatric diagnosis. (Manning and White 1995)

and two-thirds of employers in the private sector and in small and medium-sized companies report that they have never knowingly done so. (Chartered Institute of Personnel and Development (CIPD) 2007, all cited in Royal College of Psychiatrists 2008: 7)

Many people with mental health issues have a negative view of the workplace, some from previous experience, fearing that they be faced with discrimination. This, combined with feelings of low self esteem and a lack of encouragement and support, can leave many people feeling that work is simply not safe or possible as an option for them. As a person that has worked with Hammersmith and Fulham Mind said recently: ‘Work made me ill in the first place, they didn’t really take the time to understand and frankly didn’t give a **** about me! Why on earth would I risk applying for anything?’

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In addition to this, many people with mental health problems, fearing discrimination, do not disclose at their interviews or afterwards (MacDonald-Wilson 2005).This means they are not covered by the DDA and do not get the chance to get adjustments made. They conceal their disability, as I once did, for fear of being discriminated against. Fear of and actual discrimination prevents many from applying for work or disclosing at interview or once in work. By not taking steps to promote a welcoming image and culture towards mental health, employers are tacitly colluding with discrimination. If we know that some employers do discriminate against people with mental health issues, if we know that people with mental health issues are put off from applying by this expectation, and if we know that people are also afraid to disclose because of stigma, the question is what can we do about it?

In Employment The effects of stigma around mental health once a person is in work are just as great. It is commonly acknowledged that stigma prevents people with mental health problems disclosing in the workplace (MacDonald-Wilson 2005). This has implications for the employer and the employee. The employer does not know that the employee has a problem, in some cases until it is too late, which means that, even if the employer has good support mechanisms, they cannot assist the employee. This can be a particular problem for line managers, who may not be able to recognise mental health issues amongst their staff, but still have to manage the effects of both absenteeism and presenteeism. If managers do not know the size of the problem any impetus to resolve it is lost. In a workplace survey conducted recently: Managers believed that less than 4% of their staff had a mental health problem at any point in the last year, when their staff were confidentially interviewed over 25% disclosed a serious mental health problem. (Hammersmith and Fulham Mind, unpublished)

Non-disclosure also prevents early intervention from taking place and ‘reasonable adjustments’ being made. It is widely acknowledged that early intervention can dramatically reduce the effect on the person’s health. However, if through fear of discrimination, the person does not disclose their mental health problem they cannot get support. Without support there is a likelihood their health may deteriorate, they may underperform, and may eventually need to take time off work. Disclosure is therefore vital when it comes to mental health in the workplace, but what should a manager do when somebody has disclosed? The following offers some guidance on what steps employers and managers need to take to safeguard their employees and their business.

Legal Rights, Business Solutions The DDA covers mental health problems just like any other disability. A mental health need, like a physical problem, can affect the way a person interacts with the workplace.

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The DDA prevents employers from discriminating against people that have a disability both pre- and post employment, covering recruitment and working conditions.

Reasonable Adjustments The most important part of the DDA for employers and employees relates to reasonable adjustments. Once a person has disclosed to their employer they are covered by the DDA, this means that the employer has a responsibility to make adjustments to the person’s work or environment that are reasonable, in order to prevent the person’s disability from excluding them from work. There are two important principles behind reasonable adjustments, the social model of disability and the ‘business case’, which address both business and ethical interests. The social model argues that the ‘problem’ of disability does not lie with the person who has the disability, but rather it is the social and physical environment that prioritises the non-disabled that is disabling. For example, if a person with mobility issues cannot gain access to a building, the argument is that the environment is the barrier, that is, the lack of access facilities such as a ramp or a lift disables the person. Some of the DDA embodies the social model.1 It sets out a legal imperative that means service providers and employers should, where possible, not discriminate or disable people by the services, roles or environments they provide. Furthermore employers need to adapt the working environment, via reasonable adjustments, so as not to disadvantage workers covered by the DDA. In relation to the business case, the issue is not how much will it cost to make a reasonable adjustment, but how much will it cost NOT to make reasonable adjustments. The business case behind reasonable adjustments has many different angles. If the way your service is provided excludes people with certain disabilities, quite simply you are losing custom. If the way you recruit people excludes those with disabilities, you are losing out on a potentially highly motivated and skilled workforce. You are also losing out on the opportunity to build a workforce that reflects your customer base. If you are unable to adjust your environment or work to remove barriers for one of your employees the result is simple. They may underperform, be unable to work, go on sick leave, or leave. Clearly there are business costs here. The rule is simple. If you can reasonably make adjustments you will save money, reduce the impact on productivity and become more resilient.

The Art of Being Reasonable – Working with Individuals who have Disclosed Reasonable adjustments can be thought of as either reactive or proactive. A reactive reasonable adjustment is made when a company or the individual reacts to a specific change in circumstance or information around a specific person, for example, a disclosure in the workplace or information on an application form. A proactive reasonable 1 It might be said (see Foster, Chapter 13) that the DDA applies the medical model of disability because people have to meet Western diagnostic criteria to be covered. However the 2005 update changed that for mental health, specifically removing the need for it to be clinically recognised. Even if elements of the DDA mean that the diagnosis is made on a medical model, reasonable adjustments, which are positive actions taken in line with the DDA, are specifically social as they allow the ‘impairment’ not to be a disability by adjusting the environment.

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adjustment is made when a strategic decision has been made to alter the workplace in order to minimise the adverse impact of health conditions in employees or to promote better health and well-being amongst staff at work more generally.

Reactive Reasonable Adjustments: Case Study The following case study, based on an actual case, focuses on making reactive reasonable adjustments in practice:

Jayne has been off sick with ‘stress-related symptoms’, as indicated by her doctor’s note. In line with best practice and because he had a good relationship with Jayne, Jayne’s manager met with her during office hours at a café. They discussed her situation and Jayne disclosed that she has suffered from depression ‘on and off’ for most of her adult life. Important points to note here are: •

•

Jayne is now covered by the DDA as she has disclosed her disability. Had she pretended, for example, that she had a stomach bug and came back to work early on a self-certified sick note the employer would not have been able to help. Jayne had a trusting and open relationship with her line manager. In this instance it was this that enabled her to disclose her disability.

Jayne’s line manager asked what, if anything, the company could do to support her, how her symptoms impact on work and whether there are any triggers that he needs to know about. From this conversation it was established that Jayne felt that her workload was too high and that she was having difficulty meeting the demands of the job as her depression made it difficult to concentrate. Furthermore her inability to cope with her workload caused her to feel even worse, and this adversely affected her depression. Whilst the break from work had given her some breathing space, she still felt that she was not able to perform and was worried that the pressure could make things worse. Jayne’s manager has three imperatives for making a reasonable adjustment: 1. 2.

3.

The Disability Discrimination Act: The line manager has a duty to make adjustments to her workload so that it does not damage her health or exclude her from working. Business imperative: If the same workload is maintained and it is too much for Jayne she may be totally unable to work and require full sick leave. This leaves one staff member short and an increased burden on existing team members. Ethical/personal imperative: The manager may consider how he would like to be treated in these circumstances, or even how he would react if this person were a friend or a relative that he cared about. Would he be flexible? By being flexible, he may also gain a sense of loyalty and trust in return.

194 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k A series of reasonable adjustments were made for Jayne. She agreed with her manager that she would not go straight back to full-time work and between them they worked out a gradual return to full duties with review points. For the first two weeks Jayne worked from home for a day and came into the office for two days, and Jayne and her manager reviewed the situation closely. Her time in the office was gradually increased and within six weeks Jayne was back to full duties.

We Plan for Business, Can We Plan for Mental Health and Reasonable Adjustments? (Why Parachutes are Important) Many people with mental health issues feel that they may have recurring episodes. Mental health, like physical health, can fluctuate. What is needed is the means to intervene or make adjustments as early and as effectively as possible to minimise the impact on the employee’s health and the business. Simple and effective means of doing this have evolved from community mental health teams and are now being taken up by business. One such tool, developed at Hammersmith and Fulham Mind, helps to manage disclosed mental health conditions. It is called the Parachute and is, in effect, a reasonable adjustment for the future. Adopting a tool like the Parachute is a proactive reasonable adjustment and means that everyone is better prepared and empowered to manage mental health. The Parachute is a form that can fit onto one side of A4 paper with a series of simple questions that can be answered by the employee individually or, better still, in conversation with the line manager. I here use anonymised but real examples from the workplace to show how the Parachute can work.

The Parachute: A Tool for Discussing Mental Health Conditions Q1. Can you describe, in your own words, what your mental health condition is? How does it affect you? Here you are looking to establish a common understanding of the person’s mental health issue. Line managers don’t have to be clinicians, and often the person with the mental health issue is the expert. This question allows a conversation that gives the manager an understanding of how the mental health condition affects the person, and how it affects their work. This is important because people are affected by conditions in different ways. An example might be: ‘I’ve been diagnosed with Bi-Polar disorder, I haven’t had a serious episode for a while, but I do get down sometimes. I very rarely get high but when I do it doesn’t tend to last very long, it’s mainly the down periods that affect me ...’

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Q2. How would I notice if your health was deteriorating? Mental health specialists, clinicians and people with their own experience of mental distress may recognise the early indicators of a decline in health in others. However, different people are affected by these in different ways. By finding out what the early signs are it is possible for the employee and the employer to work together to minimise the impact of an episode or prevent its occurrence. An example response here could be: ‘If you hear me mention not sleeping very much or I seem a bit more “up beat” than usual, it could be a sign of an “upswing”. I might be a bit more over-confident also – maybe a combination of tired but elated ...’

Q3. What should we do about it? This is the final and most important part of the Parachute. The question allows us to take the best next steps but also share responsibility if possible. When thinking about these steps, we really need to think about how the person’s condition interacts with the workplace, what support mechanisms are available in and outside the workplace, and what steps would both the employer and employee feel comfortable taking. The response could be something as simple as: ‘...in the first instance just mention it [my change in behaviour] to me, it might just be a one off and a mention might be the right thing. Last time I felt something was changing I went to see my GP who gave me some medication to help me sleep – it seemed to work fine.’ In an open way we also need to be prepared for what happens when that isn’t enough, the next set of potential steps could be: ‘If you’re still worried about me then, I am happy for you to get in touch with my brother, who knows me well and he’s pretty good and supporting me in these situations.’ For some people these steps may be enough, but depending on the anticipated set of needs, a GP contact or community mental health team may also be a good idea. The answer to this question can also start discussion about reasonable adjustments that may include changes to tasks or hours: ‘It would probably be better if I took some time out of the office at this point and focused on my health, but I wouldn’t like to leave it for too long. To begin with we might see if there was a small amount of work I could do from home, but it would almost certainly be a good idea to reduce my hours ...’

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Changing the Culture: Proactive Reasonable Adjustments The stigma associated with mental health problems can make disclosure very difficult for individuals. In order for an individual to disclose such problems they need to be confident that they will not face further discrimination and will be supported and understood. This involves influencing the culture of the organisation and up-skilling staff. An environment that is openly supportive encourages people to disclose, and/or to get help internally or externally. An oppressive culture in which people feel they will be judged, rather than listened to, keeps the problem hidden and not dealt with. A healthy workplace culture would enable employees facing mental health problems to feel confident enough to ask for support or adjustments and be confident that there would be an appropriate response. Managers therefore need to communicate to employees that the organisation cares about health, and mental health, and that ‘feeling stressed’ or having a mental health problem is part of life – it is not a sign of weakness. There is a vast amount of anti-stigma and learning materials available to managers from ‘Time to Change’, Shift and Mind, as well as from the Chartered Institute of Personnel and Development and the Health and Safety Executive (see ‘Further Information’ below). Buy-in from the top is vital: ‘Senior management buy-in is also fundamental to success. Leadership goes beyond endorsement of programmes and involves active and visible participation of senior management in health and well-being programmes’ (Black 2008: 55). Failing to address poor mental health is not only discriminatory but is also costly. The case for mentally healthy workplaces is both a business and ethical imperative. If disclosure is key, so that the employer can assist the individual, how do you begin to build trust? A well-being campaign can be a good start (the Business in the Community website has practical examples and case studies, see ‘Further Information’). Employers have found that: ‘intermediate business benefits include reduced sickness absence, reduced staff turnover, reduced accidents and injuries, reduced resource allocation, increased employee satisfaction, a higher company profile, and higher productivity.’ (Black 2008: 54) At the very least, employers should put in place a mental health, stress or well-being policy to reassure managers and staff by having practice and guidance clearly written down (for details of advice and guidance from Mind, the CIPD and HSE see ‘Further Information’).

Mental Health Awareness Training Good mental health awareness training will help staff to gain an understanding of their own and others’ mental health. A useful outcome is also that staff feel more valued by the organisation, because it is sending out a message it values people’s mental health and their personal well-being, which can improve employee engagement and morale. Staff can also learn how to better manage and understand their own mental health. Good training should also include references to the organisation’s own resources for support such as occupational health or an employee assistance programme. Good training should also give staff ideas on where to look for support externally. From experience of conducting training, we at Mind know that as a result staff are more confident to recognise changes and symptoms in others’ mental health, which brings the organisation one step nearer a ‘psychologically confident’ environment. A real

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commitment to addressing ‘the elephant in the room’ would include mental health or well-being in the organisation’s induction programme. Training programmes that specifically enable staff to manage the mental health of others are also important. These training programmes should include components around basic mental health awareness, internal and external pathways and a strong emphasis on communication. A literature review conducted by Michie and Williams (2003: 7) shows that early referrals to occupational health can significantly reduce sick leave, and also that communication training can be successful. Research shows, therefore, that providing help early is vital for preventing a deterioration of health and the resultant absences.

The Role of Line Managers Line managers are at the forefront. They are often blamed for either causing poor mental health amongst staff or allowing it to develop. However they are also the key to improvements in the workplace, and need to be supported and trained in advanced people management, for example, using the Health and Safety Executive (HSE) line management standards, which can support them to manage mental health. The HSE’s six line management standards, with the backing of the CIPD, cover the following:

• Demands – this includes issues such as workload, work patterns and the work environment;

• control – how much say the person has in the way they do their work; • support – this includes the encouragement, sponsorship and resources provided by the organisation, line management and colleagues;

• relationships – this includes promoting positive working to avoid conflict and dealing with unacceptable behaviour;

• role – whether people understand their role within the organisation and whether the organisation ensures that they do not have conflicting roles; and

• change – how organisational change (large or small) is managed and communicated in the organisation. The organisation needs to be able to support line managers to manage in the above way. The standards should assist managers to avoid being a contributory factor to poor mental health. Emotional intelligence is also vital for line managers. Managing with emotional intelligence means having the capacity, insight and skill to identify, assess and manage your own and others’ emotions. If this is combined with some practical skills, and increased mental health awareness, then managers should be able to recognise declines in mental health but also feel confident to do something about it. Using the Parachute tool should take the uncertainty and fear out of the situation and allow managers to feel confident about managing mental health. An Occupational Health Department can work more strategically with line managers. Often occupational health staff are only involved when an individual’s health has substantially deteriorated and they may be involved in complex HR issues. If the organisation has an employee assistance programme (EAP), this should be widely

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publicised. One company I have worked with found that an 80 per cent increase in use of EAP was followed by a 40 per cent reduction in bullying and grievances.

Conclusion – Summary of Key Points • Everyone has mental health. • Around five million people in work will be experiencing stress and mental health• • • • • •

related problems. Combat stigma – create more open workplace through a communications policy. Make adjustments – it is cheaper to make a reasonable adjustment that not to. Change the way people work – adopt the HSE standards. Invest in your people – train your managers to recognise and manage the problem. Use some tools, find a Parachute. Empower your managers, support your employees. Never underestimate basic people management skills and communication, and managing with emotional intelligence is important.

Further Information The Chartered Institute of Personnel and Development (CIPD) This organisation provides resources on mental health and work, http://www.cipd.co.uk/ subjects/health/mentalhlth

The Health and Safety Executive (HSE) The HSE has produced extensive information on workplace stress, www.hse.gov.uk/stress

Mind A service for employers around mental health, www.mind.org.uk/workplace http://www. mind.org.uk/help/rights_and_legislation/disability_discrimination

Sainsbury Centre for Mental Health The centre provides huge amounts of information and reports on the area of mental health and work, http://www.scmh.org.uk/employment/index.aspx

The Shaw Trust The Shaw Trust provides practical tips for employers, http://www.tacklementalhealth.org.uk

Shift A mental health anti-stigma campaign providing employer and employee resources http://www.shift.org.uk/

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A Time to Change Mental health anti-stigma campaign, http://www.time-to-change.org.uk

References Black, C. (2008) Working for a Healthier Tomorrow: Dame Carol Black’s Review of the Health of Britain’s Working Age Population, London: The Stationery Office. Dickerson, S.S. and Kemeny, M.E. (2004) ‘Acute stressors and cortisol responses: a theoretical integration and synthesis of laboratory research’, Psychological Bulletin, 130:3, 355–391. MacDonald-Wilson, K.L (2005) ‘Managing disclosure of psychiatric disabilities to employers’, Journal of Applied Rehabilitation Counselling, 36:4, 11–21. Michie, S. and Williams, S. (2003) ‘Reducing work related psychological ill health and sickness absence: a systematic literature review’, Occupational and Environmental Medicine, 60:1. 3–9. Office for National Statistics (2009) Attitudes to Mental Illness 2009, Research Report, London: Office for National Statistics. Royal College of Psychiatrists (2008) Mental Health and Work, London: Royal College of Psychiatrists. Sainsbury Centre for Mental Health (2007) Mental Health at Work, London: Sainsbury Centre for Mental Health. —— (2009) Removing Barriers, The Facts About Mental Health and Employment, London: Sainsbury Centre for Mental Health. Scheff, T.J. (1988) ‘Shame and conformity: the defence-emotion system’, American Sociological Review, 53: 395–406. Shaw Trust (2006) Mental Health: The Last Workplace Taboo, The Shaw Trust, http://www.shaw-trust. org.uk WHO (2007) Mental Health: Strengthening Mental Health Promotion, Fact sheet No 220, http://www. who.int/mediacentre/factsheets/fs220/en/

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Age

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chapter

15 Demographic Change and Implications for Workforce Ageing in Europe ANDREa WINKELMaNN-GLEED

Introduction Despite differences between European Union (EU) member countries, most experience demographic change characterised by a decrease in mortality and fertility rates leading to a growing proportion of older people with effects on the working population. As the baby boom generation, born in the middle part of the twentieth century, approaches retirement age, larger cohorts of workers will be retiring while the numbers of new labour market entrants will be insufficient to replace them. Social stability, physical security, improved living conditions and economic as well as medical progress have contributed to longer life expectancy and improved quality of life (Commission Communication 2006). As a result, a major labour shortage is expected, which will pose a serious threat to macroeconomic performance and competitiveness, despite productivity and technological advances (Villoso et al. 2008). It is argued that free movement of labour across EU member countries has further affected the demographic situation (Pollard et al. 2008), leading to a decline in the proportion of people in work in many regions of the EU (De Jong and Eding 2000). To address this, the EU has set employment targets for older people, aiming to raise their participation in the labour market. In terms of the legal framework, despite existing European and national anti-discrimination legislation on age, the law is embedded in wider good employment practice to varying degrees in the EU countries. In addition to the economic and legal framework, intrinsic, non-financial, arguments which relate to the deeper meaning of work1 also shape the discussion on how the quality of work should encourage prolonged workforce participation. Hence an EU taskforce on employment called on Member States to consider key measures related to incentives, lifelong learning

1 Frederick Herzberg, who studied motivation in the 1960s, found that feelings of accomplishment, personal challenge, increased responsibility and belonging were among the strongest intrinsic rewards in organisations.

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and the work environment (Age Concern 2008). Demographic change poses a number of challenges to governments, employers and trade unions:

• How sustainable are social security, health care, pensions and retirement plans systems?

• How can employment skills be maintained in the workforce? • How can the marginalisation of older workers through discrimination and stereotypical perceptions be prevented? The demographic situation may also pose dilemmas for individual older workers whose voices are often overlooked. Some workers will desire early exit from the labour market; others desire greater flexibility; some will be too ill to continue in work or are pushed out of the labour market while others have to continue for financial reasons. These push and pull factors highlight the complexity of work-related and non-workrelated decisions about staying in or leaving employment. Currently it seems that ‘free choice’ to continue in some form of work beyond statutory retirement age (SRA) is left to those who are financially secure, well-educated and with managerial, transferable skills (Commission Communication 2006). This chapter has three aims: 1. To highlight the key issues and context of demographic change in Europe. 2. To draw attention to some of the push and pull factors related to labour market exit. 3. To provide some good practice examples of how these can be managed.

The chapter draws on a European research project, Creative Approaches to Workforce Ageing (CAWA),2 to highlight that more could be done to address the push and pull factors. Deeper understanding of the role of work as one contributor to overall quality of life is required in order to offer more workers over the age of 50 a realistic opportunity and choice to continue being economically active.

Europe’s Demographic Situation The current figures show that while average life expectancy has increased by eight to ten years since the 1950s, there are significant variations between the old and new EU Member States. For example, a 60-year-old woman can now expect to live to 85.3 years of age in France, 6 years longer than in Bulgaria (to 79.3 yrs). A 60-year-old man can expect to live to 80.7 years of age in Spain, 5.4 years longer than in Latvia (to 75.3 yrs) (Eurofound 2007). This increase in life expectancy is leading to an increase in the population between 55 and 60 years of about 1.4 per cent between 2002 and 2010. As a result, by 2050 as much as 20 per cent of Europe’s population could be above 80 years of age (Age Concern 2008). 2 Creative Approaches to Workforce Ageing (CAWA): European Social Funding (ESF) Art 6 funded project: 2005–2007 had the following aims: raising awareness of demographic change and workforce ageing; and developing a ‘Good Practice Guide’ based on organisational case studies and discussion workshops. Countries involved: Austria, Spain, Sweden, UK, Bulgaria. Coordinated by the Working Lives Research Institute (WLRI), London Metropolitan University: http://www. workinglives.org/wlri-project-websites/cawa-en/cawa-en_home.cfm

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This leads to predictions that Europe’s old-age dependency ratio – the number of people aged 65 years and above compared with the number of working-age people (15–64 years of age) – will more than double by 2050 from 1:4 to 1:2 or even less. Today with at least 16 per cent of the population over 65 years old, Europe has the highest proportion of older people in the world, higher than the US and other developed nations (Haub 2007). Yet, these predictions are precarious as Europe’s demographic change is also influenced by migration. Migration figures are composed of first, out-migration of young, skilled workers who move temporarily or permanently, particularly from the new accession countries, to work abroad. For example, Poland saw many skilled workers migrating to Great Britain or Ireland. If not reversed, this trend could lead to a lack of skilled young personnel in socio-economically emerging regions of the EU (Pollard et al. 2008). Second, net immigration into Europe is projected to increase even leading to overall population growth in Europe and delaying the predicted population decline until 2035. It is estimated that in 2008 at least 1.6 million more people migrated to the European Union than from it (European Commission 2008) and such numbers of mainly young people coming into the EU has positive effects on the age dependency ratio. However, these effects are small and as Vos et al. (2008) have calculated, much higher number of immigrants would be required to reverse the trend. Based on figures from the most recent European Commission (2009) Ageing Report, the population of the EU as a whole would be slightly larger in 2060 than today, but half of the population will be aged 48 years or above. While the effects of demographic change on workforce ageing are currently still a predominately European issue, it will soon affect the whole of the developed Western world characterised by high proportions of populations over 60 years of age by 2025. This population ageing will affect health expenditure leading to a reduction in overall employment rates as well as an increase in the proportion of older workers in the EU15 (Jimeno 2004). Thus the demographic shift calls into question both the sustainability of pension systems and the future of Europe’s labour supply (Villosio et al. 2008). Cowell (2004) called this the ‘timebomb’ threatening European pensions. Adair Turner’s (2004) report on UK pensions concluded that in order to afford continued, guaranteed pensions, generations after the baby boomers will have to save more, pay higher taxes and work longer. Others (Roseveare et al. 1996; Fougère and Mérette 1998; and Grant et al. 2004) have stated that unless changes in labour force participation patterns take place, the rise in public health expenditure associated with ageing would increase the fiscal burden and public debt. Currently in the EU15 (the EU Member States before enlargement in 2004), the employment rate for older workers, aged 50 to 65 years of age, is only around 40 per cent, with 50.1 per cent for men and 30.5 per cent for women. This implies that, within the EU15 the majority of over 50-year-olds are economically inactive. The European Commission has forecast that by 2030 the whole of the European Union will face a shortage of some 20.8 million people of working age. While high proportions of older people are not working, the implication is that part of the labour shortage could be met through delayed retirement. Europe has, therefore, developed policy responses, such as the Lisbon European Council of 2000 (Lisbon Council 2000) and the Stockholm European Council of 2001 (Stockholm European Council 2001), which have agreed strategic aims to strengthen employment, economic reform and social cohesion in a knowledge-based economy.

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The principal goal is to increase the average employment rate of older people aged 55–64 years to 50 per cent. More understanding of push and pull factors related to labour market exit is required to facilitate an extension of older people’s working lives in order to reach these targets. This involves addressing current evidence that older workers face discrimination related to recruitment when trying to access work after redundancy or when trying to change employers (Acas 2006). A recent UK documentary programme highlighted this: a father and daughter, both offering their services as accountants approached recruitment agencies. While the young and inexperienced daughter was offered interviews and received calls from other agencies, the father’s application was ignored (‘Too Old to Work’, Dispatches, Channel 4, 9 February 2009). It further involves addressing issues that some older workers could be expensive in terms of salary and pension and perceived costs of potential sick leave, loss of productivity and lack of adaptability to change (Phillipson and Smith 2005). The 2000 Employment Directive on Equal Treatment Article 13 required all Member States to introduce national legislation outlawing direct and indirect discrimination on grounds of age, sexual orientation, religion and belief, and disability by December 2006 (European Commission 2005). Yet current legislation on age has been criticised for being driven by the objective of increasing productivity among older workers (Meadows 2003). While Member States have complied with the introduction of national anti-discrimination legislation, this is embedded to varying degrees in day-to-day working practices. For example, in Austria less than a third of all over 55-year-olds are in employment. The Austrian government introduced Altersteilzeit,3 enabling older workers to reduce their working time with proportionately smaller loss of earnings (AMS 2006; Heuberger 2004). However, as costs exceeded the budget, numbers of beneficiaries decreased and the national social security system still supports early retirement. By comparison, parts of the Swedish labour market are characterised by embedded good practice in relation to the employment of older workers. Moreover, the Swedish trade unions, representing 85 per cent of the workforce, engage actively with the debate on demographic change. While some EU Member States such as Sweden have started to integrate policies and practices facilitating extension of working lives, others still hold on to a bygone era of funded early retirement (Ehrman 2009). In the UK age discrimination legislation was introduced in October 2006, however, Regulation 30 allows employers to set a mandatory retirement age of 65 years (Bytheway 2007; Keldusild 2009), something that is widely viewed as age discrimination (MacGregor 2005 and Munroe 2005, cited in Ibbott et al. 2006: 171). While the Regulation gives employees the right to request to work beyond the SRA, employers are not legally bound to grant such requests. Moreover, any decision on extending working life does not have to be based on an evaluation of the competency of the individual and is not tied to any qualification or occupational requirement (Gunderson 2003). Not only does this seem contrary to initiatives aimed at extending working life, maintaining a default retirement age legalised employers’ ability to discriminate against older workers and confirms that views on age discrimination have not changed as much as those on gender and race

3 ‘Partial retirement’: Employees over the age of 55 years are being offered the opportunity to work part-time as a transition into retirement.

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(Loretto et al. 2007; Walker 2006). The operation of the right to request to work beyond 65 is considered in greater detail by Matt Flynn in Chapter 17.

Retention of Older Workers Much of the literature on the urgency of managing ageing in the labour market is driven by economic arguments (Henkens et al. 2008; Adams and Beehr 2003). Yet, intrinsic, non-financial, arguments shape the discussion on how workers can be encouraged to remain in the labour market. A prerequisite is increased job quality and sustainability over the lifecycle in order to match work with individual quality of life. An EU taskforce called for Member States to consider the following key measures:

• Incentives for workers to retire later and for employers to hire and retain older workers. • Access to training for all regardless of age and to develop lifelong learning strategies. • Improvement in the quality of work to provide attractive, safe and adaptable work environments throughout the working life, including the provision of part-time work and career breaks. These recommendations emphasise key policy areas, such as flexible working and the management of ill-health, which have been stressed in the existing literature (Disney and Hawkes 2003) as being important in providing a non-discriminatory working environment for people of all ages, as well as facilitating the extension of working beyond retirement age. This chapter looks at work as one aspect of overall quality of life and thus draws on the organisational behaviour literature and particularly the concept of ‘commitment to stay in work’ (Meyer and Allen 1997). Meyer and Allen point out that one can be committed to stay with an organisation for a number of reasons without necessarily identifying with what the organisation symbolises: people may stay because they need the financial security, expressing ‘continuance commitment’; and if employees have received support in the past, they may feel a moral responsibility to stay, expressing ‘normative commitment’ to the organisation. Therefore ‘just’ staying in work can adversely affect morale, performance, overall productivity and lead to absenteeism. From an employer’s perspective, ‘affective commitment’ among workers is the most desirable, as it describes employees who are committed because they identify with what the employing organisation stands for and freely associate themselves with that organisation. The concept of organisational commitment offers an understanding of the underlying motives for why a person would remain in work, thus stressing that older workers’ continued employment should above all be based on free choice and fair treatment. Work needs to be balanced with other personal commitments and, apart from the economic benefits, continued employment beyond retirement age is reliant on work impacting positively on overall quality of life.

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Motivations to Extend Working Life Drawing on the case studies conducted as part of the CAWA project, this section begins with the employers’ position, before examining workers’ motivations to extend their labour market participation and ending with comments related to the trade unions’ position. From the employers’ perspective, training and development are important throughout the lifecycle of employment and the contribution made by older employees through their skills and experience is acknowledged within highly-skilled employment sectors. The focus of employers in relation to older workers is two-fold: on the one hand individuals need to develop their skills in order to maintain competitiveness in the labour market and on the other hand older workers can act as resources for skill transfer between the generations. The CAWA case studies show that employers in high-skilled sectors, such as teaching, engineering, skilled construction work and banking argued that retaining older workers could be more cost-effective than recruiting and retraining a new person for the same post (CAWA 2008). Some employers also referred to older workers as being more reliable, dedicated and stable. In this context, older, accomplished workers can benefit the businesses by transferring their knowledge to younger, less experienced workers or new members of staff. This can be facilitated through formal or informal mentoring schemes. At the same time, older workers themselves need to maintain their competitiveness through regular training, in particular, related to technology skills. As employee diversity increases, some companies are eager to promote a public image of being a non-discriminatory employer. Even though there is little empirical evidence that clients prefer to receive services from workers who match them in terms of age, gender or ethnicity, employers cited this as a business reason for employing ageing workers as their customers become older. Achieving this requires employers to invest in retraining or job redesign throughout the life cycle of work. Ahead of the introduction of age discrimination legislation in the UK a number of companies implemented specific initiatives aimed at recruiting older and/or long-term unemployed workers with the objective of training them for existing jobs. While this affected relatively few individuals, the fact that such programmes received considerable publicity allowed them to be seen as ‘good practice examples’, contributing to raising awareness of the issues of long-term exclusion from the labour market due to age, ethnicity or social status. In contrast, in low-skilled sectors, employers generally seemed more hesitant to invest in retention, stating that higher salary cost related to the employment of older workers makes it economically more viable to employ younger employees. In sectors such as retail, packaging, hotels, catering and restaurants little training and induction was required and there was no incentive to address the high staff turnover. For that reason, these sectors employed a low proportion of workers over the age of 40 (CAWA 2008). Older workers’ intentions to remain in work seem to fall into the following three categories: 1. 2.

those workers who have lost motivation and plan to retire; those who have to continue in work, mainly for financial or social reasons, but want to retire as soon as possible; and

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3.

those who want to remain in employment but under more flexible working conditions because they intrinsically enjoy their work or the working environment, including the interaction with colleagues.

A range of personal issues affected retirement plans and employers and policymakers need to take these into consideration in order to manage workforce ageing successfully:

• financial obligations, including mortgages, providing for dependent relatives or subsidising pension shortfalls; caring responsibilities for children or ageing family members; considerations related to a partner’s employment; the level of state social security provisions; loyalty in small, family-run businesses; levels of control and free choice; intrinsic enjoyment of a career; work affirming individual significance; social relationships formed at work and the collective aspect of some jobs; views of work as a social responsibility and wider contribution to society; level of experienced work-related stress; offers of flexible working, such as ‘step-down’ options, phased retirement, annualised working hours; and • offer of a change in role with less responsibility or fewer unsociable working and ‘on call’ duties.

• • • • • • • • • • •

Constructive management of these aspects of work could enable extended participation in the labour market, leaving individuals to experience work as satisfying, enhancing their overall well-being. The trade union perspective on extending working lives seemed weighed down by a long history of arguing for early retirement. While there is a growing awareness within the union movement of the importance of managing demographic change, for some it was still difficult to switch perspectives to engage in bettering options for older workers to remain in work. Furthermore, many retired members tend to give up their membership, as their loyalty often does not extend beyond the workplace into the wider, political agenda. Thus the emphasis among the trade unions was to stress the importance of offering workers a real choice to stay in work or to quit, rather than forcing individuals to extend their working lives because of shortfalls in funding retirement pensions.

Balancing Work with Non-Work-Related Activities This section provides examples of practices related to flexible working in order to balance work with non-work interests among staff. According to the latest European Commission demographic report, the majority of men aged 55–64 years in work were working 40 hours or more per week, whereas, in most Member States, only a minority of women worked so many hours. Even though the proportion of part-time employment among older workers was higher than among younger workers, particularly for older men below the state retirement age, typically the choice is between full-time work and complete

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labour market exit. Thus the latest statistics indicate a lack of flexible working and gradual retirement options (European Commission 2008). Yet, as the interviews with older workers as part of the CAWA project have shown, the choice over working hours and maintaining a meaningful work–life balance seems to become more significant as people grow older. A range of personal and workplace factors influence individual employees’ employment needs and hopes. In order to successfully combine non-work-related commitments with employment, the availability of part-time and flexible working are essential if retention is to be achieved. Some companies want to be seen by the public and their customers as being socially responsible, and part of this includes actively promoting the values older workers are adding to their organisation. Others may offer flexible working arrangements aimed at older workers, yet uptake can be very low and compromised by a cut in salary or a reduction in status within the organization.

Case 1: UK Public Healthcare In the UK public healthcare service, National Health Service (NHS) employers are aware of an increasingly ageing workforce, particularly among sections of the nursing staff. NHS management bodies have recommended a wider implementation of flexible working arrangements by NHS Trusts partly as a response to this. Currently a high proportion of nurses chose to retire from full-time work as soon as possible and those wanting flexibility in their working arrangements sign up with either an external nursing agency or a hospitalbased nursing bank. This arrangement can offer the individual some choice and control over when and how long to work for, as this 56-year-old female NHS manager stated: ‘a lot of our Afro-Caribbean nurses are retiring right now, … and a lot of them signing on as bank nurses when they retire. And then they come back and do, as and when, one or two days’. In the past bank nurses used to be people who wanted to do the occasional extra shift in the evenings or at weekends to earn extra money. Nowadays, some employers use agency staff to cover vacant posts, keeping services running without employing staff on a full employment contract (Tailby 2005). In 2008 a survey of 20,000 flexible workers showed that many of the bank nurses were the main breadwinners, had childcare responsibilities or were getting older: as the NHS workforce is ageing, so is its flexible workforce and in 2008 the average age of a bank worker was 40 years compared with 33 years in 2005. (Nursing Times.net 2009)

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Case 2: Swedish Electricity Company Flexible working transitions had been implemented and run for several years by a Swedish electricity producer and distributor: the so-called ‘80/90/100 model’ gave older workers the opportunity to work 80 per cent of normal working hours for 90 per cent of normal pay and a 100 per cent contribution to their occupational (service) pension. Access to the scheme was available at management discretion and in 2006 was taken up by 165 out of 900 employees who were at least 58 years old, an equivalent of 20 per cent of all older employees. According to the company’s calculations the measure was cost neutral as it reduced sick leave and helped lessen rehabilitation costs. (Mykletun and Furunes 2007)

Other older people who have worked in management or knowledge-based sectors may be encouraged to enter into self-employment. In theory self-employment should offer some older workers a certain element of flexible working, in reality though many may end up working long hours in order to start up and maintain their business. This section has highlighted the importance of work–life balance as workers grow older. With social security provisions that encourage early retirement being phased out, the working environment needs to be adapted in order to facilitate prolonged working lives (Molinié 2003; Naegele and Walker 2006). With society as a whole placing a high value on work, the individual need to feel valued and acknowledged is linked to employment and can be an important pull factor for continuing in work. Thus, if managed constructively, work contributes to perceived quality of life. The ability to combine work with personal circumstances will determine continued labour market participation for those workers who are able to choose, while others’ financial needs force them to continue working.

Workplace Design and Ill-Health Work organisation and workplaces should be designed in such a way that all employees can achieve full working lives (McNair et al. 2004). Generally, older workers who stay in work are more likely to be working part-time and suffer ill-health, such as musculoskeletal disorders, stress and mental health conditions, and particularly those working in manual jobs desire early exit from the labour market (Barnes et al. 2009; Black 2008). Yet recent Equality and Human Rights Commission (EHRC) research showed that, contrary to common perception, 60 per cent of older workers said they were as physically capable now to perform their jobs as they were when younger (Smeaton et al. 2009). While workers in some sectors may be more prone to specific types of illnesses, employees in all sectors and of all ages can be affected by forms of ill-health, long-term sickness or disability and the management of workplace design requires clear preventative policies. These need to be adjustable to individual circumstances and based on consultation with individuals and trade unions, particularly as workers get older and physical strength may be reduced. Job design further focuses on health-related issues and is particularly important in physical and manual jobs which have high attrition rates and costs related to ill-health.

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In some sectors requiring a high level of physical fitness, the cost of sick leave as a result of work related ill-health among older workers could impede their employment (Molinié 2003; DWP 2004). More commonly, employer’s fear of potential sick leave combined with perceived loss of productivity with age inhibits extension of working lives (Phillipson and Smith 2005). Thus the focus needs to be on preventative measures, promoting good health throughout the lifecycle. While health and safety training, including physical handling is mandatory in many sectors across Europe, more proactive measures could include provision of occupational health assessments, support of physical exercise and healthy eating programmes. This could involve the provision of good staff canteens or vending machines offering healthy snack options; rest places at work where shift working requires staff to take their rest near their workplace; subsidised membership of gyms and health clubs; education about health and fitness and support for staff suffering from mental health problems related to stress at work.

Case 3: Swedish Construction Sector The Swedish construction sector provides an example of how welfare schemes can be extended to rehabilitate workers on long-term sick leave. Construction work is usually physically demanding and for many workers it is difficult to continue working even up to retirement age. Once out of work, the over 50-year-old age group finds it very difficult to re-enter the labour market, with one in five remaining long-term unemployed (TAEN 2009). ‘Galaxy’ was a rehabilitation programme for unemployed workers and for those employees in the construction industry who were unable to carry out their work. The Galaxy programme was a cooperation between the employer’s organisation, trade union and the county labour board. When joining the scheme, an individual rehabilitation plan was drawn up for the worker who was then placed in a company where the job was adjusted to take ac­count of the particular disability. For some this meant re-entering the labour market in a different role or on adjusted hours. While the scheme was age inclusive, for employers it meant making the most of the skills and experience older workers were contributing, while saving on the costs of sick leave.

Conclusions Within the EU there are significant differences in labour markets, awareness of demographic change and its influence on social and economic well-being, and the development of age-friendly policies. Differences imply that any policy solutions have to be specific and sensitive to the nature of local, regional and national labour markets. While states such as Sweden are starting to integrate policies and practices, others have only just discontinued funding of early retirement. In order to foster individual choice, older workers should neither be forced to continue working nor feel compelled to leave employment. To date, even where companies across Europe invest in best practices, these are often limited in scale.

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The constructive management of extending working lives for older workers seems to depend on successful employment relations, involving open and clear communication with the individual employee. In this context, it is important to monitor the working conditions of workers approaching retirement age, namely those between 45 and 54 years old to determine the factors which may lead to their early exit from the labour market. The Director of the European Foundation for the Improvement of Living and Working Conditions made the point that it is also important to monitor and improve work sustainability among young workers, who face a higher incidence of job insecurity (Jorma Karppinen in: Villosio et al. 2008). Thus if age-related policies are free of discrimination against workers of all ages, they become part of the overall organisational culture fostering positive commitment. While organisational commitment (Mowday et al. 1979) is not always in the interest of the employer, in sectors, such as small and medium-size employers (SMEs) and highly professional jobs, it is essential to look after dedicated staff who are willing to make a positive contribution to the organisation. As demographic change leads to fewer people in employment, the ability to foster affective commitment among workers will become increasingly important (Mullins 2002). There are some overarching concerns: first, employment transitions related to the key human resources functions, including recruitment and access to training need to be free of discrimination and based on data resulting from age monitoring; second, the issues of work–life balance and flexible working need to be addressed in a consultative manner stemming from dialogue with the individual worker and third, workplace design needs to be supportive of the needs of all workers in order to prevent and manage ill-health. In the UK, for example, public funding for workplace training is often focused on the 18 to 26 age group. Mayhew and Rijkers (2004) point out that access to training is limited for older workers, particularly those in routine or semi-routine occupations. An important issue in this context concerns access to new technologies which increase productivity, but have been found to be biased against low-skilled workers and resulted in job losses for older workers. Partly because older workers are not given access to the training and partly because these technologies reduce the number of staff required (Crépon and Aubert 2003). Where innovative measures exist, they assist in creating a balance of priorities between working, living, health and well-being, giving a stronger priority to both physical and psychological aspects of occupational health. Flexible working policies are one way for employers to offer improved work–life balance. For employers to engage in innovative measures to prevent early exit from the labour market seems most applicable in sectors with limited competition for workers of similar skill levels (Green 2005). Therefore, in most European countries any good practice guides probably originate in knowledge-based sectors with low physical demands on workers and a high level of transferable skills. At work an individual’s effectiveness and well-being are linked to the interaction between personal identities and work-related ones (Tajfel and Turner 1979). Thus achieving balance between work and other aspects of an individual’s life is of real importance. For example, while parents’ right to request flexible working in the UK is well established, the right to request flexible employment arrangements if an adult is caring for another adult was only introduced recently in April 2009.4 (Evandrou and Glaser 2004; Loretto 4

http://www.carers.org/news/new-right-to-request-flexible-working-for-carers-of-adults,1570,NW.html

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et al. 2005). Existing studies have shown that inflexible working hours can contribute to pushing workers into early retirement as they interfere with non-work-related commitments and interests (Penner et al. 2002). While there is no clear evidence from the existing literature that family-friendly working practices, including flexible working arrangements, are positively linked to performance (Giardini and Kabst 2008), they are important in encouraging an extension of working lives. Another important pull factor for some workers relates to the social aspect of work through interaction with colleagues. Arnold et al. (1998) point out that understanding of the area of relationships at work and the impact of workplace socialisation is still limited. Nevertheless, poor working relationships are seen to be reflected in low levels of interest, trust and supportiveness and these can negatively affect job satisfaction, motivation and well-being at work, while supportive relationships can have the opposite effect – thus forming a push or pull factor. With ill-health remaining the main push factor leading to early exit from the labour market (Humphrey et al. 2003; Barnes et al. 2002), workplace design or re-design needs to be considered as a preventative measure applied in an innovative and non-discriminatory manner. Companies implementing mentoring schemes do so because they are concerned about losing the talent that older workers bring to the job, and thus engage in skill transfer between older and younger workers either formally or informally. Such initiatives utilise the knowledge, understanding and maturity of older workers, which are shared with younger workers, increasing their confidence. Other companies offer job re-design through a role change without compromising pension arrangements. Sectors with high proportions of manual workers, such as the construction industry, may need to develop less physically demanding alternatives or work in cooperation with trade unions and employers’ organisations on rehabilitation programmes. In cases where pay is directly related to productivity, alternative employment may require the protection of pay and pensions, avoiding earnings reductions for older workers. While economic concerns of governments are an obvious driver to prolong working lives and the concern over pensions has driven much of the debate on demographic change, this chapter has argued that individual experience related to push and pull factors needs to be heard and addressed in order to implement extended working policies successfully. Demographic pressures as well as legal and structural changes in the world of work mean that increasing numbers of workers will be working beyond the current SRA and European employers will be forced to adapt accordingly. If Europe manages to develop coherence and cooperation over these issues, it will have much to offer the rest of the developed world, as demographic change becomes an increasingly global challenge.

References Acas (2006), Guidance on Age and the Workplace, London: Acas. http://www.acas.org.uk/index. aspx?articleid=801 Adams, G.A. and Beehr, T.A. (2003), Retirement, Reasons, Processes, Results, New York: Springer. Age Concern (2006), The Employment Equality (Age) Regulations 2006, 1 October, http://www. ageconcern.org.uk/AgeConcern/age_discrimination.asp —— (2008), Key Facts: The European Union, Older Workers and Employment, London. http://www. ageconcern.org.uk/AgeConcern/eu_and_employment.asp

D e m o g r a p h i c C h a n g e a n d I m p l i c a t i o n s f o r Wo r k f o r c e A g e i n g i n E u r o p e 215 AMS (2006), Altersteilzeitgeld [Pensions], Stand 1 January, http://www.ams.or.at/neu/3016_815.htm Arnold, J., Cooper, C.L. and Robertson, I.T. (1998), Work Psychology, London: Financial Times Publishing. Barnes, H., Parry, J. and Lakey, J. (2002), Forging a New Future: The Experiences and Expectations of People Leaving Paid Work Over 50, Bristol: Policy Press. Barnes, H.; Smeaton, D. and Taylor, R. (2009), An Ageing Workforce – The Employer’s Perspective, IES Report 468, October. Black, C. (2008), Working for a Healthier Tomorrow, London: The Stationary Office. Bytheway, B. (2007), ‘Choose when you stop? Retirement and age discrimination’, Policy & Politics, 35(3): 551–555. CAWA project (2008), Creative Approaches to Workforce Ageing, European Social Funding, Art. 6 Funded project. Coordinated by WLRI, London. November 2005–November 2008. http://www. workinglives.org/wlri-project-websites/cawa-en/cawa-en_home.cfm Commission Communication (2006), The Demographic Future of Europe –From Challenge to Opportunity. Brussels: Commission of the European Communities. 12 October. Cowell, A. (2004), ‘Demographic time bomb threatens pensions in Europe’, New York Times. 26 November, http://www.nytimes.com/2004/11/26/international/europe/26pension.html Crépon, B. and Aubert, P. (2003), ‘Productivité et salaire des travailleurs âgés’ [Productivity and salary of older workers], Economie et Statistique, 368: 157–185. De Jong, A.H. and Eding, H. (2000), ‘Main trends in the labour force in the European Union’, Maandstatistiek van de Bevolking, 10: 9–16. Disney, R. and Hawkes, D. (2003), Declining Employment of Older Workers: Has Britain Turned the Corner?, The Institute for Fiscal Studies. http://www.ifs.org.uk/cera/publications.php?publication_ id=2575 DWP (2004), Working Age Labour Market Summary. http://www.dwp.gov.uk/asd/asd1/workandpens/ 2002/Working_Age.pdf Ehrman, R. (2009), The Power of Numbers, Why Europe Needs to Get Younger, London: Policy Exchange. Eurofound (2007), Life Expectancy at Birth, 27 August, http://www.eurofound.europa.eu/areas/ qualityoflife/eurlife/index.php?template=3&radioindic=1&idDomain=1 European Commission (2005), Age Discrimination and European Law, Brussels: Employment and Social Affairs. http://ec.europa.eu/employment_social/publications/2005/ke6805147_en.pdf —— (2008), Demography Report 2008: Meeting Social Needs in an Ageing Society, Brussels: Commission Staff Working Document. —— (2009), 2009 Ageing Report: Economic and Budgetary Projections for the EU-27 Member States (2008–2060), Euopean Economy, 2. http://ec.europa.eu/economy_finance/publications/ publication14992_en.pdf Evandrou, M. and Glaser, K. (2004), ‘Family, work and quality of life: changing economic and social roles through the life course’, Ageing and Society, 24: 771–791. Fougère, M. and Mérette, M. (1998), Population Ageing and Economic Growth in Seven OECD Countries, Working Chapter No. 1998–2003, Ottawa: Department of Finance. Giardini, A. and Kabst, R. (2008), ‘Effects of work-family human resource practices: a longitudinal perspective’, The International Journal of Human Resource Management, 19(11): 2079–2094. Grant, J., Hoorens, S., Sivadasan, S., Loo, M. van het, DaVanzo, J., Hale, L., Gibson, S. and Butz, W. (2004), Fertility and Population Ageing. Causes,Consequences and Policy Options, Santa MonicaLeiden-Cambridge-Berlin: RAND Corporation, 2004.

216 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Green, F. (2005), Demanding Work: The Paradox of Job Quality in the Affluent Economy, New York: Princeton University Press. Gunderson, M. (2003), ‘Age discrimination in employment in Canada’, Contemporary Economic Policy, 21(3): 318–328. Haub, C. (2007), World Population Data Sheet, Population Reference Bureau. http://www.prb.org/ presentations/07WorldDataSheet_presentation.ppt Henkens, K., Remery, C. and Schippers, J. (2008), ‘Shortages in an ageing labour market: an analysis of employers’ behaviour’, The International Journal of Human Resource Management 19(7): 1314– 1329. Heuberger, R. (2004), Activage, Deliverable 2: WP 2 – Country Report Austria, Active Ageing and the Labour Market, May. Humphrey, A., Costigan, P., Pickering, K., Stratford, N. and Barnes, M. (2003), Factors Affecting the Labour Market Participation of Older Workers, London: DWP. Jimeno, J.F. (2004), Demographic Change, Immigration, and the Labour Market: A European Perspective, Documento de Trabajo 2004–2018. http://www.fedea.es/hojas/publicationes.html#Documentos de Trabajo Keldusild, L. (2009), ‘Retirement under the age equality legislation: the Heyday challenge’, Business Law Review, 30(1): 2–4. Lisbon Council (2000), Lisbon Agenda. http://www.euractiv.com/en/future-eu/lisbon-agenda/article117510; http://www.eurofound.europa.eu/eiro/2000/04/feature/eu0004241f.htm; http://www. europarl.europa.eu/summits/lis1_en.htm; http://europa.eu/legislation_summaries/education_training_ youth/general_framework/c10241_en.htm Loretto, W., Vickerstaff, S. and White, P. (2005), Older Workers and Options for Flexible Work, Working Chapter Series No.3., Manchester: Equal Opportunities Commission. Loretto, W., Vickerstaff, S. and White, P. (2007), ‘The future for older workers: opportunities and constraints’, in W. Loretto, S. Vickerstaff, and P. White (eds), The Future for Older Workers: New Perspectives, Bristol: The Policy Press, pp. 203–226. Lutz, W. (2006), European Demographic Data Sheet 2006, Vienna and Washington, DC: Vienna Institute of Demography, International Institute for Applied Systems Analysis, and Population Reference Bureau. MacGregor, D. (2005), ‘The ass and the grasshopper: Universities and mandatory retirement in Canada’, in P. Ibbott, D. Kerr and R. Beaujot, ‘Probing the future of mandatory retirement in Canada’, Canadian Journal on Aging, 25(2): 161–178. McNair, S., Flynn, M., Owen, L., Humphreys, C. and Woodfield, S. (2004), Changing Work in Later Life: A Study of Job Transitions, University of Surrey: Centre for Research into the Older Workforce. Mayhew, K. and Rijkers, B. (2004), ‘How to improve the human capital of older workers, or the sad tail of the magic bullet’, Chapter prepared for the joint EC OECD seminar on Human Capital and Labour Market Performance held in Brussels, 8 December. Meadows, P. (2003), ‘Retirement Ages in the UK: A Review of the Literature’, Employment Relations Research Series, 18, London: Department of Trade and Industry. Meyer, J.P. and Allen, N.J. (1997), Commitment in the Workplace, Theory, Research and Application, London: Sage. Molinié, A-F. (2003), Age and Working Conditions in the European Union, Dublin: European Foundation for the Improvement of Living and Working Conditions. http://www.eurofound.europa.eu/ publications/htmlfiles/ef02106.htm; http://www.eurofound.europa.eu/publications/htmlfiles/ ef02107.htm

D e m o g r a p h i c C h a n g e a n d I m p l i c a t i o n s f o r Wo r k f o r c e A g e i n g i n E u r o p e 217 Mowday, R.T., Steers, R.M. and Porter, L.W. (1979), ‘The measurement of organisational commitment’, Journal of Vocational Behaviour, 14: 224–247. Mullins, L.J. (2002), ‘Managerial behaviour and effectiveness’, in L.J. Mullins (ed.), Management and Organisational Behaviour, 6th ed, London: Prentice Hall, pp. 207–251. Munroe, J. (2005), ‘The debate about mandatory retirement in Ontario universities: Positive and personal choices about retirement at 65’, in C.T. Gillin, D. MacGregor and T.R. Klassen (eds), Ageism, Mandatory Retirement and Human Rights in Canada. Toronto: Canadian Association of University Teachers, James Lorimer, in Ibbott, P., Kerr, D. and Beaujot R. (2006) ‘Probing the future of mandatory retirement in Canada’, Canadian Journal on Aging, 25(2): 161–178. Mykletun, R.J. and Furunes, T. (2007), ‘Promoting health and workability in Vattenfall AB Nordic, Sweden’ in: Kumashiro, M. (ed.), Promoting of Work Ability Towards Productive Ageing. Selected papers of the 3rd International Symposium on Work Ability, Hanoi, Vietnam, 22–24 October, London: CRC/Taylor & Francis, pp. 169–176. Naegele, G. and Walker, A. (2006), A Guide to Good Practice in Age Management, European Foundation for the Improvement of Living and Working Conditions, Luxembourg: Office for Official Publications of the European Communities. http://www.eurofound.europa.eu/pubdocs/2005/137/ en/1/ef05137en.pdf Nursing Times.net (2009), ‘Why flexible working is an active career choice within the NHS’. http:// www.nursingtimes.net/nursing-times-this-weeks-issue/nhs-professionals/why-flexible-workingis-an-active-career-choice-within-the-nhs/5001764.article Penner, R.G., Perun, P. and Steuerle C.E. (2002), Legal and Institutional Impediments to Partial Retirement and Part-time Work by Older Workers, Urban Institute Research Report, Washington DC: Urban Institute. Phillipson, C. and Smith, A. (2005), Extending Working Life: A Review of the Research Literature, DWP Research Report No. 299, London. Pollard, N., Latorre, M. and Sriskandarajah, D. (2008), Floodgates or Turnstiles? Post-EU Enlargement Migration Flows to (and from) the UK, London: IPPR. 30 April. Roseveare, D., Leibfritz, W., Fore, D. and Wurzel, E. (1996), Ageing Populations, Pension Systems and Government Budgets: Simulations for 20 OECD Countries, Economics Department Working Chapters No. 168, Paris: OECD. Smeaton, D., Vegeris, S and Sahin-Dikmen, M. (2009), Older Workers: Employment Preferences, Barriers and Solutions, EHRC Research Report 43, Stockholm: European Council. www.ec.europa. eu/infonet/forum/026.pdf TAEN, Age Concern, Help the Aged and CIPD (2009) Briefing: The Impact of the Recession on Older Workers. http://taen.org.uk/uploads/resources/Impact_of_the_recession_on_older_workers_media_ briefing1.pdf Tailby, S. (2005), ‘Agency and bank nursing in the UK National Health Service’, Work, Employment & Society, 19(2): 369–389. Tajfel, H. and Turner, J.C. (1979), ‘Social groups and identities’, in Robinson, W.P. (ed.), Developing the Legacy of Henry Tajfe, Oxford: Butterworth-Heinemann. Turner, A. (2004), Turner Commission Report: Pensions: Challenges and Choices, Independent Pensions Commission. 12 October. Villosio, C., Di Pierro, D., Giordanengo, A., Pasqua P. and Richiardi, M. (2008), Working Conditions of an Ageing Workforce, Dublin: Office for Official Publications of the European Communities. www. eurofound.europa.eu Vos, R., Ocampo, J.A. and Cortez, A.L., eds (2008), ‘An ageing world population’, in Ageing and Development, London: Zed Books Ltd.

218 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Walker, A. (2006), ‘Active aging in employment in meaning and potential’, Asia-Pacific Review, 55(1): 121–139.

chapter

16 Ageism, Solicitors

and Female Mature Entrants: An Awkward Combination ALEXaNDRINE GUYaRD-NEDELEC

Introduction The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006, outlawing discrimination on the basis of actual or perceived age and covering all ages;1 they are restricted to the fields of employment and vocational training (DTI 2006: 2). Not all distinctions on grounds of age are discriminatory, but direct age discrimination occurs when on grounds of B’s age, A treats B less favourably than he treats or would treat B, unless A can objectively justify that treatment (Regulation 3). In the legal profession, especially among law firms, late entrants still face major difficulties when it comes to securing a training contract or a position as a solicitor once they have managed to qualify: there is evidence of widespread ageism in the profession. Indeed, notably due to a patriarchal heritage, the legal profession has never been known for its diversity record. Despite equality and diversity campaigns and a steady increase in the number of female entrants, there remains much to be done, notably in terms of gender equality. As is widely recognised in the literature, ‘constant vigilance and campaigning is required if women are to gain opportunities to pursue their professional legal careers to the extent of their choosing’ (McGlynn 2003a: 156). This raises particular questions about the situation of mature female entrants, who are potentially more likely to be the victims of discrimination when embarking on a legal career, even though multi-faceted identities cannot be accounted for by a mere cumulative or additive approach (Adib and Guerrier 2003; Jordan-Zachery 2007). Female mature entrants2 to the legal profession stand at the crossroads between older/mature 1 There are exceptions if an applicant is over the age of 65 or over the employer’s normal retirement age (if the latter is over the age of 65) at the time of their application or within six months of their application to the employer (see Regulation 7). 2 It is hard to give a precise definition of the terms ‘mature’ and ‘older’ as age and perceptions of it are so subjective, as will be discussed later. Generally, ‘older women’ might be considered as those aged 50 and over, but this limit is a mere indicator.

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age and gender and therefore epitomise a particular aspect of intersectionality, a concept defining multi-faceted identities, which is increasingly recognised both within the academic and institutional spheres. In this context, this chapter aims at analysing an apparent paradox: age discrimination against mature women. Older age should work in women’s favour as it appears that much of the discrimination women face is linked to maternity.3 Thus, as they will not take maternity leave and have fewer childcare responsibilities, employing older women should be an attractive option for employers. Even though men also seem to suffer from prejudice against older age, this chapter will not include male mature applicants, as it aims to highlight the intersection of female gender and age. The focus is on this particular form of intersectionality, which is still relatively under-studied: ‘little is known about how age interacts with gender in producing employment disadvantage’ (Duncan and Loretto 2004: 97). This chapter addresses the issue of recruitment rather than retirement (which is discussed in Flynn, Chapter 17), as ageism is too often associated with the trend towards ‘early exit’ (Duncan and Loretto 2004: 95). Undeniably, age discrimination does not only concern retirement, and covers the whole spectrum (Loretto, Duncan and White 2000). The chapter first addresses the paradox of discrimination against mature women, then describes the three stages of entry to the legal profession. Finally the chapter examines more particularly the impact of the legislation on age discrimination in the legal profession before discussing some possible solutions to combating ageism.

Mature Women: An Employment Paradox Surprisingly, many of the 19 lawyers interviewed4 for my research on intersectionality suggested that sex discrimination belonged to the past, and that women were now fully accepted in the legal profession, but that there was still a lot of discrimination on the grounds of maternity. However, statistics show that women are not continuing through the profession in equal numbers:

• Women are the majority of new admissions to the profession in each year since 1996– 1997.

• Women were 59.9 per cent of the new admissions in 2006–2007. • Women account for 43.4 per cent of solicitors with practising certificates.

3 For example, concept of ‘maternal wall’ which emerged in the 1990s. See Biernat, M., Crosby, F. and Williams, J. (eds) (2004). The maternal wall: Research and policy perspectives on discrimination against mothers. Special issue of the Journal of Social Issues, 60:4. 4 The doctoral research on intersectionality and the legal profession included a series of semi-structured interviews with women solicitors, barristers and judges, and other female agents in the legal sphere in England, conducted from October 2007 to September 2008. All the interviewees can be considered as having an identity which might lead to potential discrimination, in particular intersectional discrimination (due to the interaction of their gender with one or several other facets of their identity: age, race/ethnicity, sexual orientation, disability, religion, and so on). The focus of the interviews was on the consequences of these interactions in the work environment only. The age of the interviewee is given in brackets at the end of the quotes. This chapter is also based on private correspondence (13 emails) between one of the interviewees and other female solicitors and mature applicants; the age of each correspondent is given in parentheses.

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Furthermore there is still a pay gap on entry to the profession as, on average, male trainees are offered starting salaries which are 12.8 per cent above the average for females (Cole 2007: 42–44). Moreover, studies of retention and promotion (for example, Webley and Duff 2007) unmistakably show a glass ceiling and high rates of women leaving their law firms prematurely. However, maternity is an important issue, and many of the problems faced by women revolve around their status and responsibilities as mothers or mothers to be, even if all women do not have children (see also James, Chapter 4). Accordingly, employing mature women should be considered a less risky option for employers, and law firms, in particular, as they are unlikely to go on maternity leave and are less encumbered with childcare responsibilities. In addition, older women may reinvest their skills in a new career (or start paid work again if they had stopped) once their children have left the home. In spite of this, mature women embarking on a legal career still have a very hard time. The paradox they embody was summarised by Maguire (1995: 564) as follows: Ageist formations render older women even less attractive to future employers because they might be regarded as less able/resilient than older males. Of course, the converse could equally be true: an older woman might be seen as more reliable and unlikely to take maternity leave.

The Intersection of Female Gender and Age Mature women face particular challenges, and are sometimes ill equipped to deal with the discrimination they may encounter. This does not derive from their age per se but from the culture in which they were raised. For those who grew up in western societies before the 1960s, very traditional gendered roles dominated their formative years (Arber et al. 2007: 148). Women who are in their 50s or 60s now were thus raised at a time when sex discrimination was rife and legal. The Sex Discrimination Act only dates back to 1975, and the Equal Pay Act to 1970 and each was only implemented gradually. A gap still exists between women’s and men’s pay that is not expected to be closed until 2085 (GEO 2008: 7), which demonstrates that implementation might be defective and that enacting new legislation cannot solve all the problems. Some women may thus adopt an attitude of resignation instead of challenging the prejudices they come across. As one interviewee put it: I think, generally, there’s something about the older generation of women, not your generation, not my daughters’ generation, who – it’s inbuilt in us not to be strident and pushy and not to say ‘Why not me? Why are you favouring men over me?’ (Woman aged 63)

Age differs from the other categories of discrimination in that it is much more fluid, and by definition is not fixed (Moore 2007: 386). Moreover, it may be even more subject than the other equality strands to the perception of others, as illustrated for instance by the fact that the legislation outlaws discrimination on the basis of perceived age as well as actual age. This is in keeping with the fact that ‘the meaning and experience of age, and of the process of ageing, is subject to historical and cultural processes’ (Wyn and White

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1997: 10, quoted in Hopkins and Pain 2007: 287). More than a biological fact, age is thus a social construct, and studying age in its interaction with gender (or other categories) therefore requires particular attention, in order not to fall into over-generalisation. Due to the nature of age, seeing uniformity instead of difference in women’s experiences would lead to misrepresentations, and to the invisibility of sub-groups of women, such as childless women or older mothers of adult children (Krekula 2007: 156–159).

When Does a Woman Become Older? The shifting nature of age may partly explain the fact that the age of applicants who are considered ‘mature applicants’ differs widely, which is another obstacle when trying to find emerging patterns. Duncan and Loretto (2004) also insist on the fact that women are often perceived as ‘old’ earlier than men, a fact that led Maguire to question when a woman becomes an ‘older’ woman (over 30, 35, 40, or post-menopause?), and whether age has a different impact for women than men on their working lives and work experiences (Maguire 1995). Duncan and Loretto’s findings also tend to confirm that ‘women may experience greater age discrimination over all ages than do men, and that “double jeopardy”, as it applies to women, may be reinforcing rather than simply additive’ (2004: 102). Equally interesting is their conclusion that women seem to have internalised these barriers linked to age, and therefore try to look as young as possible as a means of avoiding the disadvantages of prejudice against ageing. The reasons for mature candidates’ decision to enter the legal profession later in life deserve investigation, but are not at the core of this chapter, which aims at ‘unpacking’ the complexity of the interaction between age and gender, with a view to presenting a critique of equality legislation. What is crucial, however, for these women, is whether their ability to exercise choice is genuine and is followed by real employment prospects, as discussed by Fredman and Spencer (2003: 3). Therefore, while this first section briefly presented the paradox embodied by mature women, the next section tries to assess whether mature entrants are really offered the possibility of pursuing their choices.

Forcing One’s Way into the Legal Profession This section looks at the trajectories of female mature entrants to the legal profession (solicitors only) from a chronological point of view, by focusing first on their studies, then on the training contract, and finally on their search for a position as a qualified solicitor. The Law Society has analysed the age distribution of solicitors admitted to the Roll5 in 2006–2007. Taken overall, the average age of those admitted was 29.5 years; just over three fifths (60.9 per cent) of new admissions were aged 28 years or less. These figures give an indication of the barriers that may exist for mature candidates, as the vast majority of new admissions are under age 30, as illustrated by the table below. The figures also reveal that women are slightly more likely to be in the younger age groups, which might make it harder for women trying to enter the profession as mature students. 5 Trainees who have passed all the examinations and successfully completed the training period apply to have their names entered on the Roll of Solicitors (register of all the solicitors of England and Wales, kept by the Solicitors Regulatory Authority for the Law Society); this is the final step for trainee solicitors, who then become qualified lawyers. To practise, solicitors also need a practising certificate (they can be on the Roll even if they are not practising).

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Table 16.1 Age distribution of solicitors admitted to the Roll in 2006–2007 Age 24–29 30–34 35–39 40–44 45–49 50–55 55 and over Total known Unknown

Women 72.2% 15.5% 6.2% 3.4% 1.9% 0.5% 0.2% 4,318 5

Men 64% 18.7% 8.7% 4.4% 2.2% 0.9% 0.8% 2,891 9

Source: Cole, 2007: 45.

It seems logical that the majority of new entrants are under 30, as mature students represent a minority of people who embark on a legal career either after another career or after taking time out of the labour market. However, it is hard to measure the percentage of mature students who are not admitted to the Roll, as the annual statistical report does not take into account age in its figures on post-graduate education and training; for this reason, it is also unclear whether more women than men try and enter the profession as mature students.

Studying Law Despite the barriers they have to overcome, older students (aged 50 and over – one per cent of the student population), are believed to reach high levels of achievement; they are perceived as bringing unique attributes to their studies, including maturity, wisdom and stability (Grant et al. 2006: 4). Even though ‘mature students’ encompass a wide age group, the qualities attributed to older students might be replicated in mature students more generally. At least in the cases of the women who were interviewed and in the correspondence, mature law students seem to achieve good results. Therefore, the law firms these women applied to could not rely on academic results as a way of objectively rejecting them. Mature applicants whose academic achievements are good are then all the more frustrated by the way employers treat them when they are looking for training contracts. Teachers on the Legal Practice Course (LPC) and career advisers are well aware that mature students have a hard time, even if they pass the LPC successfully: Throughout my time at the College of Law I was constantly met with a negative attitude from Careers Advice who advised me that less than two per cent of mature students win training contracts. (Woman aged 49)

Some mature applicants then complain about the fact that they are still enrolled for the LPC, and have to pay the fees, whereas their prospect of getting a training contract or a position as a qualified solicitor is scarce:

224 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k If a firm has no one over 50 working there, it’s obvious the corporate climate will not be welcoming to a 45-year-old trainee. Yet law schools continue to accept the tuition of bright and accomplished older students. (Comment posted on Legal Week website 19 October 2007 in response to Ruckin 2007)

While mature students may feel that LPC providers are simply looking for profit and should not accept mature students if they know that they will not secure training and employment, the issue is more complex, as the Age Regulations make it unlawful for a body which confers professional or trade qualifications to discriminate against a person on the grounds of age (Regulation 19) (DTI, 2006: 11). The risks and costs of making the transition from another career to the legal profession will not be discussed here although these aspects are important. Studying for the Common Professional Examination (CPE) and LPC is a real investment both financially and in juggling family responsibilities (for mature women who still have children at home) with studying. Although law students are often funded for their CPE and/or LPC by a firm that recruits them beforehand, such practice is almost unheard of for mature students, and the fees are high. In the light of the financial burden represented by the LPC, the next section will look at the prospects for mature students who are looking for training contracts in order to obtain their vocational training and qualify as solicitors.

Looking for a Training Contract Once they have been successful at completing the LPC, mature women have to start hunting for a training contract, which is often far harder than imagined. Despite the warnings of lecturers and career advisers and their constant advice to network, mature female applicants find endless rejection hard to swallow, and the struggle may be very frustrating: Of late, I have felt very much that I started to follow this ambition too late in life and was beginning to wonder why I did it at all. It is, when it comes to securing a training contract, a very age-oriented profession. (Woman aged 49)

This picture is confirmed by the Open University Law Society, which addressed the issue in 2003. The then president, Richard Hand, said ‘We’ve heard that a lot of law firms allegedly don’t take trainees over 30. This ties in with the fact that there is currently no law against age discrimination.’ The Trainee Solicitors Group had estimated that the average trainee was aged between 23–25 years (Farrar 2003). In spite of the introduction of the 2006 Regulations, the situation seems to have stayed much the same, as is revealed for instance by the fact that the Trainee Solicitors Group have dedicated an entire section of their website to mature students, in order to give them advice that may help them overcome their disadvantage in the legal recruitment market.6 The public sector may offer a fairer recruitment process: a woman looking for a training contract at the age of 48 describes her experience in a letter to the Law Society 6

http://www.tsg.org/mature-students.html

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Gazette, and concludes that the public sector is far more objective in terms of recruitment: ‘I am now six weeks away from qualification in the Government Legal Service, whose trainee recruitment process was impressively objective’ (Law Society Gazette, 1 November 2007). A widening gap does seem to be growing between the public and private sectors, and although some interviewees suggested that the more positive approach of the public sector was mere political correctness, the public sector (Government or local authorities) seems much more respectful of the equality legislation than the private sector. In the private sector, the difficulties late entrants encounter may partly be attributed to the culture of the legal profession, which very much favours connections, as well as high-profile universities. This may be to the detriment of mature students, who are sometimes denied opportunities because of family favouritism for instance: Many law firms are driven by father/son/daughter, etc. succession. I was at an interview the other day who informed me they had a new trainee starting next July, who was the Senior Partner’s son. They told me he did not know what he wanted to do really but was giving law a go! So annoying when there are people like us who are so committed. (Woman aged 49)

In the light of all the potential difficulties facing women mature entrants, the importance of networking may be even more important for them, and they are very often advised to network as much as possible, as soon as they start the conversion course (CPE) or the LPC: I was warned that it would be very difficult for me to qualify. When I did my law conversion degree at the university […] my personal tutor […] said […] ‘you’re going to find it difficult’. I don’t think I really took her seriously; her advice was ‘You must network, you must use all your friendships and be totally blatant about it.’ And I am realising that it is very much who you know or whom you are prepared to go and ask. Which is something a lot of women can’t do. They don’t push themselves forward, it is … vulgar to do that. But you have to do it! (Woman aged 63)

Securing a training contract therefore appears to be the grail of mature women who want to qualify as solicitors; but the ageist stereotypes that prevail in the profession often seem to outweigh their motivation and dedication to the new professional path they have chosen. The next section shows that more difficulties may lie ahead even when one has managed to obtain a training contract and has qualified.

Finding an Employer The qualities of mature persons and their input seem particularly ill-recognised in the legal profession. Law firms tend to perceive mature female entrants as a burden, either financially (the latter will often require higher wages than young entrants to the profession) or as a person. A wide range of reasons may account for the negative attitude these women encounter. Law firms may fear that they are not going to get along with the rest of the team, which is a frequent stereotype regarding older workers. In general, employers have been found to view older workers as less productive, having less

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relevant skills, resistant to change and technology and less trainable, and more prone to absenteeism and ill health (Loretto, Duncan and White 2000: 283). These findings are illustrated by the comments of this middle-aged woman who qualified as a solicitor at age 49 and started looking for a position in a law firm: I have been informed by my referees that when I have applied for jobs and telephone contact has been made with them from prospective employers, the constant query has been about my ability to cope at MY AGE! One even apparently asked a referee ‘How much will we get out of her given her age?’ To which my referee was appalled and gave them a suitable reply, reminding them I was 49 not 89. (Woman aged 49)

Things are complex for older women: Maguire (1995: 563–564) recalls that an older, more experienced woman is likely to be perceived as a threat to the existing gender power relations, all the more as women are often expected to take secondary roles and assist men. Moreover, in vertically stratified, predominantly male-managed occupations, a young woman may well be the ‘ideal-type’ employee, because her physical appearance will appeal to the selection panel, and because she will be perceived as someone who can be moulded, will take orders and will not make alternative suggestions. The culture of corporate law firms, which favours early retirement, makes it even harder for mature entrants to be hired. An article published by Legal Week in September 2007 summarised the situation in these terms: According to the latest Legal Week/EJ Legal Big Question survey, 72 per cent of respondents think new-look age discrimination laws have ‘very little’ (33 per cent) or ‘no’ compatibility (39 per cent) with the economic realities of the partnership model of large firms, which sees commercial law firm partners retire in their 50s. (Ruckin 2007: 1)

A last-resort option for the most committed, evoked by some women in the correspondence, is to set up their own small firm and employ a qualified solicitor who will give them training (at least administratively speaking) so that they can qualify. That some mature women actually consider this as an option is in itself very telling, as this solution implies they are willing to take up a heavy burden of administrative responsibilities that will have to be juggled with learning to do the job; besides it requires an investment in time and money that can only be afforded by a small proportion of mature entrants. This section questioned the compatibility of the culture of law firms and the recruitment of female mature candidates, and suggested that legislation on age may not have the impact that was expected: the next section examines this in more depth.

Impact of the Legislation and Future Developments Implications of the Regulations It was not until the EU Employment Directive 2000 that the UK began to move towards introducing a law to prevent age discrimination in the workplace, whereas in the US

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for instance, legislation to outlaw age discrimination at work came into force as far back as 1967. The Government decided to take the full six years allowed to implement EU legislation into national law, due to the ‘complex and sensitive’ nature of the issue (Tromans 2005). The Employment Equality (Age) Regulations 2006 that implement the age strand of Directive 2000/78 EC came into force on 1 October 2006 (these Regulations do not extend to Northern Ireland). They cover:

• direct and indirect discrimination; • harassment; and • victimisation. There are some exceptions if there is ‘objective justification’ but real evidence is needed to support such a claim, which cannot rely on mere allegations. The Regulations apply to everyone in employment or vocational training; when the relevant sections of the Equality Act 2010 come into force (expected April 2012), age discrimination will also be outlawed outside the workplace,7 which is an important shift. For law firms, employment and vocational training include:

• • • • •

contract and agency workers; office holders; barristers; partners; and existing, prospective and former employees. (Law Society 2006)

Regarding trainees, law firms have to ensure support is not geared towards younger trainees, and in terms of recruitment, they have to pay attention to the wording of advertisements and avoid terms such as ‘young’, ‘dynamic’ or ‘modern’, but also ‘mature’, ‘experienced’ or ‘senior’. A survey of in-house lawyers8 across the UK (Tromans 2005) was carried out 18 months prior to the enactment of the Regulations. Its findings raise doubts about the impact of the legislation and its capacity to reduce ageism in the legal profession. It found:

• 93 per cent of respondents said age-based discrimination was not an issue in their company;

• 75 per cent had not conducted an age-based review of their employment policies, despite the impending and potentially damaging consequences of the new law and their awareness of reputational damage caused by losing an employment tribunal over discrimination; • 26 per cent believed that the main problems they would experience from the new legislation would be retirement related; and • 57 per cent could not clearly identify how the new law would affect them. 7 Extension of the prohibition to services and public functions. See Equality Act 2010, Part 3. There is a lower limit as concerns public functions (people under 18 are not included; clause 28) and there are exceptions that relate to age protection outside the workplace (clause 197). 8 Lawyers who are not working within a law firm but for a company, a bank or a local authority. The survey concerned more particularly corporate counsel, that is, did not include lawyers working for local authorities.

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Although the survey was conducted with in-house lawyers, similar results were obtained in a survey of law firms carried out in 2007 (after the enactment of the legislation) (Ruckin 2007). This revealed that almost three quarters of the UK’s most senior lawyers believe age discrimination laws cannot be a success, given the rigid employment regime of commercial law firms, which favours retirement of partners at a younger age; just three per cent believe the new laws has prompted firms to sharpen up their act. In an attempt to analyse the impact of the new legislation one year after its introduction, The Lawyer noted that even if age discrimination cases have not made the news very often, the number of claims is quite high: From a standing start, around 2,000 tribunal claims were filed in the first year. This is around six times as many claims as were made in the first year that UK religious discrimination laws were introduced. […] the sheer weight of applications being made means that as time goes on, news about ageist claims will become far more common. (Feinstein and Turner 2007)

These figures are not surprising, as in the Republic of Ireland, for instance, allegations of ageism now amount to 19 per cent of Ireland’s formal discrimination claims (Law Society 2006: 3). The Trainee Solicitors Group also states that it is likely that age discrimination laws will rapidly become a major source of discrimination claims in the workplace, which is confirmed by many observers, in the light of the number of claims already filed, combined with the ageing population. If such a flood of age discrimination claims threatens employers (who, we have seen, do not seem to respect or fear the new legislation exceedingly), questions may be raised about the rhetoric intended to further the recruitment of mature/older applicants, and ensure that businesses find an incentive for hiring them.

Selling Age Diversity for Recruitment Purposes A business case has been put forward in order to show that recruiting people of all ages is good for businesses. For instance, Age Positive9 asserts that widening the net to potential candidates of all ages directly helps to minimise recruitment costs, and to take full advantage of the skills brought by people of all ages, in particular the skills and ideas learnt in previous employment or related careers (Age Positive 2007: 2). The Government also emphasises that ‘a dynamic economy can only be achieved by giving everyone an equal chance to develop their skills and maximise their employment potential’.10 The business case rhetoric has also been adopted by the Law Society (2006: 4), which enumerates a list of benefits deriving from beating ageism, namely:

• lowering recruitment, training and turnover costs; • increasing the pool of candidates for vacancies;

9 Age Positive is a government agency that is responsible for strategy and policies to support people making decisions about working and retirement. The Age Positive campaign promotes the benefits of employing a mixed-age workforce that includes older and younger people. 10

DTI, Age discrimination fact sheet No 4 – ‘Vocational training’, March 2006.

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• improving staff retention rates, productivity and staff motivation and morale; and • getting the best person for the job. The Law Society sheds light on the example of Morgan Cole, one of the UK’s top law firms that has been named an Age Positive Champion; the firm employs both younger trainees and older trainees who join the profession after careers in other industries and says that diversity brings value to the firm, and in turn value to their clients (Law Society 2006: 6), which is an important incentive in the legal profession. The risks and limitations of the business case have been demonstrated, in particular for sex equality. McGlynn (2003b) stresses that it is a wholly misconceived campaign, on the grounds that equality should never be reduced to a by-product of the improving economic efficiency of firms. It may be argued that there is substantial evidence for the business case for age diversity in the light of demographics, as by 2026 in the UK, half of all those aged 16 and over will be over 50 (Law Society, 2006: 3) (see also WinkelmannGleed, Chapter 15). Nevertheless, it remains that the business case theory has the potential to dismantle any advance secured for diversity, as it is open to constant change and may prove particularly fragile in times of economic recession. In spite of the double-edged dimension of the business case, economic arguments and clients’ demands are often the engine for change as far as law firms are concerned. Thus, in order to mitigate both justifications for age diversity, Kevin Martin, the then President of the Law Society, said in 2006 that: Behaviour that discriminates on any grounds is inconsistent with the core values of solicitors, but managing diversity is also about gaining a competitive advantage in the market place, and recruiting and retaining good people makes sound business sense. (Law Society 2006: 6)

The actual experiences of women, as illustrated by the many examples in this chapter, are often in sharp contrast to this assertion from the Law Society, as the treatment they face is indeed ‘inconsistent with the core values of solicitors’. It also appears that many employers are yet to be convinced of the business benefits of employing older workers: I think the Age Discrimination Act, many people had unrealistic hopes for it. Maybe it’s going to stop firms automatically firing people too early, but I don’t think it can do anything to re-educate people about the value of older people in the workforce, taking them on. (Woman aged 54)

Whether or not the business case is successful in promoting the recruitment of mature candidates, and however doubtful the ethical assumptions of such arguments, discriminating against applicants on the grounds of age has been illegal in the UK since 2006. In spite of the coming into force of the Regulations, mature candidates still have to overcome many stereotypical assumptions about older age. The last section consequently tries to assess the strengths and shortcomings of the legislation, and whether or not the Equality Act 2010 is likely to introduce fruitful developments in the fight against ageism.

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Effectiveness of the Legislation There is no doubt that introducing legislation on age discrimination was necessary, as many had pointed out prior to its enactment. Hepple (2003: 71) insisted on the fact that the implementation of the legislation against age discrimination should not be seen as another burden imposed by the European Union, for two main reasons: 1. Action against age discrimination is an appropriate and necessary aspect of UK

employment policy; and 2. such action cannot rely solely on a voluntary code and other promotional measures,

but must be supported by an effective, efficient and equitable regulatory framework. One of the most positive aspects of the 2006 Age Regulations seems to be the fact that they provide a blanket coverage irrespective of age. This was one of the aspects that was insisted on by Loretto, Duncan and White (2000: 285–286), based on the experience of a significant number of undergraduate students in their study who perceived themselves as having encountered age discrimination in employment. They see several advantages to this approach, notably that it would address the diverse patterns of age discrimination, that it would be coherent with current developments in equal opportunities, and that it promotes the understanding of ageism as an ideology that affects us all whether as perpetrators, victims, or both. It is all the more important for women that the legislation offers protection irrespective of age, and not only to a definite age group (such as 50+ for instance), as research has shown that women are considered to be old at a younger age than men (Taylor and Walker 1998: 655). It is also noteworthy that the legislation affects both the public sector and the private sector. The public sector, as noted by the Trainee Solicitors Group and by interviewees, operates recruitment methods that seem fairer, and appear to be more committed to age diversity than the private sector. This may give cause for optimism, as public sector clients will require their suppliers, including solicitors, to take appropriate steps in order to meet their standards in terms of equality and diversity (Law Society 2006: 5). Public authorities need to ensure that works, goods or services provided through procurement are delivered in a way that takes account of the relevant content of the authority’s equality duties, which has a ‘rebound’ effect on the private sector. However, the Directive and the Regulations that implement it were based only on negative prohibitions against direct and indirect discrimination, rather than a positive duty to promote equality (Hepple 2003: 80). Such duties were introduced in relation to race (2001), disability (2006) and gender (2007), placing a legal responsibility on public authorities to have due regard to the need to eliminate unlawful discrimination. One of the new aspects of the Equality Act 2010 is the extension of the public sector duty to all the relevant protected characteristics (clause 149), including age. The equality duty, expected to come into force in April 2011, will thus require employers in the public sector to also ensure the promotion of age diversity and equality. Some had also pointed out that if the legislation is formally gender-neutral but in fact preoccupied with its impact upon older men, it is inevitably defective (Duncan and Loretto 2004: 111). Unfortunately, the Regulations seem to have been crafted along that apparent but artificial gender-neutrality. Indeed, there are no specific provisions for women, except in Regulation 32 (Exception for provision of certain benefits based

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on length of service). The Regulations are therefore an example of formal equality, as opposed to substantive equality: as is underlined by Phillips, treating people equally does not necessarily mean treating them identically (Phillips 1999: 22–30). As academics have demonstrated the complex interaction between female gender and age, it becomes apparent that the formal equality offered by the Regulations cannot protect women adequately from ageist behaviour.

Conclusion Ageism is a pressing societal issue, which is not restricted to the legal profession, as the population over age 50 will soon represent a large segment of the working population in European countries. Although this chapter only focused on solicitors within the legal profession in England and Wales, mature applicants seem to face the same situation as barristers when they try to obtain pupillage, as was reported by several interviewees. The analysis presented here is no more than a case study, and the conclusions that may be drawn from it are not meant to apply to other industries, particularly as the legal profession is quite specific in the way it is organised, with a heritage as a closed and patriarchal occupation. Nonetheless, studying ageism in the context of law firms is an opportunity to look more closely at the legislation against age discrimination, its virtues and its limitations. What is more, looking at mature female entrants to the profession highlights one of the facets of intersectionality, and helps demonstrate that the recognition of multiple discrimination is an imperative if equality legislation is meant to offer good protection against discriminatory beliefs and attitudes. Such an issue is particularly prominent with regards to the Equality Act 2010, which encompasses the Age Regulations as well as the majority of domestic equality legislation, with the intention of harmonising discrimination law. Although the Equality and Human Right Commission, launched in October 2007, is meant to provide a platform for addressing issues of multiple discrimination, it is regrettable that the approach to multiple discrimination adopted by the Equality Act is restricted to dual discrimination (clause 14). The concerns raised by academic commentators on the inadequate legislative protection for people experiencing multiple discrimination had been taken into account at consultation stage, but it was finally considered that allowing fully combined multiple claims would overcomplicate the law and place additional burdens on both the private and public sectors, which may be unjustified: ‘we do not have any evidence that in practice people are losing or failing to bring cases because they involve more than one protected ground’ (Discrimination Law Review 2007: 123). This reticence is further justified in the explanations published by the Government Equalities Office (GEO, 2009: 2–3). As was demonstrated in the first section, age and gender interact in ways that produce very complex patterns. There is no denying that the intersection of these two characteristics will be taken into account by the new legislation, which is a major step forward. However, it remains that rejecting the necessity for multiple claims is bound to weaken the protection offered by anti-discrimination legislation in the long run, notably insofar as it forces victims of discrimination to fragment their experience and identity.

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References Adib, A. and Guerrier, Y. (2003). The interlocking of gender with nationality, race, ethnicity and class: the narratives of women in hotel work. Gender, Work and Organization, 10:4, 413–432. Age Positive (Department for Work and Pensions) (June 2007). Recruitment: Age Positive Guide. Arber, S., Anderson, L. and Hoff, A. (2007). Changing approaches to gender and ageing. Current Sociology, 55:2, 147–153. Cole, B., Law Society Strategic Research Unit (2007). Trends in the Solicitors’ Profession. Annual statistical report 2007. Available at: http://www.lawsociety.org.uk/aboutlawsociety/whatwedo/ researchandtrends/statisticalreport.law [accessed 28 October 2008]. Discrimination Law Review (June 2007). ‘A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain’. Consultation Paper. Available at: http://www.communities.gov.uk/ publications/communities/frameworkforfairnessconsultation. Duncan, C. and Loretto, W. (2004). Never the right age? Gender and age-based discrimination in employment. Gender, Work and Organization, 11:1, 95–115. Department for Trade and Industry (DTI)(2006). Employment Equality (Age) Regulations 2006, Notes on Regulations. Available at: http://www.berr.gov.uk/files/file27136.pdf [accessed 5 February 2009] Farrar, J. (2003). Open University Law Society tackles age discrimination. The Lawyer. Available at: http://www.thelawyer.com/cgi-bin/item.cgi?id=115257 [accessed 28 October 2008]. Feinstein, N. and Turner, A. (2007). Age concern. The Lawyer. Available at: http://www.thelawyer. com/cgi-bin/item.cgi?id=129675 [accessed 28 October 2008]. Fredman, S. and Spencer, S. (2003). Age as an Equality Issue, Oxford: Hart Publishing. GEO (2009). Explaining the Equality Bill: Dual Discrimination. Government Equalities Office. Available at: http://www.equalities.gov.uk/equality_bill/explaining_the_equality_bill.aspx [accessed 6 May 2010]. —— (2008). Framework for a Fairer Future: The Equality Bill. Available at: http://www.equalities.gov. uk/equality_bill.aspx [accessed 10 March 2009]. Grant, D. et al., (2006). Gender Discrimination and Ageist Perceptions: Final Report 2006. Executive summary available at: http://www.ljmu.ac.uk/GDAP/index.htm [accessed 29 October 2008]. Hepple, B. (2003). ‘Age Discrimination in Employment: Implementing the Framework Directive 2000/78/EC’, in Fredman S. and Spencer S. (eds). Age as an Equality Issue, Oxford: Hart Publishing, pp. 71–115. Hopkins, P. and Pain, R. (2007). Geographies of age: thinking relationally. Area, 39:3, 287–294. Jordan-Zachery, J.S. (2007). Am I a black woman or a woman who is black? A few thoughts on the meaning of intersectionality. Politics & Gender, 3:2, 254–263. Krekula, C. (2007). The intersection of age and gender. Current Sociology, 55:2, 155–171. Law Society, (2006). ‘Be ready’, Practical Information on Age Issues for Solicitors. Available at http://www. lawsociety.org.uk/documents/downloads/dynamic/beready_agediscrimination.pdf [accessed 28 October 2008]. Loretto, W., Duncan C. and White P.J. (2000). Ageism and employment: Controversies, ambiguities and younger people’s perceptions. Ageing and Society, 20, 279–302. Maguire, M. (1995). Women, age and education in the United Kingdom. Women’s Studies International Forum, 18:5, 559–571. McGlynn, C. (2003a). ‘The Status of Women Lawyers in the United Kingdom’, in Schultz, U. and Shaw, G. (eds). Women in the World’s Legal Professions, Oxford: Hart Publishing, pp. 139–158.

A g e i s m , S o l i c i t o r s a n d F e m a l e M a t u r e E n t r a n t s 233 —— (2003b). ‘Strategies for Reforming the English Solicitors’ Profession: An Analysis of the Business Case for Sex Equality’, In Schultz, U. and Shaw, G. (eds). Women in the World’s Legal Professions, Oxford: Hart Publishing, pp. 159–174. Moore, S. (2007). Age as a factor defining older women’s experience of labour market participation in the UK. Industrial Law Journal, 36:3, 383–387. Phillips, A. (1999). Which Equalities Matter?, Cambridge: Polity Press. Ruckin, C. (2007). Age discrimination laws incompatible with law firm employment regimes. Legal Week. Available at: http://www.legalweek.com/legal-week/news/1182044/age-discriminationlaws-incompatible-law-firm-employment-regimes [accessed 23 June 2009]. Taylor, P. and Walker, A. (1998). Employers and older workers: attitudes and employment practices. Ageing and Society, 18:6, 641–658. Tromans, R (2005). Key findings: Age concern, Legal Week. Available at: http://www.legalweek.com/ Articles/124987/Key+findings+Age+concern.html [accessed 1 March 2011]. Webley, L. and Duff, L. (2007). Women solicitors as a barometer for problems within the legal profession – time to put values before profit? Journal of Law and Society, 34:3, 374–402. Wyn, J. and White, R. (1997). Rethinking Youth, London: Sage.

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chapter

17 The ‘Duty to Consider’:

How Employers are Managing Requests from Employees to Delay Retirement MATT FLYNN

Introduction In October 2006, the government introduced employment regulations prohibiting age discrimination in the workplace. The Employment Equality (Age) Regulations (EE(A)R) 2006 (SI 2006/1031) (hereafter referred to as the Age Regulations) cover a range of workplace issues including pay, benefits, recruitment and redundancy; and were written to ensure that workers are not treated less favourably as a result of age. While drafting the Age Regulations, one of the most hotly contested issues which the then-Department of Trade and Industry (DTI) (now the Department for Business, Innovation, and Skills (BIS)) faced was how to regulate mandatory retirement. Prior to the regulations coming into effect, employers were largely free to choose at what age mandatory retirement would be set. During the period of consultation, the Chartered Institute of Personnel and Development (CIPD) and Trades Union Congress (TUC) led a campaign to abolish mandatory retirement ages completely – in other words, to restrict employers to dismissing individuals only for reasons such as performance, conduct or redundancy. The employers’ group, the Confederation of British Industry (CBI), on the other hand, campaigned strongly to retain mandatory retirement, seeing this aspect of human resources (HR) policy as critical for employers’ ability to manage workforce planning. In the end, the then-Labour Government opted to set a ‘default retirement age’ of 65. An employer can lawfully dismiss an employee at the age of 65 without having to justify the decision to dismiss. An employer can also set a retirement age below 65, but would face what the government has called a ‘tough test’ (Age Positive Campaign 2006) for objectively justifying the lower retirement age. Although employers are allowed to compulsorily retire employees at 65 (or in some cases even younger), the Age Regulations do impose a ‘duty to consider’ (DTI 2005, para. 1.10) requests to delay retirement. So long as the employer follows the procedure set out in the Age Regulations for informing and

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consulting the employee on the decision to retire, it can compulsorily retire the employee without needing to justify its decision. At the time, the Government stated that it ‘wants to move away from a culture that retires people without regard to the contribution that they can still make to the labour market’ (DTI 2005, para. 6.3.1). In framing the ‘duty to consider’ requests to delay retirement, the Government aimed to give employers considerable flexibility in choosing whether to retire or retain employees after 65. The ‘light touch’ (DTI 2005 para. 6.3.3) approach taken in the Age Regulations was intended to ‘change the retirement culture in this country.’ (DTI 2005, 4). The ‘duty to consider’ is consistent with a ‘business case’ approach towards equality which encourages employers to extend older workers’ working lives. Retaining older workers is posited as having business advantages for employers in addressing skills and labour shortages, enabling flexibility in workforce planning and retaining organisational tacit knowledge (Bunt et al. 2005; Reilly et al. 2007). However, the approach has been criticised for coupling equality goals with unrelated values (Duncan 2003; Forbes 1996); and putting equal opportunity public policy at the mercy of short-term market conditions (Colling 1997; The Wainwright Trust 1997). The Government’s hope seemed to be that business pressures, rather than legislation alone, would compel businesses to allow workers to stay economically active beyond 65. The regulations are largely non-prescriptive in terms of how employers should consider requests to delay retirements. Factors it should take into consideration are; how an extension of work should be organised; what reasons should be used to reject a request; or even whether an employee should be informed of the reasons behind a refusal. Although the Government at the time wanted to change workplace culture in terms of how employers see older workers, there is very little regulation which would compel them to do so (Flynn 2010). When the 2006 Age Regulations were drafted, the Government pledged to review the default retirement age by 2011. The review was subsequently brought forward a year, but had not reached its conclusion at the time of the May 2010 general election. At the time of writing, it is unclear whether the Conservative–Liberal Democrat coalition government will abolish mandatory retirement. The Conservative manifesto for the 2010 election pledged to ‘look for ways how to abolish the default retirement age’, a rather ambiguous statement which commits to abolition but not to timing. In this chapter, employer practices with regards to managing requests from employees to delay retirement are discussed. It is based on two sources of information. First, in 2008, a series of interviews was conducted with representatives of national organisations which have either been consulted on or have been involved in implementing the Age Regulations.1 Respondents were asked to discuss their views on the impact of the ‘duty to consider’ on the management of retirement and how employers could make best use of this provision of the age regulations. Second, in 2007, as part of a study conducted for the Department for Work and Pensions (DWP) (McNair et al. 2007), 70 interviews were conducted with managers from ten industrial sectors, covering senior and line managers and Human Resources (HR) levels of organisations. During the interviews, managers were 1 Interviews were held with the Department for Work and Pensions (DWP); the Advisory, Conciliation, and Arbitration Service (Acas); employer and management organisations: the Employers’ Forum on Age (EFA); the Confederation of Business and Industry (CBI); the Chartered Institute of Personnel and Development(CIPD); trade unions, the Trades Union Congress(TUC); advocacy groups on age, Age Concern England (ACE) and The Age and Employment Network(TAEN).

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asked to discuss their employers’ policies and practices in regard to managing retirements. Managers were asked to discuss how requests to delay retirement are managed in their organisations, what factors are taken into consideration when considering requests, who makes the decision on whether to accede to a request, and under what kinds of circumstances are older employees permitted to delay retirement. The Government announced in 2009 that it would review the default retirement age with a view to abolishing it. It had originally planned to review it in 2011, but brought the date forward for political and economic reasons (HMG 2009). Recent Labour Force Survey statistics suggest that, despite the current recession, the post-65 workforce has moderately increased, which may have led Whitehall to conclude that employers are less averse to employing people over 65 than initially thought. The chapter has two objectives: 1. To discuss the ‘current state of play’ with regards to managing retirement. 2. To identify innovative approaches some employers are taking to enable older workers

to stay economically active longer. There is scant evidence of the change in retirement culture which the Government sought. For the most part, employers are continuing to use mostly informal processes to manage requests from employees to delay retirement. However, managers seem to be amenable to allowing older workers to continue past normal retirement age, and have found business advantages in doing so, such as retaining company-based knowledge. A minority of employers have developed novel approaches to managing the retirement process.

National Stakeholders’ Perspectives The national debate over whether or not the Government should have outlawed mandatory retirement has spilled over into a new dialogue about the effectiveness of the Government’s compromise. According to the CBI, the default retirement age, coupled with the duty to consider requests from older employees to continue working, has enabled employers to find ways to help those employees who want to delay retirement to do so, while retiring the majority ‘with dignity rather than dispute’ (CBI 2003). According to the CBI interviewee, employers are open to retaining older workers, and are doing so even though they have the ability to dismiss at 65. Why would you [an employer] want to get [young graduates] in when you could have older workers who have worked with you or with another company for many years who know what they are up to and have the expertise who are also very hard to sack because they are very costly, particularly if they are on the old staff and final salary schemes, very, very hard to get rid of.

The TUC, on the other hand, has argued that the regulations are having a negligible effect on employer behaviour since employers have free reign in deciding whether or not to retain employees who are 65 and older. It is really just a process that you go through … If an employer’s decided they want someone to retire they won’t take that process seriously because they don’t need to.

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Others noted that the ‘duty to consider’ may, perversely, be persuading employers to make retirement delays more difficult for older employees. The CIPD respondent, for example, observed a ‘fear factor’ which is compelling small firms which hitherto had no retirement ages, to apply the default retirement age to their workforces. An interviewee from the DWP observed that some employers are enforcing a blanket policy of rejecting requests. Some [firms] are actually bringing in this default age as a new retirement age because they are concerned that if they don’t have anything in, there is going to be an issue later on or they are going to fall foul of having one person accepted or continuing working and letting another one go … So, instead of doing that they will just get rid of everybody at 65.

Both the Advisory, Conciliation and Arbitration Services (Acas) and Age Concern England (ACE) interviewees pointed to the right to appeal which offers limited recourse for employees dissatisfied with the outcome of discussions with their managers. Under the Age Regulations, employees whose requests are denied have the right to appeal the decision. However, while the employer has a duty to inform the employee of the outcome of a discussion of the request, it is not obliged to provide the reasons behind the decision. The Acas respondent argued that discussing with employees why their requests had been denied is good employer practice, but managers are reluctant to do so for fear of ‘saying something stupid’ which could find them falling foul of employment law. Despite the shortcomings of the regulations, interviewees did identify some ‘business case’ reasons why employers are considering retaining employees beyond 65. The CBI found from its survey of members that employers can be persuaded to retain staff who have ‘unique skills and company knowledge’. The CIPD interviewee felt that legal compliance was the strongest motivating factor. Employers’ Forum on Age (EFA) respondents noted that some, mainly large, employers are recognising that changing age demographics mean fewer younger workers will be available long term, and labour demands necessitate policies for retaining older ones. If you don’t have enough people who are doing the job and the demographics mean that you don’t have any other choice, then eventually it will level itself out […] the economy and everything will balance itself out somehow without probably any intervention.

Larger organisations were thought to be more ‘age aware’ than most because, unlike small employers, they have HR departments which can identify long-term labour market issues and have a diversity brief. On the other hand, the DWP respondent felt small employers are more likely than larger ones to implicitly manage in an age-neutral manner. In smaller companies the strange or surprising thing is that we find that age is usually not as big an issue as it is in the larger companies. In the small companies, usually 20 and below, they will go on the capability of the individual to do the job rather than the actual age of the individual.

Finally, the Acas representative noted that many employers, particularly in the retail sector, are finding that older employees can redress labour shortages. It was argued, however, that this could limit older workers into under-employment.

T h e ‘ D u t y t o C o n s i d e r ’ : R e q u e s t s t o D e l a y R e t i r e m e n t 239 Basically it seems that these organisations are almost offering them muck jobs, if you know what I mean. We employ these people over 65 but they are not in management positions or whatever … I’d like to see whether those individuals were offered a chance for promotion, development and so forth, and maybe they don’t want it which in this case is fine. It would be … wrong if some organisations are held up as exemplars merely because they became employers of older workers in rather poor, unskilled jobs.

Discussions with national stakeholders revealed a few key perspectives on the duty to consider. First, there is a consensus that employers can be convinced of the business reasons for allowing employees to delay retirement. However, reasons tend to be found on a case-by-case basis rather than systematically. As a result, individual managers’ practices are driving decisions rather than organisational policies. Second, the Age Regulations themselves seem to be having a limited, and perhaps even regressive, impact on employers’ practices. Although the post-65 workforce has increased, this seems to reflect more on employers’ resistance to recruiting and training new employees than retaining older ones. Advocates for abolishing mandatory retirement age fear the duty to consider is, to quote the TUC informant, ‘too fiddly’ and hard-pressed managers are more likely now than before to retire everyone than run the risk of breaching the law. Given these perspectives, it is now worth exploring employer practices. The next section will focus on four questions: 1. What impact are the age regulations having on employer practices? 2. Are employers willing to allow people to work beyond 65, and what is convincing

them to do so? 3. How are managers handling requests from employees to delay retirement? and 4. Are there examples of good practice in use of ‘the duty to consider’ which can benefit

other employers?

Employer Practices National stakeholders identified a number of issues surrounding the approach which the Government has taken in regulating mandatory retirement. In particular, there is a growing debate over whether the regulations are making employers more or less likely to allow employees to delay retirement. In this section, the employers’ perspectives will be heard.

What Impact are the Age Regulations Having on Employer Practices? Perhaps the biggest question about the ‘duty to consider’ is whether it is changing the way in which employers manage retirement. It is important to remember that, in drafting this part of the law, the Government aimed not to just influence retirement practices at the margins, but to change ‘culture that retires people without regard to the contribution’. As noted above, respondents from Acas, TUC and TAEN, fear that the regulations may have changed retirement practices for the worse. In other words, employers who would have, in the past, considered requests from employees to delay retirement now no longer do so.

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There are two countervailing theories of how employers should behave as a result of the law. On the one hand, the Government rests its policies on the business case approach to employment regulation: the theory that by being compelled to consider requests from employees to delay retirement, employers will see the benefits of allowing them to stay economically active. Critics, on the other hand, argue that employers rarely react to new employment law in the ‘business case’ ideal. Rather, when confronted with a new law, organisations will take measures to preserve established practices (Laughlin 1991). Because the ‘duty to consider’ is a ‘light touch’ approach to regulation, employers will use their latitude to maintain the way they handle retirement. There are some signs to support the critics’ viewpoint. In 2005, prior to the regulations coming into effect, the DWP conducted a large survey of employers (Metcalf and Meadows 2006). It found that only 37 per cent of employers set mandatory retirement ages, and only seven per cent of organisations strictly enforced such policies. However, of the 70 employers who were interviewed after the regulations came into effect, nearly all (66) said that they had mandatory retirement ages, with the majority setting them at 65. Some employers, particularly smaller ones, were under the misconception that the regulations require employers to set mandatory retirement ages, while others felt that using the mandatory retirement age is the safest option. A trade association representing small employers, for example, advised its members which had hitherto lacked retirement policies, to set mandatory retirement ages: What we are recommending now is [that] they have a proper age and retirement policy. It should be the national 65 and that is when you retire, but now we have had to advise them that they must have a proper retirement policy.

While this might suggest regression in terms of policy, employer practices may not have changed so much. Most employers said that, while they have retirement policies, they are willing to consider retaining employees beyond 65. For example, when asked whether his workplace has a mandatory retirement age, one employer said: Technically the answer is ‘yes at the moment’ but we have been receptive to requests for people to carry on working beyond 65.

By contrast, an employer which did not have a mandatory retirement age prior to the regulations indicated that his practice was to compulsorily retire employees: Before, we would have not given it [retirement] consideration ... We are thinking now of changing that to make it compulsory retirement because of failing capability ... physically and mentally.

If retirement policies are the benchmark of the success of the Government’s efforts to change the retirement culture, it would seem that the ‘duty to consider’ and default retirement age are having either a neutral or negative effect. In the next section, the impact of the regulations on employer practices will be discussed.

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Are Employers Willing to Allow Workers to Delay Retirement? Most managers who were interviewed said that they would be willing to consider requests from employees to delay retirement, but only in cases in which there is an organisational need. In some organisations where flexible working was routine, it was noted that the assumption of managers would normally be that the employee would be allowed to remain in work, as this manager in a social care home said: Most care workers are working flexibly, so if someone wanted to stay, but work less, we can usually accommodate them.

For most respondents, however, business need is paramount when deciding whether to allow employees to delay retirement, reflected in the comments of a manager from a business consultancy: … as long as it fits in with the needs of the business, we are perfectly prepared to be flexible with people.

For some managers, the issue of business need focused on labour shortages for specific occupations. Such jobs, however, tended to be low-skilled ones which were hard to fill. One respondent at a local school said: We do have a lot of people [working past the age of 65], particularly in areas where in the past we had difficulty recruiting, things like cleaners.

Another manager discussed his property management company’s use of older labour to fill posts with undesirable working hours. We have a requirement to get post on people’s desks by 9:30 in the morning. This means at the moment that we have to employ people for two or three hours in the morning…. This work has proven attractive to people who have retired.

An interesting example of a firm using older workers to fill vacancies was found in a department store. The HR manager had previously worked for the store’s downtown rival, and was aware that his former employer had a mandatory retirement age of 65. When he had vacancies to fill, the manager would telephone former subordinates who had formally retired, and ask them to work for his new employer! Some managers discussed tacit knowledge retention as an important factor which is taken into consideration. A small firm owner, for example, talked about his experience of having key employees retire and losing important skills. He expressed regret for overlooking opportunities to persuade them to delay retirement. If this company were larger, we would regret losing this amount of skill.

An HR manager for a construction firm said work experience was important to his firm. He noted that many of the basic skills needed in the construction industry are ‘pretty much the same since the Roman viaducts were built’. Therefore, older workers’

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potential for passing knowledge on to younger colleagues is highly valued. Both his firm and another large construction firm used post-65 year old employees’ skills in training apprentices. A manager in a large manufacturer noted her employer had changed its pension rules to make it easier for employees to stay in work after formally retiring and drawing a pension. The company had found that employees had to be brought back from retirement as consultants which the firm found to be economically inefficient. As the Acas interviewee suggested, some employers are using the post-65 workforce as a source of labour to meet hard-to-fill vacancies or, as the CBI interviewee noted, to retain skilled workers. However, some employers also see the ‘duty to consider’ as an opportunity to retain skills and experience, at least for a fixed period of time during which knowledge can be passed from older to younger workers. This would suggest that an employee’s success in persuading her employer to delay her retirement would depend to a great extent on her human capital. Firm-specific knowledge (Maxwell and D’Amico 1986) is particularly valuable to employers, especially in high-skilled industry. Knowledge retention and hard-to-fill vacancies seem to be the two pillars on which the business case rests.

How are Managers Handling Requests? Having now considered in what circumstances employers would consider requests from employees to delay retirement, it is now worth exploring how such decisions are made. In most cases where requests had been considered, the process is informal, and usually handled by the employee’s immediate line manager. Some small business owners said that their practice, prior to the regulations coming in, was to automatically allow employees to continue working. One personnel manager, for example, noted that while preparing for the Age Regulations to come into effect, she was surprised to find three members of staff who were over 65. Another said that his organisation had a practice of letting people ‘carry on’, but that the regulations now compel the organisation to formally go through the retirement process. He felt that this change in policy was beneficial to both the organisation and the employee since it forces a conversation about how work routine could be modified to help the employee stay active longer: In the past, I think if nobody gave them a clock at 65, I think they just carried on really. So, we are probably very lax in not formally saying ‘you are now working beyond retirement age which is why I have got to do something’.

In most cases, both prior to and after the Age Regulations came into effect, responsibility for deciding whether an employee could delay retirement was given to her or his immediate line manager. Respondents, particularly at the HR level, described line managers as being best disposed towards assessing the individual worker’s performance and the local labour demands. None of the respondents described a process which did not include line managers, although in some cases, especially in large organisations, more senior managers also had an input. In one organisation, for example, the chief executive would need to sign off any extension of employment contract because requests to delay retirement were unusual.

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Since the Age Regulations came into effect, many respondents said that their employers’ policies on considering requests had become more formalised: Before [the Age Regulations], there wasn’t the process in place that there is now … it wasn’t a formalised process, whereas now it is formalised and it is communicated.

A manager of a small firm similarly noted: I think with being a small business or relatively small business … you tend to be more informal on some of your policies and the tendency is only to have formal policies where maybe it makes sense to or legislation states that you have got to have it.

The regulations could be seen, therefore, as a catalyst for formalisation of retirement processes, especially within small organisations. Employers may be acting in a risk-averse way to retain their ability to retire employees at or around 65. However, there is some evidence that the formalisation of policies is clarifying the rights of employees to ask to stay in work, and the duty on managers to consider such requests. In most workplaces, line managers play the dominant role in considering requests from employees to delay retirement. Formalisation of processes ensures that line managers are aware of the obligation on them to inform employees of the firm’s plans to retire them; discuss with them retirement options; and ensure the process is within the timeframe prescribed by law. While processes may be becoming more formalised, only a few HR departments are providing line managers with guidance on how to help older workers stay employed longer. In the last section, the innovative practice of two organisations will be discussed.

Are Employers Making Good Use of the ‘Duty to Consider’? As can be seen through responses both from national stakeholders and employers, the ‘duty to consider’ seems to be having a negligible effect on the retirement culture. Most employers appear to be maintaining retirement systems which leave such decisions to the discretion of line managers. However, there are a few organisations which are adapting their practices in order to enable older workers to delay retirement, two of which are discussed below. The first organisation is a small print company. Unlike many similar organisations, the couple managing this firm opted to scrap its mandatory retirement age rather than use the default retirement age. Although the Age Regulations were the catalyst for reviewing its policies, the decision to jettison the firm’s retirement age was made for personal reasons: How did we decide [to abolish retirement age]? Well, we just thought, ‘We’re not going to retire’.

The company was in the process of adopting a new personnel development system. Although aimed at up-skilling their younger employees, they found that the process of discussing career plans with older employees helped the firm manage retirements.

244 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k By talking with [older employees], we found that they didn’t necessarily want to retire, but would like to reduce their working hours … We found that we could make arrangements which were mutually beneficial.

The managers saw that the success of their approach to retirement lay in focusing not just on their older employees’ retirement plans, but also career plans. This was thought to enable employees to discuss alternatives to full retirement. A second organisation taking a proactive approach to managing retirement was a large university. Like most organisations, line managers were primarily responsible for handling requests from their staff to delay retirement. The HR department employed ‘age ambassadors’ who would advise line managers on phased retirement options. Managers don’t always know that they can offer people shorter working hours or flexible working. Our job is to lay out all the options for them.

The HR manager framed her department’s role more as monitoring than advising. She argued that best practice necessitates a consistent approach to line managers’ decisions throughout the organisation. At the time of the interview, the HR department was developing guidelines for managers on handling requests from employees. The two organisations took different approaches to managing retirement, but had a common objective of fostering options for older workers which extend beyond either carrying on with work arrangements or full retirement. Both employers recognised that older workers could be persuaded to delay retirement if work could be organised to suit their personal circumstances. However, the framework for discussing retirement, as enumerated in the Age Regulations is too constrained to allow options to emerge. Both organisations developed systems for encouraging line managers and employees to consider options.

Conclusion In adopting the ‘duty to consider’, the Labour Government took a novel approach to regulating employer practices with regard to retirement. The ‘light-touch’ approach was meant to change the retirement culture in British workplaces. Evidence from both national stakeholders and employers suggest practices are unlikely to have changed very much, if at all, as a result of the regulations. However, many employers seem open to the idea of allowing their employees to delay retirement and had, even prior to the Age Regulations, made arrangement to allow them to do so on a temporary and informal basis. Older workers who have skills or knowledge which are specific to their employers are in an especially good position to request a delay in retirement. There is some evidence that the Age Regulations have compelled employers, particularly small ones, to review and formalise their retirement processes. In some respects, for example, setting mandatory retirement ages where they had not previously existed, the outcome has been more restrictive retirement policies. In other respects, the process has become more transparent for employees and line managers who are the principal actors in the retirement process.

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The then Labour Government had pledged to review the Age Regulations by 2011 with a view to abolishing mandatory retirement completely (DTI 2005: 4). As noted above, the coalition government has also committed to abolition, although changes in the regulations may be delayed. It is not yet certain whether abolition will lead to an increase in older workers’ labour market participation. Sweden and Norway both have mandatory retirement ages of 67, and higher participation rates for people aged 65–67 than the UK (OECD 2006). If mandatory retirement does become unlawful, employers will need clear processes for not only retiring employees, but also assessing their continued employability and discussing their retirement options. As importantly, employers will need to ensure that their line managers understand and follow formal processes and avoid unlawful dismissals of older workers. In this respect, employers’ reaction to the duty to consider can be seen less as a cultural change, and more as an incremental step in the right direction.

References Age Positive Campaign (2006), Age Legislation Factsheet Number 2, London: DWP. Bunt, K., Adams, L., Carter, K. and Hopkins, I. (2005), Age Positive Business Case Studies, Sheffield: Age Positive Group. CBI (2003), CBI Response to Equality and Diversity: Age Matters, London: CBI. Colling, T. (1997), Collective Bargaining and Equal Opportunities in Europe: The Case of British Gas in the United Kingdom, Dublin: European Foundation for the Improvement of Living and Working Conditions. DTI (2005), Equality and Diversity, Coming of Age: Consultation on the Employment Equality Regulations 2006, London: DTI. Duncan, C. (2003), ‘Assessing Anti-ageism Routes to Older Worker Re-engagement’, Work, Employment and Society, 17(1), 101–120. Flynn, M. (2010), ‘The United Kingdom Government’s “Business Case” Approach to the Regulation of Retirement’, Ageing and Society, 30(4), 1–23. Forbes, I. (1996), ‘The Privatization of Sex Equality Policy’, in J. Lovenduski and P. Norris eds, Women in Politics, Oxford: Oxford University Press. HM Government (2009), Building a Society for All Ages. Office of Public Sector Information, Guildford: Surrey. Laughlin, R. (1991), ‘Environmental Disturbances and Organizational Transitions and Transformations: Some Alternative Models’, Organization Studies, 12(2), 209–232. Maxwell, N.L. and D’Amico, R.J. (1986), ‘Employment and Wage Effects of Involuntary Job Separation’, Academy of Management Review, 76, 373–377. McNair, S., Flynn, M., and Dutton, Y. (2007), Employer Responses to an Ageing Workforce: a Qualitative Study, London: Department of Work and Pensions. Metcalf, H. and Meadows, P. (2006), Survey of Employers’ Policies, Practices and Preferences Relating to Age, London: Department of Work and Pensions, p. 325. OECD (2006), Live Longer, Work Longer: Synthesis Report, Brussels: OECD. Reilly, R., Metcalf, H. and Forth, J. (2007), The Business Case for Equal Opportunities: An Econometric Investigation, Norwich: Department for Work and Pensions, The Wainwright Trust (1997), Decentralization and Devolution: The Impact on Equal Opportunities at Work, The Wainwright Trust, Ware, Herts: Standon.

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III Equality – New Approaches

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18 Measures to Tackle

Disadvantage and Discrimination in Access to Employment: The Role of Employers ANNa PaRaSKEVOpOULOU aND MONIKa BEUTEL

Introduction This chapter addresses the complex nature of discrimination and disadvantage faced by many in the UK labour market, by drawing on research that examined over 500 projects in London which prepared individuals from disadvantaged groups for entry to the labour market – the ‘3Ds London’ project (Beutel and Paraskevopoulou 2006). While other chapters in this Handbook have considered the nature of discrimination in employment or the workplace, this chapter focuses on the difficulties experienced by members of disadvantaged and discriminated social groups in accessing employment. The analysis and case studies1 undertaken as part of the ‘3Ds London’ research illustrate the complex ways in which multiple disadvantage and discrimination combine to create barriers for entry to the labour market. For example, ‘postcode discrimination’, low skills, lack of work experience, age, gender, ethnicity, disability and refugee status are all shown to be elements in how individuals face difficulties in gaining employment. However, the research found examples of good practice that show how employers and other agencies can successfully work together through targeted initiatives to improve the employment opportunities of disadvantaged groups. The ‘3Ds London’ research was carried out between 2005 and 2006 by the Working Lives Research Institute (WLRI), with funding from the then London Learning and Skills Councils (LSC) with European Social Funding (ESF). Over 500 projects in London which aimed to increase the employability of disadvantaged groups were mapped and analysed in the research. Included were projects offered by public, private and voluntary sector training and employment organisations, often involving a partnership across 1 Research methods included a survey of over 500 projects, in-depth interviews with providers, project participants and stakeholders, focus groups with project participants and employers and five case studies.

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different sectors.2 The projects included in the analysis had sought out individuals from groups that experience multiple disadvantages and discrimination in trying to access employment, and helped them to enter employment, or at least to get closer to the labour market. The projects did this through a combination of transferable skills development, vocational and general skills training and work experience. Workless people from particular social groups were targeted;3 project participants were either unemployed (in receipt of Jobseekers Allowance or other benefits), or not in the labour market. A considerable number of the participants had never been in employment, and some did not necessarily aspire to paid work. The projects analysed by ‘3Ds London’ were created with public funding and need to be seen against the background of ‘welfare-to-work’ – the approach adopted since the 1990s by governments in several Organisation for Economic Cooperation and Development (OECD) countries, including the UK (OECD 1999). After a Labour government came to power in Britain in 1997 it pursued welfare-to-work measures. Moving from benefits into paid work was not only a labour market measure but was part of the government’s strategy to combat poverty and social exclusion (Hirsch and Miller 2004). Welfare-towork became the linchpin of Labour’s social welfare reforms. Underlying it was a social and moral agenda of equality of opportunity, personal responsibility and community cohesion, the ‘third way’ (Giddens 2000). Greater economic and social opportunities, as well as a greater sense of fulfilment, would be opened up for those individuals willing to prepare for and take available work – including lone parents, disabled people and those with other disadvantages. The case study examples presented later in this chapter provide confirmation that these underlying suppositions can work well when there are incentives and when individuals are highly motivated to participate in preparation for work, rather than being compelled to do so. New Deal programmes are the UK’s main welfare-to-work initiatives. New Deal initiatives exist for groups who are under-represented in the labour market and/or are characterised by high levels of long-term unemployment.4 The programmes provide personal advisers and training; in some cases additional support measures and subsidised jobs have been put in place, in order to move individuals out of unemployment and benefit dependency and into sustainable employment. However, not all groups that are at a disadvantage in the labour market and that tend to experience discrimination when applying for jobs are covered by government initiatives such as New Deal. Therefore a multitude of other projects that target disadvantaged groups also exist, funded inter alia through European Union (EU) programmes or as pilot projects by Learning and Skills Councils (LSCs). Such projects – often offered by third

2

For details see http://www.3DsLondon.info

3 The target groups were those defined within European Social Fund Objective 3 and included: Black and minority ethnic groups (BME); refugees and asylum seekers; disabled people; 16–19 year olds not in employment, education or training (NEET); older people (aged 50 or over); lone parents; homeless people; travellers; ex-offenders; drug and alcohol misusers; people living in areas with high levels of deprivation; returners to the labour market; people made redundant; long-term unemployed 12 months+; economic migrants. 4 The main New Deal programmes are for lone parents, the disabled, young people (18–24), for adults 25+ and people over 50. New Deal programmes have been in existence since 1998. The UK government’s 2009 proposals for welfare reform move towards a system whereby everyone claiming benefits will have to prepare for employment or risk benefit cuts (with the exception of carers and those with serious disabilities), while at the same time increasing flexibility by offering a more personalised regime in the support available for employment preparation.

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sector organisations – were included in the analysis by ‘3Ds London’, alongside examples of the mainstream programmes. Members of groups experiencing multiple disadvantage and discrimination encounter many barriers to labour market participation, including those related to caring responsibilities, health or housing problems, and life-style related difficulties. Most, but by no means all, of the groups that were targeted by the projects participating in the research tended to have low basic and general skills levels, and were ill-equipped for many of the higher skills jobs that characterised the growth sectors of London’s economy. Furthermore, lack of recent (or of any) work experience was considered by project stakeholders – project providers and participants, as well as funders and employers – to be the most important factor preventing vulnerable and disadvantaged individuals from being considered for job vacancies, or from obtaining job interviews, even after they had been assisted in developing their skills and qualifications. The importance of employer engagement with the projects was therefore repeatedly emphasised by stakeholders. How the various barriers were tackled by project providers is explained more fully below in the case study examples. Debates about the skills and employment relationship and the role of employers within it have progressed since the ‘3Ds London’ analysis was published in 2006 and the landscape of institutions has changed. Some of the recommendations made in the ‘3Ds London’ report are not dissimilar to those made in evaluations of large public programmes (Hasluck and Green 2007; Hirst et al. 2005; Meadows 2006). Some of the good practice highlighted in the ‘3Ds London’ case studies and recommendations are now being addressed in the context of recent changes in the skills and employment relationships at local, regional and national levels, as well as in a potentially more flexible approach to employment preparation. The research was carried out during a period of high employment nationally but with Londoners experiencing above average rates of worklessness. The continuing relevance of the experience and recommendations of the ‘3Ds London’ research in economies that are experiencing recession is explored in the conclusion.

Employability and Entry to Employment Funders and other public stakeholders tended to see employment outcomes of beneficiaries or participants as the main indicators of success of the projects that participated in the ‘3Ds London’ research. A project’s continuing funding may depend on such outcomes. Consequently a large number of the projects included in the ‘3Ds London’ mapping exercise, while focusing mainly on skills development, also included an element of work experience or other employer engagement, short work experience placements, talks by employers, employer involvement in mock interviews, or mentoring, to mention just a few of the activities undertaken by employers to demonstrate their involvement. Some of the engaged employers also participated in intermediate labour market initiatives and provided subsidised work placements or work trials. Offering ‘real life’ experience of employment was seen by many of the ‘3Ds London’ project stakeholders as a very important factor in motivating and assisting disadvantaged and workless individuals. It was also seen as a way of demonstrating to employers the commitment and skills of participants, as well as a way of overcoming possible employer discrimination towards members of some the target groups.

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Most provider organisations professed to work closely with employers and gave examples of successful employment outcomes for particular project participants. However, in the qualitative interviews with providers it was repeatedly stated that it was difficult to set up long-term relationships with employers with whom project participants may have a chance of gaining employment, let alone with employing organisations that are able to recruit regularly from amongst workless individuals with low skill levels. Overall it appeared that there were not enough employers willing to become involved in the goals and objectives of such projects, or, put differently, there were too many projects chasing too few willing employers with relevant vacancies. Not surprisingly, the few providers with excellent employer contacts guarded these carefully. The type of contact between providers and employers varied; some providers worked mainly with small and medium-sized local businesses; others had been able to set up a regular relationship with one or two large employers in the private or public sectors with a declared commitment to corporate social responsibility and to employee diversity. Each of these different approaches to employer involvement is exemplified in the case studies below. The ‘3Ds London’ research found that overall 22 per cent of participants of projects in the sample moved into employment and 30 per cent progressed to further study, which is roughly on a par with larger government programmes. There was little information on the sustainability of the employment outcomes of project participants. Specialist third sector provider organisations may be best placed to recruit and develop participants from the most underprivileged groups, but may find that they do not have the right kind of employer links to help their participants into employment, as employers tend to prefer to work with larger and well- established organisations such as colleges, or with the large charities. Partnership working between different provider organisations with complementary expertise is therefore considered to be the way forward to ensure that each participant has access to a well thought-out and balanced programme that includes not only guidance and training but also outreach before the start of the programme and employer involvement during and after participants have completed the project or programme. The primary concern with employment outcomes – a characteristic that stems from the welfare-to-work approach towards reducing disadvantage – was criticised by many of the provider organisations interviewed. As the realisation that there is no ‘quick fix’ to boost skills and qualifications for employability has grown within the community of skills and employment professionals, specifying detailed employment outcome targets is increasingly considered to be misguided. Provider organisations often work in depth with participants from disadvantaged groups before ‘entry to employment’ can be embraced by these clients as a realistic personal goal. Experienced learning providers have argued that excessive focus on outcome measures, rather than personal developmental objectives, can lead to ignoring the needs of the ‘hard to reach’ and ‘hardest to help’. In recent years more integrated employment and skills services have developed along the lines advocated in the Leitch Review of Skills (2006) and its 2007 Implementation Plan. These developments have led to increasing realisation by policymakers and funders that learners from disadvantaged and discriminated groups may be several steps away from labour market entry, yet are nevertheless gaining valuable personal and social competences on programmes and projects that exist to assist their slow journey from benefit dependency towards employment (Meadows 2006). Various attempts have been made to define these personal and interpersonal skills and competences as successful

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project outcomes, wherever entry to employment is not a realistic option for participants, and as additional project achievements where it is. Different ways of recognising these ‘soft skills’ (such as communication, time keeping, team working and so on) have been developed, but no single model of assessing and certifying them has yet been widely accepted and implemented.5 These insights and developments may be considered to be at odds with the then Government’s proposals in the Welfare Reform Act 2009 which meant that virtually everyone of working age would be required to look for work and/or to prepare for work. In addition to Jobseeker claimants this would also include a large proportion of disabled people on Employment and Support Allowance (ESA) (formerly Incapacity Benefit) as well as lone parents (with children aged 12 or over). ‘Conditionality’ means that – depending on the length of time they have been out of work – greater expectations are put on individuals who will have to make greater efforts to get work to continue their entitlement to benefit. This punitive aspect was intended to be counter-balanced by giving greater support in finding work to workless individuals through their personal advisers and by involving a greater number of employers directly in the programmes. The ‘3Ds London’ research found, however, that although there is much talk of involving employers in helping those who are workless get ready for jobs, in practice most employers tend not to see developing the future workforce as part of their business, particularly when they do not have current skills shortages. But when they do get involved – and there are some good examples of this in the research – it is often a beneficial two-way process whereby support for workless individuals is also a development opportunity for the employers’ existing staff.

Good Practice Case Studies Five case studies were conducted for the ‘3Ds London’ research, which, together with a survey, interviews and focus groups, have contributed to a model of critical success factors which will be discussed in the following section. All case studies show that even in the first steps of attempting to enter the labour market, beneficiaries face discrimination, often on multiple grounds such as age, race/ethnicity or gender. The ‘good practice’ in each case study reveals methods that organisations and projects have employed to remove such barriers. Each of the following sections represents an example of an innovative project that targets a specific group and brings together employers, provider organisations and beneficiaries. This cooperation provides support for more sustainable employment conditions or acquisition of market-related skills for vulnerable groups. Removing barriers of social exclusion, the case studies demonstrate, is a major step towards preventing long-term disengagement from the labour market. The case studies also show that organisations provide support in similar ways by offering advice and guidance, language and familiarisation with the British culture and outreach work. Moreover, the 5 Pilot programmes to assess and certify soft skills of individuals without few or no formal qualifications have been developed inter alia in the context of EU projects, such as the EU Leonardo ‘Volicity’ project coordinated by London Metropolitan University in 2007, an EU EQUAL project in 2004 involving the Kenward Trust. The Open College Network (OCN) provides a national framework for such accreditations. At higher levels soft skills programmes have been accredited by the Chartered Management Institute (CMI) in 2007 and accredited programmes also exist for IT professionals.

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participation of employers is considered essential, and the case studies show that their participation in projects is a necessary element of good practice. All case studies were conducted in the second half of 2006. The research included semistructured interviews with members of the organisation, beneficiaries and employers. There were also research observations of facilities offered to beneficiaries, experience of classes provided and participation in employment events held by organisations. Additional data comes from the literature and website supplied by the organisation.

BEARS Youth Challenge Good practice in outreach work combined with guidance for young people living in areas with high levels of deprivation BEARS Youth Challenge was offered by Brent Educational Art Recreational Services. The organisation was established in 1991 with the purpose of helping young people – aged between 8 and 25 years and living on housing estates in Stonebridge and Harlesden – who experience multiple barriers as a consequence of their physical environment and of social problems such as family breakdown, underachievement in education, crime, lack of social networks, participation in the informal economy and long-term unemployment. All interviewees reported that young people from Stonebridge often experience discrimination by employers and some prefer not to mention the location in their Curriculum Vitae (CV) when applying for a job. One BEARS participant who had been helped by Hillside Housing Trust to gain a short-term apprenticeship with a construction company, explained how difficult it is for young people to gain employment because postcode discrimination is well established: People hear about Stonebridge and assume that everyone from Stonebridge is involved … there is discrimination … if you want any progress in your life then you need to get out of Stonebridge. Despite the substantial regeneration programme in the area an employer expressed the view that ‘to achieve successful regeneration, more effort is needed to also regenerate the people’ and provide additional facilities for young people to ‘get them off the street’. Good Practice: A combination of approaches that aim at ‘character development, lasting qualities of good citizenship and appreciation and understanding of the positive values of young people’s own community’ contribute to BEARS’ success. First, the provision of formal and accredited qualifications offered outside mainstream educational institutions as part of projects such as Entry to Employment (E2E) encourages educational achievement. Second, the development of innovative outreach work using outreach workers who are residents in the area. This brings the additional benefit of presence in neighbourhoods frequented by young people and identification and intervention in ‘hotspots’ where drugs are sold and other crimes are being committed. Most importantly the organisation adopts a ‘Never Give Up’ approach. Third, the designing of projects in a creative way that includes activities to enable young

Measures to Tackle Disadvantage and Discrimination in Access to Employment 255 people to contribute their thoughts on running the project and to develop entrepreneurial skills. An example includes a visit to a T-shirt design exhibition followed by a discussion with the designer on how to start and run your own business. Fourth, the organisation has had a presence in the estate for at least 15 years and has become known as an alternative route to employment and education. Fifth, provision of systematic guidance by carrying out an initial assessment and offering advice and help with CV writing even outside normal working hours. Finally, BEARS has developed links with employers and their projects contain aspects of work placements that can lead to full or part-time employment, for example some beneficiaries found a job in the local hairdressing salon.

Building London Creating Futures Good practice in innovative partnership between construction employers, local government and colleges Building London Creating Futures (BLCF) aims to find long-term employment for local people in the construction industry. It is a collaboration between the public and private sectors, based on a partnership of construction employers, training providers and community organisations, local authority regeneration agencies and employment agencies. Coordinated by the London Borough of Southwark, the project started in 2001 was funded by ESF Equal and has attracted funding from a number of other regional, national and European sources. It is open to anyone seeking employment in the construction industry, but is specifically designed to help people who are under-represented in the construction workforce including ethnic minorities, lone parents, mature workers, people with low or no skills, the long-term unemployed, women and recent returners. Most participants join at entry level with low or no skills. Training includes health and safety which enables them to obtain a CSCS Card.6 Beneficiaries are encouraged to undertake training that will lead to a qualification, normally NVQ level 1 or 2, and there is help with soft skills such as CV writing. Support is provided by the project’s workplace coordinators (WPCs) who help recruit the beneficiaries and match them to relevant opportunities, working with the partnership’s seven construction companies. The costs are split between the private and public sector. The threestep process of recruitment and support used by one of the BLCF construction partners is outlined here: •

Mace is a large construction and project management company and a partner to BLCF. The company was the principal constructor at Heathrow Terminal 5 and employs a WPC as a social inclusion officer. The WPC works with local stakeholder organisations such as Jobcentre Plus to find suitable candidates. The beneficiaries are briefed by the WPC about the qualifications needed and interview procedures.

6 The Construction Skills Certification Scheme (CSCS) card is the passport to working on site in the construction industry.

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•

Once employment is found the WPC will use the grants given by BLCF to develop the individuals’ skills so that if they start as labourers they can then perhaps take an NVQ1 or 2 to move up the ladder of construction skills and qualifications. The third stage is about making sure that these new entrants are well supported and mentored in their new jobs. This could include giving general advice on work such as reminding people to be punctual, helping them with travel planning, or assisting them with their domestic arrangements, such as finding suitable childcare. This relationship is designed to continue. There is also a bursary scheme provided by Mace to support to beneficiaries through further programmes allowing students from poor backgrounds to study construction-related degrees at university.

Good Practice: BLCF has had a high success rate which can be attributed to a number of factors. First, it has strongly contributed to changing the image of construction which is still seen as a white male-dominated sector. Some actions include encouragement of women WPCs and banning a sexist workplace culture. Second, outreach work by focusing on disadvantaged areas in Central London with the help of the project’s extensive partnerships. Third, the tracking of beneficiaries which makes sure that the relationships with beneficiaries provide continuing support. Fourth, employer links are ensured through a series of regular face-toface meetings with construction companies that have expressed an interest in the project. The final factor is the provision of WPCs, and as these positions are co-financed by BLCF and employers they are well-placed to recruit beneficiaries and to ensure the employers’ ongoing commitment to the scheme.

MENCAP Pathway Project Good practice in ‘job carving’ and the development of an innovative approach that matches the needs of employers with the particular capabilities of beneficiaries with learning disabilities The MENCAP Pathway Project in Sutton and Merton, South London, assists people with learning disabilities to access employment. Sutton Pathways Employment Service has been working in the London Borough of Sutton for 19 years and more recently also in the London Borough of Merton. Pathways is the education and employment arm of MENCAP, the UK’s leading learning disability charity. The Pathways initiative is a range of connected projects and is being funded by a variety of sources, including ESF and Jobcentre Plus. The three main projects are: Step by Step, a 26-week course of individually-based support for confidence building, CV completion, job search skills, interview preparation and practice and work experience; the Work Preparation Programme is a two-part programme consisting of a 12-week classroom based pre-vocational training and an 8-week work placement module, offering work experience; and Connexions to the World of Work is a partnership project between the Connexions Service and Sutton Pathways that provides personal development modules and work experience placements for young people with learning disabilities. The three categories of projects help participants according to their needs but also offer progression for individuals to move from one to another.

Measures to Tackle Disadvantage and Discrimination in Access to Employment 257 All three projects have a strong employment focus. MENCAP Pathways has introduced ‘job carving’ as a way of working with employers. This is an innovative way to find suitable employment for people who, because of their health status can work only for a few hours a day or for a few days a week: for example ‘a catering job, can be carved up with a few hours dedicated to washing, dishwasher stacking and clearing tables and so on’ (MENCAP interview). MENCAP found that this system has worked well and, for example, the London Borough of Sutton Civic Offices employs Pathways clients in a range of roles. The Pathways Employment Service is also working closely with a whole range of private employers locally – large and small – including Sainsbury’s, Asda, Morrisons and UCI Cinemas and promotes the benefits of employing people with learning disabilities. Additionally support is offered to employers, such as disability awareness training, support workers for people on work experience and access to grants for adaptations to premises and special equipment. Pathways is also working with some employers on ‘work trials’, where a person with a learning disability who is interested in applying for a job is given a week or two work trial rather than going through a formal application and interview process. This gives the chance both to the employer and the candidate to assess suitability and future chances of employment. Good Practice: MENCAP Pathways Employment Service has been successful in helping people with learning disabilities and attributes this success first to understanding the needs of the target group. It has been able to design and offer a range of different programmes tailored to the needs of individual clients. The pre-work training and advice coupled with the work placement provide the clients with vital skills and experience. The provision of ongoing support is an essential part of MENCAP’s provision and part of an important network of support that involves families, carers and the employers. So is working closely with employers to look at flexible approaches to recruitment such as the work experience trial period as an alternative to formal interviews which can be a real barrier for people with learning disabilities. MENCAP has also worked closely with employees on job carving – two or three people filling one post – providing flexible working conditions for people with learning disabilities. Finally, MENCAP emphasise that employers who have a commitment to a diverse workforce are willing to adapt their premises and their ways of working to accommodate a truly diverse workforce, which can bring real benefits in terms of customer profile and staff morale.

Praxis Integration of employability skills with opportunities to further vocational training for refugee and BME groups Praxis is an organisation based in East London that has operated for 20 years offering support to new residents to integrate in the UK. The preparation course for the Supervised Practice Programme prepares beneficiaries from refugee and BME groups for work in the health and social care sectors, in close collaboration with employers. This programme started in 2000 and had helped over 140 beneficiaries by the end of 2006. Funding comes from different

258 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k sources including the Health Action Team, a local regeneration project made up of local employers, such as the Barts and London Hospital Trust and the Tower Hamlets Primary Care Trust; the Learning and Skills Council with ESF co-financing; London City Fringe funding and other regeneration funds. The programme consists of a 12-week course that helps Overseas Qualified Nurses (OQN) prepare for the Supervised Practice Programme at hospitals and nursing homes. This placement is necessary for them to get their PIN number which enables them to practise in the UK. Components of the programme include ‘language and communication skills’, ‘orientation to nursing in the UK’, ‘employment preparation’ and ‘equalities’. Although the course was discontinued in 2006 because there was no longer a serious shortage of nurses in the NHS, its model has been transferred to courses for midwives and allied healthcare professionals. The project has seen between 70 to 80 per cent of participants gaining nursing employment in the UK. A Nigerian nurse explained that the programme was beneficial for her in terms of acquiring IT skills but also for learning communication skills in the UK workplace environment: In Nigeria they have the British-based knowledge about nursing but use different terminologies. In Praxis, they put me through all the medical terms used in the UK. They prepared me very well so that when I went to do my supervised practice, I didn’t find it difficult in the ward. Good Practice: The project was successful because it incorporated courses specific to the target groups. These include, first the full preparation of participants for the Supervised Practice Programme with the provision of training for language, general communication skills and working culture in the UK. Praxis customised the project to take into consideration the needs of the participants and the final outcomes that were required by employers. It is innovative because, according to Praxis, ‘nobody else is doing it, or very few people are doing it and Praxis courses enhanced participants’ skills by directly tackling barriers’. Second, the provision of guidance for comprehensive job search skills such as help with completing job applications or using websites that offer job vacancies. Third, additional support after nurses leave the course is part of the project’s objectives and this is provided through tutorials or by writing references for beneficiaries. Fourth, evaluation as a way to improve project delivery is taken seriously and involves various steps: the completion of evaluation forms by all participants; a meeting with tutors and staff on the course to evaluate the programme; monitoring and evaluative feedback by funders; various external evaluations. Finally, the project is linked to employers and work experience and employers participate in teaching of the courses and in mock interview sessions. In this way, employers get to know Praxis students and are more likely to give them employment when suitable opportunities come up.

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Tamil Refugee Training and Employment Centre How gender is addressed separately within a BME group The Tamil Refugee Training and Employment Centre (TR TEC) is one of three Tamil organisations in London that offer services to Tamil refugees. A project ‘Skills for the Disadvantaged’ has been developed to recruit members of the Tamil community, particularly women, and give them support with language, employability and IT skills. The project ran for two years, completing in 2006, and was funded by the LSC Pan London ESF co-financing programme. Over 3,000 individuals participated in the project, many of whom progressed to further education and employment. Good Practice: The project was developed to tackle multiple disadvantages such as ethnicity and gender in innovative ways. First, increasing participants’ skills to compete in the labour market was an essential element to foster inclusion in British society. TR TEC identified that Tamil refugees’ access to the labour market can be hindered by language barriers, cultural barriers, and insufficient IT skills, so the project addressed this with courses such as language and communication skills or learning the cultural aspects of the UK’s labour market. Second, the organisation targets women from the Tamil refugee community. It has been successful in attracting women as their participation in the project increased from 20–30 per cent to 50–60 per cent within a few years. Recruiting women required an innovative solution: TR TEC recognised that the problem with women’s low participation has cultural elements: married women tend to stay at home interacting mainly with their own communities. The organisation has 18 laptops with wireless connection which they take around Tamil community centres and temples to encourage women to participate. They leave the laptops at a community centre or temple for three days to get women interested in computers and subsequently the organisation’s project. TR TEC also pays for childcare in order to support women’s ongoing participation. Third, TR TEC provides guidance in terms of job search skills through access to computers and the internet, CV and cover letter writing. Finally, the organisation has established strong links to employers who provide work experience mostly in Tamil businesses. TR TEC uses what it calls Tamil Yellow Pages to contact Tamil businesses, to convince them of the benefits of taking participants on work experience. These businesses – because they are Tamil and are aware that TR TEC is a charity – are often willing to help. TR TEC points out that it is more difficult to place participants with non-Tamil employers. As the project manager says: ‘it is difficult to persuade other employers to accept refugees as trainees. It could be due to their accent, but we are still trying hard’.

A Model of Critical Success Factors: Explaining Successful Intervention The ‘3Ds London’ research has shown that a combination of internal and external factors can make a difference to the opportunities for finding a job or acquiring qualifications for people from groups that experience disadvantage and discrimination. The good practice examples reported here demonstrate that a focused effort of partnership working between

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provider organisations and employers, and from beneficiaries themselves in developing their motivation and confidence, can work successfully in providing support into employment or education. Figure 18.1 shows the essential bases and pillars of support necessary for successful outcomes.

Participants Engagement

Continuing Support

Project Learning & Skills Development

Childcare, Interview and Travel Expenses

Other Support

Awareness of diversity and needs of target group

Provider organisation (partnership)

Interview and work experience

Employers

Work Experience

For example benefits, care, health, housing

Information, Advice and Guidance

Funding

Figure 18.1 A model of critical success factors: tackling disadvantage, disengagement and discrimination

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Funding base Funding agencies help develop and deliver innovative projects aiming to provide support to disadvantaged groups. Projects are funded in a number of different ways and funding is generally channelled through provider organisations. There is a strong need for support to be provided through three channels (shown as pillars in the diagram). The first is providers who receive public funding and are usually experienced in dealing with specific disadvantages. During the research providers often reported on the multiplicity of disadvantage and the difficulty in identifying one over the other. Second, employers need to take on board the diversity agenda and help local people into employment either by providing work placements, apprenticeships or full/parttime employment. Some of the case studies have demonstrated employer discrimination practices but others have highlighted the benefits for employers of taking a flexible approach to staff recruitment. Finally, other support from agencies outside the learning and skills system such as health and housing was also identified as essential.

Projects Funded projects are offered to participants by provider organisations. Projects that include the following components appear to be most successful in making an impact on participants’ ability to progress into employment:

• Information, advice and guidance (IAG) to ensure that the project is appropriate and that the participant has a purpose and objective;

• learning and skills development, for example, skills for life or IT classes, apprenticeships, employability skills such as CV writing;

• work experience or work placements, providers need to work closely with employers to be able to give participants at least short-term work experience as well as interview practice with feedback from the employer; • financial support with travel, childcare and interview expenses, for example appropriate clothing; and • continuing support (for example, through mentoring) after a project ends to assist participants in their job search and to maintain their motivation.

Participants Project participants from disadvantaged backgrounds demonstrate engagement through their participation. The successful application of the model can help increase motivation and can lead to beneficiaries’ full participation as citizens and in the labour market. All case studies have demonstrated the importance of combining all the measures shown in the model when designing and carrying out projects to bring disadvantaged groups into the labour market. The Model of Critical Success Factors thus attempts to summarise the findings of the ‘3Ds London’ research in diagrammatic form. The different factors that the research has shown to be central to tackling disadvantage and discrimination amongst vulnerable groups include a combination of internal and external factors; internal factors relate to project participants and their willingness and ability to engage with projects designed

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to move them closer to the labour market and hence to self-reliance and to greater engagement with a wider community. External factors include a comprehensive range of effective support measures tailored to individuals’ particular needs, which in addition to skills development may need to include involvement of health agencies or access to appropriate housing. The main focus of the ‘3Ds London’ research was on the projects provided by a range of organisations to give assistance and support to members of disadvantaged groups and on the experience of the participants of such projects. However, as the diagram shows, the role of employers and of the welfare state agencies is equally as important. A closer link-up between the pillars – the agencies of the welfare state, the organisations that develop learning and skills and the employment system – is now developing, for example, in recent Government proposals for the reform of welfare and through the important role of sector skills councils.

Conclusion The ‘3Ds London’ research brought together information about a wide range of projects that helped more than 145,000 Londoners from disadvantaged and discriminated social groups to move from a state of worklessness into employment or get closer to the labour market, thanks to increased personal and/or vocational skills, qualifications and work related experience. Interviews gave useful insights into the experiences of project participants and provider organisations, as well as employer and other stakeholder rationales for giving their support to such projects. Their comments included suggestions for future improvements, and some of the views expressed in this research – and also advocated by other research (Hasluck and Green, 2007; Hirst et al. 2005) – may have helped influence changes in policies and institutional frameworks. For example, the setting up of London’s Employment and Skills Board by the Mayor of London in association with the London Learning and Skills Councils, and consideration of similar institutions at national level, are important steps in the direction of providing more integrated services to the workless. Local Employment Partnerships were piloted in a number of areas and have now been rolled out nationally to provide work trials for Jobcentre Plus clients, while integrated Employment and Skills pilots started in London in early 2009. Bringing employers more directly into the delivery of pre-employment support is a positive development as it can facilitate a mutual understanding between government agencies, learning providers and employers of the individual needs of members of disadvantaged groups as well as of the contribution they can make to employing organisations and the economy. At the same time, work placements or work trials help participants of these programmes gain realistic insight into employment opportunities and current business practices. Increasing use of the ‘business case for diversity’, together with a sense of corporate social responsibility, has led to greater involvement by employers in projects for disadvantaged groups. Corporate social responsibility involves taking the initiative to reflect and help meet social and environmental concerns through the company’s activities, whereas the business case for diversity argues for the advantages of reflecting the community within which a company works – the ‘community’ being seen both as the recruiting ground as well as the customer base for the company. Either or both of these approaches are practised by responsible businesses and emphasise the importance of a businesses’ reputation in the wider society. Employers’ greater involvement in projects for disadvantaged groups has

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also been facilitated by the ‘trial’ nature of some programmes which enable an employer ‘to see what they get’ and when trials or placements are subsidised this is welcomed by employers, particularly by smaller organisations. The ‘3Ds London’ research made a case for a holistic approach to the needs of disadvantaged groups and for collaboration between different agencies in order to tackle the multiple disadvantages that are evidenced in low skills and worklessness. The nature of the barriers to full participation in employment are different for each disadvantaged group and in each individual case and hence a flexible personalised approach is most appropriate. Evaluations of mainstream government programmes such as New Deal and Pathways to Work (Hasluck and Green 2007) have also shown the importance of individual personal support, of flexible delivery and of other support measures to remove the barriers that make it difficult for members of disadvantaged groups to aim for – let alone achieve – access to employment. The Gregg report (2008) proposed a personalised support regime that includes consideration of a wide range of factors (including inter alia time since last job, skill levels, care responsibilities, health and others). The details of such a personalised package will also depend on whether someone is in principle workready or progressing-to- work. Some of the Gregg report’s recommendations have been integrated into the Welfare Reform Act 2009, that aims to improve employment outcomes particularly for disadvantaged groups – but also gives disabled people greater control over the way in which services are provided – as well as setting up a general expectation that employment is a suitable and realistic goal for nearly all benefit claimants. The projects discussed in the ‘3Ds London’ report, as well as the active labour market measures promoted by government, were developed within a favourable economic context when unemployment was low and the economy was growing. The recession that developed in late 2008 makes it even more difficult for members of disadvantaged social groups to gain a foothold on the employment ladder, particularly as the profile of those now looking for jobs will include greater numbers with high levels of skills than was the case before the economic downturn. The Welfare Reform Act 2009 put emphasis on preparation for employment, however far from the labour market an individual claimant might be, making it more likely that skill development and work-related activities will continue to take place during economic recession. The Act’s pre-employment support proposals may be capable of having more than a minor impact on discrimination and inequality in access to work, particularly if indirectly supported by the provisions of the Equality Act 2010 that places a major duty on public authorities to address socioeconomic disadvantage in their strategic planning. If a joined-up approach is sustained it will create an enabling rather than a punitive context for welfare-to-work reforms and will give more equal access and opportunities to compete for jobs to those from disadvantaged backgrounds.

References Beutel, M. and Paraskevopoulou, A. (2006) Tackling Disadvantage, Disengagement and Discrimination in London’s Labour Market. “3Ds London” Final Report. London: Working Lives Research Institute. Equality Act 2010 (2010) London: Stationery Office. Giddens, A. (2000) The Third Way and its Critics. Cambridge: Polity.

264 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Gregg, P. (2008) Realising Potential: A Vision for Personalised Conditionality and Support. An independent report for the Department for Work and Pensions. London: Department for Work and Pensions. Hasluck, C. and Green, A.E. (2007) What Works for Whom? A review of evidence and meta-analysis for the Department for Work and Pensions. Research Report No. 407. London: Department for Work and Pensions. Hirsch, D. and Millar, J. (2004) Labour’s Welfare Reform: Progress to Date. Research Report. York: Joseph Rowntree Foundation http://www.jrf.org.uk/knowledge/findings/foundations/n44.asp Hirst, A., Tarling, R., Lefaucheaux, M., Rinne, S., Delvaux, J. and Marshall, B. (2005) Research into Multiple Disadvantaged Groups in European Social Fund Objective 3 in England, Department for Work and Pensions Research Report No. 286. London: Department for Work and Pensions. Leitch Review of Skills (2006) Prosperity for All in the Global Economy – World Class Skills. Final Report. London: HM Treasury. Meadows, P. (2006) What Works with Tackling Worklessness? London: LDA and GLA Economics. OECD (1999) The Local Dimension of Welfare-to-Work. An International Survey. Paris: OECD. Ritchie, H., Casebourne, J. and Rick, J. (2005) Understanding Workless People and Communities: A Literature Review. London: Department for Work and Pensions. Welfare Reform Act 2009 (2009) London: Stationery Office.

chapter

19 ‘Eyes and Ears’ in the

Workplace: The Developing Role of Equality Representatives SIAN MOORE

Introduction The case for Equality Representatives (ERs) was made in the Trade Union Congress (TUC) submission to the Women and Work Commission in 2005. The TUC believes that trade union Equality Reps are uniquely placed to promote fairness in the workplace, first by raising the equality agenda among fellow workers and their own unions, second by encouraging employers to make equality and diversity part of mainstream collective bargaining and third by working with vulnerable workers and trying to ensure that every worker receives fair treatment irrespective of gender, race, disability, religion, age, gender reassignment or sexuality (TUC 2009). The argument that they should have statutory rights to paid time off, facilities and training was not accepted by the Commission, but it did recommend that the Union Modernisation Fund (UMF) make available £5 million to train and develop networks of Equality Reps and that unions and employers re-negotiate recognition agreements on a voluntary basis in order to provide time off and facilities for them (TUC 2009). The Labour Government made £1.5 million of UMF money available for pilot projects ‘to help develop a union infrastructure to support the workplace activities of equality representatives – for example through training and development’ (Equality Bill White Paper ‘Framework for a Fairer Future’). The TUC (2010) reported that in addition to their own project for the training and development of ERs, there were seven Equality Rep projects running in UNISON, Unite, the National Union of Teachers (NUT), Prospect, Public and Commercial Services Union (PCS), the General Federation of Trade Unions (GFTU), Connect and the Transport Salaried Staff’s Association (TSSA). It expected that by the end of March 2010, there would be around 1,400 Equality Reps active in organisations in both the private and public sectors (TUC, 2010), Although ERs emerged before the introduction of the Equality Bill and the establishment of the single Equality and Human Rights Commission to replace the previous equality bodies, the prospect of a new legal context and particularly the recognition of seven equality strands appears to have shaped the ER role.

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This chapter explores the role of the ER in public services union UNISON, examines early evidence of their impact in the workplace and discusses whether the role provides a new route to activism. It considers how far their introduction represents a break with UNISON’s tradition of self-organisation among groups facing discrimination, in political as well as organisational terms, or whether the two approaches to equality are compatible. The chapter is based upon the early findings of research on the ‘Establishing Equality Reps in UNISON’ pilot project, which focused on the establishment, training and development of ERs in UNISON as part of the union’s Equality Strategy (UNISON Black Action, Winter 2009), as well as aiming to develop partnerships with employers to effectively fulfil their statutory duty to promote equality. The Equality Act 2010 will ensure public bodies report on equality issues, promote equality of opportunity as well as making equality a legitimate factor in procurement (see Conley, Chapter 2). UNISON’s Union Modernisation Fund (UMF) project explores how ERs can be agents of change in these processes, looking at their engagement with employers and possible impact upon service delivery and highlighting innovative partnership which goes beyond standard collective bargaining machinery and processes. The context of the research was established first through in-depth interviews with three national officers involved with the project and/or UNISON’s Equality Strategy; and with three regional officers, one from each of the pilot regions. These interviews clarified the issues, expectations, targets, indicators of change and possible barriers. Second, information was gathered through a survey of 18 ERs from 12 pilot branches based on a short questionnaire survey distributed electronically and by post. This represents about a third of the 57 ERs, from 40 organisations across the three regions, who have participated in ER training. This initial survey covered the recruitment and characteristics of ERs, initial training and support structures, early activity and equality issues within the organisation and branch and union-employer structures for dealing with equality. Of those responding 10 were female and 8 male; 2 defined themselves as Black British, 1 as ‘Black other’, 11 as White British and 4 as ‘White other’. Thirteen were over 40 and only 1 under 29 – 4 were between 27 and 39. Third, the report draws upon in-depth interviews with 13 ERs and 2 Branch Equality Officers from the 3 regions – 6 male and 7 female and 4 Black (2 of them migrant workers and 2 Black British). The interviews focused upon the factors which encouraged UNISON members to become ERs, particularly those who were new activists. They explored their perceptions of their role and current activity and barriers to activism, as well as the factors which allowed them to be effective. All the interviews were based upon a semi-structured topic guide and were recorded and transcribed with the participants’ consent.

Findings Routes to Activism? Across unions the ER initiative has been seen as not only improving representation on equality activity, but providing new routes to activism for lesbian, gay, bisexual and transgender (LGBT), disabled, black and minority ethnic (BME), young and women workers. The TUC reported that their ER training courses have recruited a mixture of new reps, existing reps adding a new role, and former reps wishing to remain active

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(TUC 2009). In this way it argues that the ER initiative is helping to support and regenerate workplace representation. A subsequent survey of 320 trained ERs found that 18 per cent were new activists (TUC 2010). In UNISON during February and March 2009 ER training courses were held in each of the 3 pilot regions with a total of 57 UNISON members trained. Of the 57 participants, 61 per cent were women and of those where ethnicity was given, 17 per cent were black (the majority from 1 region); of those where age was given, 17 per cent were under 40 and only one was under 30. Whilst this training attracted a number of existing activists with an interest in equalities, it also identified a number of members who were not active, but who were encouraged to attend by branch and regional officers: in one region half of those trained were not existing activists. Over one third (39 per cent), or 7 of the 18 ERs in the survey, had never held a branch officer position – half were currently shop stewards, 1 had been in the past, over one third (39 per cent) were currently branch officers and 1 had been a branch officer in the past (most stewards were also branch officers). ERs in the survey had been UNISON members for between 1 and 32 years, with a median of 10 years. The vast majority had attended a workplace meeting (94 per cent) and a branch meeting (88 per cent). Whilst there is some evidence that the ER role is providing new routes to activism for UNISON members, the fact that over half had attended UNISON’s Delegate Conference confirms that a proportion of ERs are experienced activists. A number of ERs, who were stewards or branch officers or involved in Self-Organised Groups (SOGs), were already active on equality issues and felt that the ER role was ‘a natural development’ for them. For one ER in local government: I tended to look more towards the equalities thing because I’m a disabled employee as well and that sort of got my interest going. (White female ER interviewee in local government)

For some the motivation to become an ER was an experience of discrimination in the workplace, in particular where UNISON had taken up their case: I had a problem with my employer and needed the support of the union, because of the support that I got, and how good they were, I wanted to give something back and the way to give something back is to become active yourself. (White male ER interviewee in utilities)

Another ER had received no support and recognised a need for union representation and had become an ER because of: Personal experience – after five years of telling a manager of a colleague’s racist comments and no support or action, I finally made a formal complaint which was very stressful and only partially upheld due to complete lack of support from management – if I’d had an Equality Rep to go to it could have helped a lot. (ER survey)

Equality Representatives identified individual experiences of discrimination as a symptom of collective relations at work – their desire to ensure others did not have to go

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through something similar, but importantly the union’s response to discrimination and the notion of ‘giving something back’ to the union, were the basis for their activism.

The Organisational Role The distinctiveness of the ER role in UNISON is its focus upon the workplace; in contrast the self-organised structures operate across branches and regions, as well as at the national level of the union and one regional officer suggested that some activists could become distanced from workplace issues. One Branch Equality Officer and ER saw the role of ERs as being primarily ‘the eyes and ears of the union’ in the workplace, identifying issues which could be taken up by the branch – in this they were sometimes seen as an advocate or as empowering other members. As one ER put it: I wanted to be able to help colleagues who are having problems at work but keeping it to themselves out of fear of being isolated or victimised. (Black male ER interviewee in Housing Association)

One of the ERs interviewed confirmed: I think as reps our job really would be more to identify where the inequality is and what the issues are and then present them to the branch officer, and then we will take it from there. (White male ER interviewee in Local Government)

One key issue emerging from the interviews was the capacity of ERs to challenge attitudes at the level of the workplace. This ER in a call centre gives an example: One of the lads was talking to him and one went ‘oh you’re so gay’. And I looked and he went ‘I’m so sorry, I didn’t mean it like that’. I said ‘I know how you meant it, but what I want you to do is think of why you actually used that word. You used it like being gay is a bad thing, is being gay bad?’ and he was like ‘no’. I said ‘so think about it’. So it’s just little bits like that, but I just think that’s ignorance and education, I don’t think for one minute they’re being homophobic or anything like that. It’s just raising awareness. (White male ER interviewee in utilities)

Unlike other unions UNISON had made a decision that ERs would not take individual discrimination cases, although they may provide support for members involved in such cases. Similarly they might identify equal pay cases, but these would be referred upwards through the union. The reluctance to let ERs take on individual representation was partly because of a concern not to overload or scare off new activists, but also because representatives taking individual cases must have accreditation – ERs might take cases if they were already shop stewards or if they decided to undertake the required training. In the survey ERs primarily saw their role as providing information to members and nonmembers about equality issues and promoting awareness of equality legislation in the branch. However this was followed in importance by representing individual members on equality issues, suggesting that ERs themselves felt this was part of their role.

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According to the TUC the ER role in some unions will be largely a campaigning, support or championing one, whereas others intend ERs to be full members of the negotiating team (TUC 2009). In UNISON a number of regional officers did not initially anticipate that ERs would have a formal negotiating role, as one put it: The proof will be in the eating of the pudding but I’m still not 100 per cent sure that people understand that the Equality Rep finds issues, that it’s not their role to negotiate or to deal with cases. It was emphasised very much in the training course but I still think there are some people who think it’s about dealing with cases. (Regional Officer)

It was conceded that ERs might negotiate with local managers over local workplace issues and this workplace role was reflected in the issues that ERs had taken up so far; for example one was having informal discussions with local management about disability access in the move to another office. Another had taken up access to training for a part-time worker with a local manager. A number of the ERs interviewed had a broad perception of the role and felt that, with support, they could both negotiate over equality issues with management and represent members. A new ER without other responsibilities felt she had the capacity to take on a range of tasks: Well, first and foremost obviously I see it as for members, for somebody for members to come to if they’ve got a difficulty with an equalities issue. And then, I mean I know we don’t do any casework, we have to then pass that along, but we would be the first port of call. And I also see us as a consultative element and a negotiating element, definitely. That’s the way I would like it anyway. (White female ER interviewee in Local Government)

In the survey under half (44 per cent) reported having had meetings or discussions with management. Such discussions had included maternity leave, attitudes within the organisation and ways to audit these and responsibilities under the Disability Discrimination Act. A third said the branch had discussed the organisation’s responsibilities under equalities legislation with the employer – in one case this involved the extension of working life beyond the ‘standard’ retirement age, in another the monitoring and evaluation of a recruitment drive and in another the public sector equality duty. In local government, the police service and health sector the public sector equality duties had prompted the establishment of employer consultative bodies or staff forums for Black and Minority Ethnic, women, disabled and LGBT workers. Some ERs attended these groups and raised issues through them, although in a few cases there appeared to be confusion as to whether they were attending them in a work or union capacity and it was sometimes unclear whether there was formal union representation. Ironically, while it was UNISON that historically has led the way on self-organisation, these more recent staff bodies may serve to replace or undermine union self-organisation in branches. The danger here is that it may suggest to workers that employer activity in these areas is sufficient, despite the limited powers of such bodies and the fact that often they have been established to meet legislative requirements to consult particular groups in the workplace.

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The emphasis on the listening and information role of the ER at the expense of negotiation may reinforce a focus upon individual rights within the workplace rather than mobilising members around collective issues; there may also be an implication that ERs have a secondary status as representatives. Daniels and McIlroy (2009: 140) have suggested that the roles of both ERs and Union Learning Reps are constrained because they do not involve collective bargaining and joint regulation. Colling and Dickens (1989) earlier noted the exclusion of equality issues in collective bargaining and attributed this, in part, to the low levels of representation amongst women in the collective bargaining machinery. Danieli (2006) has challenged the gendered nature of industrial relations and the historic assumption that social and personal relations, including gender relations, are not its legitimate concern. She notes that more recently issues arising from wider social relations – sexual harassment and domestic violence for example – have become legitimate issues for inclusion in collective agreements (2006: 332). At the same time, Healy et al. (2004) have challenged the dichotomous and unidirectional relationship often posed between individualism and collectivism. They argue that differentiation of the workforce in terms of gender, race and ethnicity can lead to new forms of collectivism and that ‘assumptions of a homogeneous form of collectivism are unfounded’ (2004: 463). Although the ERs participating in the study had only been in post a few months, a number were actively taking up equality issues, in some cases reflecting or framing their existing activity. The early accounts of ER activity suggest that the identification of individual issues arising from such differentiation was not counter-posed to the collective since it was anticipated that issues would be generalised. A major issue for ERs is the invisibility of equality issues in the workplace and organisation. Regional officers saw the ER project as key to integrating and mainstreaming equality into organisational and branch activity. Other issues that came up were sickness absence policies and their effect on workers with disabilities, performance appraisal, work– life balance, flexible working, and maternity and paternity leave. One ER mentioned the equality impact of her organisation’s inclement weather policy, where she felt the requirements for attendance during heavy snowfalls worked against employees with school-age children. An example of an ER providing a collective framework for individual issues was in the utilities sector where the ER had taken up car parking for disabled members following the relocation of the organisation: The disabled parking is one – there are individuals in it, initially it was just one and then another and then another, so I suppose initially I took on the individual [cases]. It just happened that you ended up with five sorts of group things and now we’re negotiating on a bigger picture with the company. We’ve suggested to them that they need to apply for planning permission outside, something that they said they wouldn’t, but then when I showed them the Disability Discrimination Act document that said there is a right to request reasonable adjustment, they are now doing it. So it’s a bit of both. (White male ER interviewee in Utilities)

This issue involved the ER leading on negotiations with management, although he was already a branch officer and this may indicate the importance of ERs having a negotiating role or direct access to negotiations at organisational level. In one local government branch two ERs were concerned about the equality impact of a council reorganisation, which included the relocation of offices outside the city and the

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introduction of hot-desking. They were convinced that this reorganisation would have a disproportionate impact upon women workers, since there was no public transport and unsocial hours working would raise safety issues, whilst hot-desking had particular implications for workers with disabilities: They [the council] have not had a full equalities impact assessment done – and we are kicking and kicking and kicking about this. (White female ER interviewee in Local Government)

These ERs also needed to convince branch officers involved in negotiations on the reorganisation that there was a detrimental impact on equality. As one ER said ‘I think I’ve been stepping on quite a few toes actually.’ Both were prepared to become involved in negotiating and campaigning on the issue and there were discussions about the ERs taking up a role on the Council Employee Consultative Committee where they would be able to communicate directly with local councillors over the issue.

Statutory Rights The Women and Work Commission was divided on the issue of statutory rights for ERs. Whilst some felt that, ‘Without this, equality reps would not be sufficiently effective nor achieve their potential for adding value in the workplace’, others were unconvinced, although the Commission recognised that unions and employers would ‘need to reach agreement to give equality reps paid time off for training to carry out their duties and facilities’ (Women and Work Commission 2006: 86). Despite union lobbying, the Equality Act 2010 has not conceded statutory rights. In the UNISON survey, where ERs already held a position in the branch time off tended not to be a major issue since they used their existing facility time. In the survey of ERs 8 out of 18 (under one half) said that they got time off to undertake their role as an ER, another 4 said that they expected to get time off and 4 did not get time off (2 were unsure). However, all respondents and interviewees perceived the main barrier to fulfilling the ER role to be the absence of statutory support and the difficulties of securing paid time off. There was a feeling that most would not get time off to undertake their specific duties as an ER or that it would be dependent upon individual managers or upon the interest of the organisation in equality at a particular moment. One possible response is for branches to reallocate existing facility time, as a national officer put it: Obviously most branches, not all, have a facility time agreement with their employer. I guess as a union we would need to argue that the equality rep or reps had some of that facility time or that we try to negotiate additional facility time at local level for the equality reps. (National Officer)

However, one regional officer acknowledged that branch officers could be ‘gatekeepers’ to the extension of time off for new representatives. Another considered that ERs might be loath to ask employers for time off since in the context of staff cuts they would have to catch up with their work or would feel that they were placing extra pressure on their colleagues. Reflecting this, one of the survey respondents said they needed further

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training, but feared that they would not be able to get time off due to their workload. Regional Officers also acknowledged that UNISON representatives in general did much of their union work in their spare time, yet, for ERs there may be specific issues, especially for representatives with caring responsibilities. One regional officer suggested that the existence of role models who committed high levels of their own time and energy to union activity could act as a deterrent to the emergence of new activists. In relation to this point, seven of the 18 (over one third) respondents to the ER survey had caring responsibilities and two worked part time. One of the latter felt that part-time work was an obstacle; ‘management don’t take any notice’. Regional officers expressed fears that ERs could become isolated, unsupported and overloaded, in particular where they covered a large number of workers or workplaces or different departments; in the survey half (50 per cent) said that they represented a particular workplace or department, under half did not and thus had a wider remit.

Integration Research on union learning has highlighted concerns that it might develop separately from core union activity and that Union Learning Representatives (ULRs) may not be integrated into the wider union (Moore 2009). National officers emphasised that ERs should be integrated into wider union structures, organisation and agendas. They stressed the importance of developing a team of ERs, a ‘branch equality team’, coordinated by the Branch Equality Officer (BEO), which would be the means by which ERs fed into branch structures, including the negotiating agenda. In some cases it was anticipated that ERs would be on branch executives or committees, depending upon the branch structure; in other cases the BEO would represent their interests. A number of the ERs were already on branch committees or executives in their capacity as branch officers. The BEO would also act as the link with the Branch Assessment process, which ensures that branches are focused upon national union strategies, including ensuring that equality is central to UNISON branch activity.

Self-Organisation Healy and Kirton (2000: 357) argue that over the ten years between 1987 and 1997 there was a shift in UK trade unions ‘from a liberal approach to more pro-active separate organising’. Kirton and Greene (2002) utilise Jewson and Mason’s (1986) liberal and radical conceptions of equality to consider positive action strategies in UK unions. They conclude that in terms of improving women’s participation, radical measures involving women’s separate organisation have proved more successful than liberal measures designed to overcome barriers to women’s participation. Humphrey (2000) also emphasises the role of self-organisation in promoting a ‘diversified democracy’ and equalities agenda, distinguishing between self-organisation and separatism and arguing that self-organisation derives from exclusion or subordination ‘within a wider polity’ and has the aim of inclusion into that polity, or integration on more equitable terms’ as part of the quest for self-governance (2000: 265). Whilst UNISON retains its commitment to self-organisation, the development of Equality Reps represents a new and different model of addressing inequality, informed by distinctive political and organisational discourses. Humphrey suggests that self-organisation is a way to mobilise groups that are historically

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excluded from the union and to reflect wider social identities in union strategy and activity, but she also acknowledges critiques of self-organisation; their bureaucratisation within the union apparatus and the essentialism and exclusion which may be inherent to identity politics. Briskin (1999: 549) has suggested that increasingly the mainstreaming of women’s issues means that there may be a trend away from women organising in separate structures and towards the integration of equal opportunities into mainstream structures and systems. In response to this she argues that women’s continued success in unions ‘depends upon maintaining a strategic balance between autonomy from the structures and practices of the labor movement, and integration (or mainstreaming) into those structures’. The potential of ERs to represent a range of inequalities may signify a more inclusive approach as one Regional Officer commented: By not putting everything in[to] self-organisation, that allows other people to come in, and that was what they had hoped with equality reps really that it was very clearly an opportunity for other people to get involved. (Regional Officer)

One National Officer suggested: One of the benefits I think about the [equality] rep role is that it means that anybody can be an activist around equalities without having to identify as one of the self organised, as part of one of the groups, who might be experiencing discrimination. So you could have somebody who’s a white middle aged guy who cares about these things and wants to get involved and wants to do stuff and has got lots of good skills to bring to it, and they can do that. Or you might have someone who is disabled or gay, but doesn’t want to be out, but would like to do something. So you can be involved in it without having to be discriminated against or without having to be out. (National Officer)

Two of the ERs interviewed were white heterosexual men who had developed an interest in equality issues, one had a background in male-dominated heavy industry and was now trying to come to terms with working in a more mixed workplace in terms of gender and ethnicity – in this case becoming an ER was about personal education and development. The other also worked in a mixed workforce in a city council: I just thought it would be a good thing to get in on and find out a little bit more about and hopefully help to get a bit of equality across the board, because people always see equality as being a race thing or a gender thing but there are many different types of inequality. And not everybody, including myself, you don’t know a lot about it to be honest, and that’s what I was hoping – one to maybe gain a little bit more knowledge and two to maybe make a difference. (White male ER interviewee in Local Government)

Interviews with ERs suggest that for some their conception of equality may be wider and more abstract than UNISON’s historical focus upon gender, race, sexuality and disability as social divisions requiring specific organisation. As one Regional Officer put it:

274 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k I think it’s because … equalities is such a wide umbrella that nearly everybody has some aspect that they’re particularly interested in, whether it’s from a caring responsibility, whether it’s from discrimination. (Regional Officer)

UNISON’s promotional material for the ER appeals to a general notion of fairness (‘Are you interested in fairness in the workplace?’) and this was reflected by participants when they discussed their motivations, for example, ‘I think everybody should be treated fairly, no matter what race, sexuality and so on’. For one ER: I’m very focused on things being, they should be fair and things should be accessible and equal to all. I don’t like bullies and I don’t like intimidation and things like that. And I think equality should be accessible for all and that should be the norm. (White gay male ER interviewee in utilities)

Similarly for another ER, who was also involved in the Regional Disabled Workers’ Group: I don’t like to see unfairness and I think a lot of people as well, even without meaning to be unfair, do not realise what possibilities there are with adapting hours in work or special provisions. So I do tend to jump in and say well if you go to Occ[upational] Health they can advise you on this and it’s just general day to day things, I just don’t like seeing unfairness. (White female ER interviewee in Local Government)

The interviews may also reflect more recent policy discourses, including those in public sector organisations, which emphasise diversity, rather than equality. At the same time the emergence of ERs resonates with the wider definition of equality contained in the Equality Act 2010 and establishment of the Equality and Human Rights Commission, which provide a new legal and political context that recognises the complexity of disadvantage and the interaction of a wider range of discriminations including class, race, ethnicity, gender, sexuality, disability and age. A national officer anticipated that ERs would ‘pick up broadly the strands of the legislation’, so in addition to covering gender, race and disability they would extend their role to covering new duties including sexual orientation, religion or belief and age. The focus amongst ERs on a wider notion of equality and fairness is distinct from the stronger ideologies that characterised the emergence of self-organisation, through the collective mobilisation of identities ‘embedded in wider histories of social movements’ (Humphrey 2000: 263). Although a number of the ERs were members of SOGs, their narratives often did not articulate a strong sense of identity with one particular group or reflect the kind of self-identified politics that might be expected from such membership. Around two thirds of respondents in the survey reported that there was a Black Workers’ Group, LGBT Group or Disabled Workers’ Group and nearly three quarters a Women’s Group in their branches – 6 of 18 (one third) were Self-Organised Group (SOG) reps. However, in general whilst there were active SOGs at regional level, activity at branch level was weaker. Waddington and Kerr’s (2009: 43) recent examination of UNISON’s

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National Organising and Recruitment Strategy (NORS) questions the role of the SOGs and concludes that they have ‘tended to focus their activities on regional and nationalled activities rather than those at workplace or branch level where NORS activities are concentrated’. Regional officers commented that self organisation, in breaking down equality into strands, could be divisive and isolate the struggle for equality from the branch. They were concerned about the marginalisation of equality and one wanted to see wider representation of those from SOGs on branch committees in a way which would break down barriers to representation. In terms of the ER role in one branch there was a view that some specialisation was an advantage, suggesting how self-organisation and ERs could be complementary: The other equality officer, she’s also the young members officer as well, because although equalities covers the spectrum, the way we sort of envisage it is that although I would have a broad spectrum of all the equalities, it’s nice that you’ve then got a specialist within that role, to look at for example the LGBT strand, young members, disabled members. It’s not saying that only that person will deal with it, it just means that person will take an extra bit of attention and maybe read up more on it so that they become the expert in that. (White male ER interviewee in utilities)

The survey of ERs suggests a close relationship between themselves and the SOGs. A number of ERs were members of regional or (to a lesser degree) branch SOGs. Three of those in the survey were members of the Black Workers’ Group; five of the LGBT group; one of a Disabled Workers’ Group and one of a Women’s Group. Two thirds had attended a branch SOG meeting and just under half a regional equality meeting. One black ER had taken up the role after he had attended UNISON Black Members’ Conference as a new member; he had also just become the Black Members’ Officer. Nine (one half) of the 18 ERs in the survey said that they acted as a link between SOGs and the branch. Equality Representatives who were not involved in SOGs also appeared to be committed to self-organisation as an idea: I think it’s good that you have self-organised groups to cater for people with different needs. I think the only thing you need to be careful with is that the groups don’t become too exclusive and isolated from mainstream society. (White female ER interviewee in Local Government)

There was a view that the development of ERs could potentially stimulate or strengthen self-organisation in the branches – something borne out by one ER: I think it’s [self-organisation] really essential and I think there should be more of it really. In our branch there are two groups, we don’t have a disabled members’ group and I just think that’s really essential to the branch. It’s one of the things I’d like to be involved with as an equality rep. (White female ER interviewee in Local Government)

Equality Representatives were seen as an addition rather than as substituting for or undermining self-organisation: for one regional officer:

276 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k So self-organisation should be part of the package that we’re looking at around the equalities, but it might be mixed in different areas; but it’s an ideal opportunity– the equality reps are an ideal opportunity to get that up and running in branches. (Regional Officer)

Equality Representatives appear to be compatible with self-organisation, despite being distinctive in political terms and having a different organisational basis.

Conclusions An early evaluation of UNISON’s ‘Establishing Equality Reps in UNISON’ pilot project suggests that it is providing new routes to activism for some members, but also attracting existing activists, who may reframe their activity. Whilst the role of the ER could reinforce trends towards the individual representation of workers at the expense of collective organisation, the evidence here supports Healy et al’s (2004) assertion that the line between the individual and collective is often posed too rigidly – there is evidence that ERs were generalising individual equality issues and taking them up collectively. The role of ERs in taking up discrimination and the abuse of managerial prerogative at the level of the workplace should not be devalued and this is particularly true of workplaces in privatised services where there is weak or no union recognition. There remains, however, a danger that the potential exclusion of ERs from collective bargaining and formal representation may reduce them to a secondary type of representative, with the unintentional effect of reproducing social divisions in the workplace in union organisation. ERs appear to have a broad commitment to a general concept of equality and fairness, which appears to be distinct from the politics of self-organisation, although it did not involve a rejection of self-organisation and is compatible with it. This inclusive notion of equality may facilitate a wider involvement in challenging discrimination, whilst the emphasis on the workplace distinguishes ER from SOG activity, which may focus more on the internal processes of the union. Virdee and Grint’s (1994: 205) qualified support for self-organisation was based upon evidence that ‘anti-racism in practice is critically dependent upon the existence and actions of a caucus of black and minority activists, often operating in relative autonomy from – but with the support of – the main union’. The question remains as to whether ERs will be able to mobilise resources to challenge specific forms of discrimination as effectively as self-organised groups can do, or, as Healy and Kirton (2000: 358) put it, to address the structural constraints of union bureaucracy and democracy to achieve ‘the more contested transformational change’. It may be that, as Virdee and Grint (1994: 214) concluded for black and minority ethnic workers, a flexible combination of self-organised groups and more conventional union organisation – accommodating ERs organised at the level of the workplace – is most likely to succeed.

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References Briskin, L. (1999) ‘Autonomy, diversity, and integration: Union women’s separate organizing in North America and Western Europe in the context of restructuring and globalization’, Women’s Studies International Forum, 22:5, 545–554. Colling, T. and Dickens, L. (1989), Equality Bargaining – Why Not?, Manchester: EOC. Danieli, A. (2006) ‘Gender: The missing link in industrial relations research’ Industrial Relations Journal, 37:4, 329–343. Daniels, G. and McIlroy, J. (2009) Trade Unions in a Neoliberal World: British Trade Unions under New Labour, Oxford: Routledge. Healy, G., Bradley, H. and Mukherjee, N. (2004) ‘Individualism and collectivism revisited: a study of black and minority ethnic women’, Industrial Relations Journal, 35:5, 451–466. Healy, G. and Kirton, G. (2000) ‘Women, power and trade union government’. British Journal of Industrial Relations, 35:3, 343–360. Humphrey, J. (2000) ‘Self-organisation and trade union democracy’, Sociological Review, 48:2, 262–282. Jewson, N. and Mason, D. (1986) ‘The theory and practice of equal opportunities policies: liberal and radical approaches’, Sociological Review, 34:2, 307–334. Kirton, G. and Greene, A.-M. (2002) ‘The dynamics of postive action in UK trade anions: The case of women and black members’, Industrial Relations Journal, 33:2, 157–172. Moore, S. (2009) ‘Integrating union learning and organising strategies: case studies of good practice’ Unionlearn Research Paper 8, London: TUC. Parker, J. (2009) ‘Women’s collectivism in context: Women’s groups in UK trade unions’, Industrial Relations Journal, 40:1, 78–97. TUC (2009) Equality Reps Project Report, London: TUC. TUC (2010) TUC Equality Reps Project Extension Report, London: TUC. Virdee, S. and Grint, K. (1994) ‘Black self-organisation in trade unions’, Sociological Review, 42:2, 202–226. Waddington, J. and Kerr, A. (2009) ‘Transforming a trade union? An assessment of the introduction of an organizing initiative’, British Journal of Industrial Relations, 47:1, 27–54. Women and Work Commission (2006) ‘Shaping a Fairer Future’, London: DTI.

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chapter

20 Strategies for Equality:

The Norwegian Experience of the Use of Gender Quotas in the Private Sector CATHRINE SEIERsTAD

Introduction Vertical sex segregation and the lack of women in senior positions, especially in the private sector, politics and academia are global phenomena (Anker 1997; Singh and Vinnicombe 2003; Healy et al. 2005; Dahlerup 2006a, 2006b). This is an indication that gender is a common barrier for women’s career advancement in large corporations worldwide (Acker 2006a, 2006b; Singh and Vinnicombe 2003). The absence of women in decision-making processes in politics (Dahlerup 2006a, 2006b) and corporate boards has become a key concern and important topic globally (Singh and Vinnicombe 2003: 49), both for states and policymakers, as well as researchers. In addition, financial instability and crisis in recent years have affected countries and companies globally, which Huse et al. (2009: 8) argue has given renewed attention to corporate social responsibility (CSR), corporate governance and the composition and roles of board of directors. Consequently, gender representation and the inclusion of women and employee elected members on boards are important in contemporary debates (Huse et al. 2009). Hence the pursuit of equality and inclusion has become a central goal for many countries in recent decades, with a variety of approaches aiming to challenge and potentially change the strong patterns of occupational sex segregation that exist globally. Norway is, together with the other Nordic countries, perceived amongst the most equal countries in the world (World Economic Forum, 2008, Human Development Report, 2007–2008). It has a variety of strategies for promoting equality, yet occupational sex segregation remains resilient, with men controlling the majority of the most senior and powerful positions, especially in the private sector. Singh and Vinnicombe (2004: 486) point out that in the UK context, despite several waves of feminism and 30 years of equal opportunities and equal pay legislation, there is still a long way to go before women make considerable inroads into top boardrooms. This was also the case in Norway, but the

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Norwegian Government, instead of waiting for change, chose to challenge the pattern of vertical sex segregation in the private sector in the corporate boardroom. Consequently, in 2003, the Norwegian Government introduced a much-debated gender representation law applicable to the boards of directors of public limited companies which came into force in 2006. It had a two-year implementation period and required the boards to have at least 40 per cent representation of each sex by January 2008. The law has led to a number of changes within the composition of boards and this chapter seeks to explore some of the early effects of the gender representation law, noting that the Norwegian approach has received international attention both from scholars and policymakers. This chapter starts by illustrating different equality strategies and international trends before presenting data on global equality in order to put the case of Norway in an international context. Following this analysis, Norway’s approach to equality and the use of strategies will be illustrated. Finally, the early effects of the Norwegian gender representation law will be explored. The chapter draws on primary and secondary data, including data collected with Tore Opsahl (Seierstad and Opsahl 2011) looking at the changes within Norwegian boards of directors from 2002–2009, as well as from my doctoral research including 22 interviews with female directors in Norway in 2008. This chapter illustrates that while the gender representation law has challenged and changed gender representation within the boards, there have also been other important effects and experiences.

Equality Strategies and Equality Political leaders often frame the process of achieving gender equality as a kind of national journey for tackling the persistent pattern of inequality between the sexes: Skjeie and Teigen (2005: 187) illustrated how this path towards gender equality is often built on the assumption of gradual equalisation between women and men with respect to power and resources as well as participation and influence. The image of a gradual and harmonious path towards gender equality in a country is represented as a series of steps where the final destination is a gender equal democracy (ibid.). International and non-governmental bodies such as the European Union (EU), International Labour Organisation (ILO) and United Nations (UN), as well as states, all have directives and conventions for improving equality and diversity (Skjeie and Teigen: 2003), but the principles of their equality strategies vary widely. Consequently, even though equality is the political goal, there is great disagreement over why and how to achieve this.

Global Trends of Equality Strategies Although the purpose of all equality strategies is to increase equality among people and between specific groups, various strategies exist (Jewson and Mason 1986; Miller 1996). The liberal perspective tends to focus on soft strategies and the principle of positive action. These strategies have highlighted the need for equality of opportunities (Miller 1996). In contrast the radical perspective has focused on equality of outcomes and the principle of positive discrimination. From such a perspective, hard strategies using quotas and earmarking has been argued for (ibid.). A mid-way approach can be seen in the liberal progressive perspective with the principle of affirmative action (AA),

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moving towards equality of outcome (ibid.). Although the use of radical strategies (AA and positive discrimination) are fundamental approaches in certain countries (for example, Norway), they are not considered appropriate or legal in others, such as the UK (where the softer version, positive action, is favoured). In addition to these perspectives, a set of new approaches has lately emerged. For example, diversity management has turned the debate on equality around by focusing on the business outcomes of employing a diverse workforce instead of justice, moral and ethical issues (Wrench 2005). Strategies for promoting equality are often applied through affirmative action policies. The understanding of affirmative action varies, but Bacchi (1996: x) argued that it can be seen as ‘a generic term for programs which take some kind of initiatives, either voluntary or under the compulsion of law, to increase, maintain, or rearrange the number or status of certain group members usually defined by race or gender within a larger group’. Consequently, it is an approach that has been used by governments or organisations in tackling vertical sex segregation in addition to other forms of inequality and discrimination. As affirmative action can be the preferential selection of a minority group’s members with the aim of eradication preferential selection, it is controversial and debated (Huse et al. 2009). Globally, the strategies in use vary, yet affirmative action has been on the political agenda in many countries (Teigen 2000). Nonetheless, the attitudes towards equality strategies and approaches in use differ. In Norway, affirmative action is considered a key approach. Conversely, in the USA where affirmative action has had a longstanding tradition, the political climate has turned against it and diversity management has become an essential strategy. In fact, diversity management has received a great amount of attention in recent years from academics and policymakers, and become an imperative strategy for companies (Singh and Vinnicombe 2003). In particular, there has been a trend in shifting from equality strategies towards diversity management.

The Norwegian Equality Strategies The Scandinavian countries are known for their comprehensive efforts to reduce occupational sex segregation. In fact, the family and equality policies in Scandinavian countries, and especially Norway, are often used to exemplify successful policies in promoting equality between the sexes, and gender quotas have played a prominent role in Norwegian equality policies – probably even more so than in the other Nordic countries (Skjeie and Teigen 2005: 188). In Norway, gender balance is a political goal (Teigen 2003). An array of strategies for promoting gender equality are in place and a range of initiatives and directives have over the past three decades been introduced with the aim of eliminating discrimination and inequality between the sexes. The Norwegian Gender Equality Act was introduced in 1978 with the aim of improving the position of women (the Norwegian Government 1). An objective is that women and men shall be given equal opportunities in education, employment and cultural and professional advancement. It is stated that public authorities shall make active, targeted and systematic efforts to promote gender equality in all sectors of society. In addition, employers shall make active, targeted and systematic efforts to promote gender equality within their enterprise. Employee and employer organisations shall have a corresponding duty to make such efforts in their spheres of activity. The Equality Act states that direct or indirect differential treatment of women and men is not permitted. However, the Equality Act is open to affirmative action and states that:

282 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Different treatment that promotes gender equality in conformity with the purpose of this Act is not a contravention of section 3 (stating that direct or indirect differential treatment of women and men is not permitted). The same applies to special rights and rules regarding measures that are intended to protect women in connection with pregnancy, childbirth and breastfeeding. (The Norwegian Government 1)

Legally regulated quota arrangement were first introduced on 1981 in section 21 in the Gender Equality Act, which regulates the gender composition of publicly appointed boards, councils and committees. The Act states that: When a public board of directors appoints or elects committees, governing boards, councils, boards, etc. each sex shall be represented as follows: If the committee has two or three members, both sexes shall be represented. If the committee has four or five members, each sex shall be represented by at least two members. If the committee has six to eight members, each sex shall be represented by at least three members. If the committee has nine members, each sex shall be represented by at least four members, and if the committee has a greater number of members, each sex shall be represented by at least 40 per cent of the members. The provisions of nos. 1–4 shall apply correspondingly to the election of deputy members. (The Norwegian Government 1)

For 25 years this was the only kind of quota procedure that was subject to legislation. As will be explored further, the introduction of gender representation on boards of directors in public limited companies is not stated in the Equality Act, it is in the Public Limited Company Act (The Norwegian Government 5) even so, it does have regulations in relation to gender representation on board of directors similar to section 21 in the Equality Act. There are three main areas where AA strategies are in place in Norway. This includes areas of education, employment and politics, and boards. The strategies that are in use include preferential treatment, promotion procedures and minimum representation rules. Table 20.1 illustrates the types and procedures in place.

Table 20.1 Affirmative action strategies in place in Norway Area of Society

Form

Method

Employment (public sector)

Preferential treatment

If candidates’ qualifications are of an equal nature the applicant of the underrepresented sex is given preferential treatment.

Education

Preferential treatment

In cases of equal qualifications, candidates of the underrepresented sex are given priority.

Promoting procedures

There are two variations of promoting procedure for education; additional entry points are given to applicants of the underrepresented sex, or earmarking of student places for candidates of the underrepresented sex, with strict restrictions to qualifications.

S t r a t e g i e s f o r E q u a l i t y 283 Politics

Minimum Voluntary quotas (either of 40 or 50 per cent) on the party representation election lists in five out of the seven major political parties (includes Social Left Party, Labour Party, Centre Party, Christian Party, Liberal Party, excludes the Conservative and Progress Party).

Publicly Minimum A minimum of 40 per cent of each sex to be represented in appointed boards representation publicly appointed boards, councils and committees. and councils Corporate boards

Minimum representation (implemented in 2006)

A minimum of 40 per cent of each sex to be represented on the boards. The law affects several types of companies and the legislation applies to all publicly-owned enterprises (including: state-owned limited liability and public limited companies, state-owned enterprises, companies incorporated by special legislation and inter-municipal companies) and all public limited companies in the private sector. Employee representatives are not included in the law.

Source: Teigen (2003: 17–20), Norwegian Government 3, (Freidenvall, Dahlerup and Skjeie, 2006)

Equality Rankings As illustrated in the previous section, there is an international focus on equality and a variety of strategies are in use. Nevertheless, global data on gender equality shows that equality between the sexes is not achieved anywhere. The Human Development Report (2007–2008) provides a global assessment of countries’ achievements in different areas of human development. Important insights can be gained from the female economic activity rate, gender-related development index (GDI) and gender empowerment measure (GEM). The GDI is a composite index measuring average achievements in the three basic dimensions captured in the human development index (longevity, knowledge, and a decent standard of living) adjusted to account for inequalities between men and women in each country. The GEM, on the other hand, measures gender inequality in economic and political spheres of activity and is made up of two dimensions. First, economic participation and decision-making are measured by the percentage of female administrators and managers, and professional and technical workers; and second, political participation and decision-making are measured by the percentage of seats in parliament held by women (Human Development report, 2005: 270–271). The GEM measure is therefore most relevant to vertical sex segregation. Table 20.2 illustrates the 15 highest GEM ranked countries in the 2007–2008 ranking. It shows large differences between countries and regions and suggests that Norway and the Nordic countries are perceived as the most equal countries.

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Table 20.2 Human development report, equality ranking Country Norway Sweden Finland Denmark Iceland Netherlands Belgium Australia Germany Canada New Zealand Spain Austria United Kingdom United States

Female Economic Activity rate 87 87 86 84 86 77 73 80 77 84 82 66 76 80 82

GEM Rank

GDI Rank

HDI Rank

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

3 5 8 11 1 6 14 2 20 4 18 12 19 10 16

2 6 11 14 1 9 17 3 22 4 19 13 15 16 12

Source: (Human Development Report, 2007–2008).

Norway, with its woman-friendly (Hernes 1987), social democratic (Esping-Andersen 1990) welfare approach and egalitarian society is considered amongst the most gender equal countries in the world; with the female employment rate being almost that of men; as well as being well-represented in politics; and in tertiary educational attainment which is higher among women than men. Nonetheless, Norway has also a high level of segregation in the labour market which is especially prevalent in the private sector where women are underrepresented at higher levels and vertical sex segregation remains resilient (Melkas and Anker 1997). It is seen as a paradox that one of the most equal countries has a strong level of occupational sex segregation, both horizontal and vertical.

The Gender Representation Law on Company Boards of Directors The lack of women in the decision-making processes occurring in the largest companies poses a democratic problem as these companies encompass a large part of society (The Norwegian Government 3). Consequently, the Norwegian gender representation law aims to make the private sector and corporate boards more gender balanced. Norwegian women have been highly underrepresented on boards of directors, the highest level of the most influential firms (Grønmo and Løyning 2003). Randøy et al. (2006) found that Scandinavian boards were surprisingly homogenous, and were highly male dominated. They argued that the low levels of gender diversity seem puzzling given the participation of women in the workforce. This finding was confirmed in a study of all the Norwegian banks and the 200 largest companies by Grønmo and Løyning (2003). As a result, gender representation regulation on boards of directors of public limited companies was proposed and officially suggested in June 2003. The law affects several types of companies and the legislation on gender representation on boards applies to all publicly-owned

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enterprises (including: state-owned limited liability and public limited companies, stateowned enterprises, companies incorporated by special legislation and inter-municipal companies) and all public limited companies in the private sector. There are no rules that have been proposed for privately-owned limited liability companies because most of these companies in Norway are small family enterprises and the owners are themselves members of the board. Public limited companies normally have a broader spread of shares and less personal involvement in the management. Norway has approximately 205,000 limited liability companies (Norwegian Government 3). For publicly-owned companies the law came into force on 1 January 2004, with a two-year implementation period. In the case of the public limited companies, it was a dialogue between the Norwegian Government and the private sector where it was agreed that the amendment for a gender balance on public limited companies’ boards of directors should be withdrawn if the companies voluntarily complied by July 2005. However, this was not the case as the proportion of women was only 16 per cent in 2005 (The Norwegian Government 3). Therefore, the law was introduced in January 2006 with a two-year implementation period ending in January 2008. Table 20.3 shows the minimum percentage of each sex that is required by the law to be represented on boards of different sizes (employee representatives are not included in the law). This indicates roughly a gender balance of 40 per cent overall.

Table 20.3 The requirement for representation of both sexes on public limited companies boards of directors by the gender representation law in Norway Size of board 2 3 4 5 6 7 8 9+

Required representation of each sex 1 1 2 2 3 3 3 40%

Effective minimum % 50 33 50 40 50 43 37.5 40

Source: (The Norwegian Government 3).

The use of gender quotas within the private sector has been controversial. In particular, strong and conflicting opinions from the media, politics and the private sector have challenged the image of Norway as an equal country. Although arguments were raised by the opposition, both in politics and other areas of society, the Norwegian Government argued for introducing gender representation rules based on arguments related to both justice and utility. The Government argued from a justice point of view, pointing to the importance of democracy as equality between the sexes, a fairer society, and a more even distribution of power between the sexes were important factors in introducing the law. Additionally, several arguments of utility and the business case were used. One argument

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is that the legislation is important for the Norwegian economy. The demands for gender balance on company boards ensure that Norway makes use of all the human resources in the country, not just half. The Government also pointed to the fact that women take, to a greater extent than men, higher education, so it is important to use the talent and make use of their competence. In addition, business case arguments related to diversity as having a positive impact on the companies’ bottom line were used. Hence, recruiting more women to the boards will increase the diversity, and thereby influence the bottom line (Norwegian Government 3).

The Effects and Changes Within the Boardroom The end of the implementation period finished on the 1 January 2008, and consequently there have over the last few years been significant changes within the Norwegian boards of directors. This section will illustrate some of the early findings and effects of the law. The areas that will be explored are the share of women on boards of director, as chairs, and as prominent directors. In addition, this section will present some views and experiences from women.

Norwegian Companies’ Compliance with the Law When the legislation came into force and became applicable to all public limited companies in January 2008, most of these companies in Norway had complied with the law (The Norwegian Government 3). Seierstad and Opsahl (2011)1 aimed to explore some of the early effects and the impact of the Norwegian gender representation law on equality among directors. Although it is stated in the law that the share of women must increase, we also examined whether companies have continued to increase the proportion of female directors beyond the minimum requirement. Moreover, we assessed the extent to which it has affected the most senior positions, such as the gender of the chair as well as the directors’ prominence (that is, possession of multiple directorships). We found that from 2002 to 2009 there was an increase in the number of directors. The total number of directors on the boards included in this study rose from 1,009 to 1,650 and the number of women amongst the directors rose from 91 to 620. This means that amongst the directors on these boards, 37.5 per cent are women. Table 20.4 illustrates the percentage of female directors on boards, as well as the percentage of female directors, excluding employee representatives, from 2002–2009 (employee representatives are not covered by the law and do not have the same gender representation requirements).

1 To test our hypotheses, we collected a list of all the 384 public limited companies in Norway (Allmennaksjeselskap or ASA) that were available online through the Norwegian Business Register on 5 August 2009. Based on the list of companies, we collected all official announcements made to the register that were online. These announcements contain changes to the composition of the boards of directors since 1 November 1999.

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Table 20.4 Women’s representation on boards Date

Percentage of women on board

Percentage of women on boards excluding employee representatives

January 2003

9

8.1

January 2004

9.7

9.1

January 2005

11.7

11.4

January 2006

16.9

17.1

January 2007

25.3

25.7

January 2008

36

36.8

January 2009

40.1

41.1

Source: Seierstad and Opsahl, 2011.

We found that a substantial increase in the proportion of female directors occurred only during the implementation period, and especially towards the end of the period. This suggests that the law has challenged the under-representation of women on public limited companies’ boards of directors, and made the boards appear more democratic and equal. This indicates that the hard strategy of legislation was a successful tool for improving the gender balance, which could guide international policymakers. The analysis also shows that even though companies have complied with the law, it is evident that companies have reached their minimum target for gender representation, but the female share is not higher than the minimum requirements. This again suggests that companies are simply complying with the law, and not moving towards further equality between the sexes. Turning to the most senior position within the board, the chair, it is clear that these positions are still male dominated. Table 20.5 shows how the percentage of women in these positions has changed from 2003–2009.

Table 20.5 Share of women as chairs on boards Date

Percentage of female chairs on boards

January 2003

2.7

January 2004

2.9

January 2005

3.1

January 2006

3.4

January 2007

3.5

January 2008

4.0

January 2009

4.0

July 2009

4.0

Source: Seierstad and Opsahl, 2011.

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Table 20.5 shows that still few boards are chaired by a woman and that during the observation period, the proportion of boards led by a woman only increased from two percent to four percent. In addition, two thirds of this increase occurred before the implementation period (January 2006). This suggests that the law has only had a marginal effect on the gender of the chair and the boards appear internally segregated. As women have not gained a substantial increase in access to the most influential position on the corporate boards in the period of the law, this might indicate that there are still barriers for women. The gender representation law has received a lot of media attention, both nationally and internationally. Particularly, the media has highlighted that certain female directors have attained a large number of directorships. These directors have been named the ‘Golden Skirts’ by newspapers like the Financial Times (in Norway the gender neutral term ‘styregrossist’ is used). Seierstad and Opsahl (2011) found that the number of directors sitting on more than one board, referred to as ‘prominent directors’, increased substantially during the observation period. More specifically, the number of prominent directors rose from 91 to 224 between 2002 and 2009. Moreover, the maximum number of directorships that a single director holds has doubled. Specifically, in May 2002, one female and two males were the most prominent directors by being members of four public limited company boards each, whereas in August 2009, one female director held eight directorships. At the beginning of the observation period, only seven of the 91 prominent directors were women. The gender balance among prominent directors changed considerably during the period, and by 2009, 107 women and 117 men were prominent directors. Thus, the increase in prominent directors is mainly driven by an increase in the number of female directors. More specifically, if only considering directors with at least three directorships, 61.4 per cent of them are women. When considering directors with seven or more directorships, all are women. Consequently, women have not only entered the boardrooms, a select group have also become the most prominent directors. Since this benefit is only enjoyed by a few directors and associated with a specific gender, the intention of the Norwegian Government in creating a more equal setting can be questioned as a group of ‘Golden Skirts’ has emerged. It can be seen that creating an external shock through legislative mandate might create a temporary shortage of visible qualified women available to take up such positions. The easy implementation for legal compliance is therefore to select from among the visible available women directors with governance experience. This repeated use of a select few available women creates the ‘Golden Skirts’ phenomenon. One could anticipate that supply of eligible women directors would increase over time, and such prominence effects could decrease. However, at this time, the prominence of few women members largely skews the equality debate.

Women’s Views of the Law and Experience in the Boardroom As the previous sections illustrated, the new gender representation law has given a great share of women access to the boardroom. Consequently, an interesting aspect is how they experience these changes the law has enforced. My doctoral research, including 22 semi-structured in-depth interviews with women who are directors in Norway, found that they generally have a positive attitude to the gender representation law, or at least see the need for the law. Even though quite a few of

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the women admitted that they were initially sceptical of the gender representation law, after experiencing and seeing many talented women getting opportunities and becoming directors, they changed their attitudes and are now positive about the law. Nevertheless, it was also emphasised how they, in principle, are sceptical about the use of quotas and how their support is specific to this setting. In addition, the directors underline how they hope that the law will be unnecessary in the future.

Has the Law Affected Women’s Opportunities? As the law has lead to significant changes within the boards and, as illustrated, the share of women has risen dramatically in recent years and women are relatively supportive of the law, it is interesting to see whether female directors feel this has affected their opportunities. It is apparent that the women are very aware that the new quota law gave them opportunities which they did not have a few years ago, yet they viewed this as unproblematic, as this prominent director describes: I see it as an opportunity; I will still have to prove that I am good enough. I hope that other women see it as an opportunity as well. I know women, experienced women, who say ‘I don’t want to get a position because of quotas’. But even Gro Harlem Brundtland 2 says she would not be where she is today if it wasn’t for quotas in politics when she was young. I don’t understand why we (women) have to be so sensitive about it; you get an opportunity, if you don’t deliver you are out! The only way to view quotas is as an opportunity.

This prominent director also illustrates how she feels about the issue: I agree that it is not nice to think that you are only there because you are a woman and they had to take you on. But on the other hand, I would never be a member of any boards if I didn’t feel I was competent and qualified for it. I know that my background is very good and suitable for the boards I sit on, better than most of the men’s. But I do think that if it wasn’t for the law they wouldn’t have looked outside ‘their’ group. The way I see it; I have the background and the qualifications, the law gives me an opportunity to demonstrate that I am more than good enough. But I don’t believe that I would have been considered for these boards of directors before the law. Nevertheless now, a nice thing for me is that I have been asked to be a director on boards of companies not affected by the law. Consequently, they have noticed that I’m good; they don’t need to have me, they would like to have me.

Several of the other directors also describe how after being director on one board they have been asked to be a director for other companies, including those not affected by the law, both nationally and internationally. This clearly indicates how important the gender representation law has been for these women. By being made ‘visible’ they gained new opportunities without a law ‘making’ companies choose them.

2 Gro Harlem Brundtland is the first female Norwegian Prime Minister. She was extremely popular both during her time as Prime Minister and after.

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In the Boardroom, are the Female Directors Treated with Respect? Even though the vast majority of the women experienced being treated with respect in the boardroom, a couple of women did tell stories of how they experienced gendered practices in the boardroom. One participant gave insights into the gendered behaviour in the boardroom setting and her role in this way: We discuss financial problems and management strategies; men take up a lot of space; they ‘show’ their intelligence and competence. At the same time they hug me; they hug me when I come and hug me when I leave. I’m not used to those mechanisms. I am used to deciding for myself who I shall hug. The boards I have been on have been highly male dominated, only one or two women. You are allowed to be there if you are their protégé, but you are not allowed to be there if you have an opinion.

An interesting aspect illustrated by several of the directors is how they actually experienced more scepticism outside of the boardroom, from society and the media who, to a greater extent, questioned women’s competence. This indicates that even though Norway is perceived amongst the most equal countries on international rankings, cultural expectations and gender stereotypes are embedded in society and workplaces.

Conclusion This chapter has illustrated that globally there exists a variety of strategies for promoting equality between the sexes, and in Norway affirmative action and the use of quotas are in place in several areas of the labour market. The focus in this chapter is the gender representation law newly introduced for public limited companies and the early effects and experiences of this law. It is evident that the law has successfully challenged the under-representation of women on public limited companies’ boards of directors, and made the boards appear more democratic and equal. This indicates that the hard strategy of legislation was a successful tool for improving the gender balance. However, while the minimum representation level has been met, the share of women has not increased further. In addition, women are not represented at the highest level within the boards, as the share of companies with a female chair has been low and stable from 2002 to 2009. This might indicate that there are still organisational barriers that women face but which men do not. In addition, the analysis indicates possible counter-effects of the law. Although more women have entered the boardrooms, differences among directors have arisen when looking at additional proxies for influence on corporate boards. The maximum number of boards on which a single director sits has increased considerably. This has led to the concentration of the benefits associated with prominence to a select few. Moreover, women have not only entered the boardrooms, a select group of them have also become the most prominent directors. Since this benefit is only enjoyed by a few directors and associated with a particular gender, the intention of the Norwegian Government in creating a more equal setting can be questioned as a new elite of ‘golden skirts’ has emerged. In addition, this chapter has illustrated views and experiences of women who have, often due to the law, taken up positions as directors on boards. In general the women

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now see the law as necessary since they found it problematic that women were an ‘untapped’ resource. As a result they see the law as beneficial, both for women getting opportunities as well as for the boards and society, which take advantage of the resources women possess. The women interviewed for my research are very aware of how the law has given them opportunities, yet view this as unproblematic. They still feel the need to prove that they are good enough as the law only helps women get access to the boards, but does not guarantee that they will stay there. In addition, the majority of the women describe how they are treated with respect in the board setting, but have experienced being questioned by the wider society including the media. This indicates that Norway, even though perceived as equal, has different cultural expectations for men and women and that gender stereotypes are indeed also present in Norwegian society. As occupational sex segregation and different labour market experiences for men and women exist, even in one of the most equal countries, it is a clear indication that there remains a need for new and additional strategies for promoting gender equality around 30 years after the introduction of equality legislation aiming to challenge this. As a result, I argue for quotas in some settings being useful tools for counteracting the conscious and unconscious discrimination that exists in society and the labour market.

References Acker, J. (2006a) Class Questions: Feminist Answers. Lanham, MD: Rowman & Littlefield Publishers Inc. —— (2006b) ‘Inequality regimes: Gender, class, and race in organizations’. Gender and Society, 20: 441–464. Anker, R. (1997) ‘Theories of occupational segregation by sex: An overview’ International Labour Review, 136: 315–339. Bacchi, C.L. (1996) The Politics of Affirmative Action: ‘women’, Equality & Category Politics, London: Sage Publications. Dahlerup, D. (2006a) Women, Quotas and Politics, New York: Routledge —— (2006b) Quota Project Global Database of Quotas for Women, http://www.quotaproject.org/ aboutQuotas.cfm. Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism, London: Polity Press. —— (2002) Why We Need a Welfare State, Oxford: Oxford University Press. Grønmo, S. and Løyning, T. (2003) Sosiale nettverk og økonomisk makt [Social Networks and Economic Power], Bergen: Fagbokforlaget. Healy, G., Ozbilgin, M. and Aliefendioglu, H. (2005) ‘Academic employment and gender: A Turkish challenge to vertical sex segregation.’ European Journal of Industrial Relations, 11(2): 247–264. Hernes, H. (1987) Welfare State and Women Power – Essays in State Feminism, Oslo: Norwegian University Press. Human Development Report 2005, http://hdr.undp.org/statistics/data/indic/indic_246_1_1.html Human Development Report 2007–2008, http://hdrstats.undp.org/en/indicators/#G Huse, M., Nielsen, S.T. and Hagen, I.M. (2009) ‘Women and employee elected board members, and their contributions to board control tasks’, Journal of Business Ethics, 89(4): 581–597. Jewson, N. and Mason, D. (1986) ‘The theory and practice of equality policies; liberal and radical approaches’, The Sociological Review, 34(2): 307–334.

292 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Mandel, H. and Semyonov, M. (2005) ‘A welfare state paradox: State interventions and women’s employment opportunities in 22 countries’, American Journal of Sociology, 111: 1910–1949. Melkas, H. and Anker, R. (1997) ‘Occupational segregation by sex in Nordic countries: An empirical investigation’, International Labour Review, 136: 341–363. Miller, D. (1996) ‘Equality management: Towards a materialist approach’, Gender Work and Organisation, 3(4): 202–214. Norwegian Government 1: http://www.regjeringen.no/en/doc/Laws/Acts/The-Act-relating-to-GenderEquality-the-.html?id=454568ment. Norwegian Government 2; http://www.regjeringen.no/nb/dep/bld/tema/likestillingsomradet/Handout-Gender-on-Boards.html?id=416864 Norwegian Government 3: http://www.regjeringen.no/en/dep/bld/Topics/Equality/rules-on-genderrepresentation-on-compan.html?id=416864 Norwegian Government 4: http://www.regjeringen.no/en/dep/bld/Topics/Equality/kjonn_og_makt/ kjonnsbalanse-i-styrer.html?id=439465= Norwegian Government 5: http://www.stortinget.no/no/Saker-og-publikasjoner/Vedtak/Beslutninger/ Odelstinget/2006–2007/beso-200607-010 Norwegian Government 6: http://www.regjeringen.no/Rpub/OTP/20022003/097/PDFS/OTP20022003 0097000DDDPDFS.pdf Randøy, T., Thomsen, S. and Oxelheim, L. (2006) ‘A Nordic perspective on corporate board diversity’. Oslo: Working Paper Nordic Innovation Centre Seierstad, C. (2009) ‘A change in representation on Norwegian boards of directors: Compliance, prominence, and women’s experience’. Conference paper presented at Equal Opportunities International 2009, Istanbul. Seierstad, C. and Opsahl, T. (2011) ‘For the few, not the many: The effects of affirmative action on presence, prominence, and social capital of female directors in Norway’. Scandinavian Journal of Management, 27(1). Singh, V. and Vinnicombe, S. (2003) ‘The 2002 female FTSE index and women directors’, Women in Management Review, 18(17): 349–358. —— (2004) ‘Why so few women directors in top UK boardrooms? Evidence and theoretical explanations.’ Corporate Governance: An International Review, 12(4): 479–488. Skjeie, H. and Teigen, M. (2003) Menn imellom (Among Men), Oslo: Gyldendal. —— (2005) ‘Political constructions of gender equality: Travelling towards a gender balanced society?’ Nordic Journal of Feminist and Gender Research, (NORA), 13(3): 187–197. Taylor-Carter, M., Doverspike, D. and Cook, C. (1995) ‘Understanding resistance to sex and race-based affirmative action: a review of research findings’, Human Resource Management Review, 5(2): 129–157. Teigen M. (2000) ‘The affirmative action controversy’, Nordic Journal of Feminist and Gender Research (NORA), 8(2): 63–77. —— (2003) Kvotering og kontrovers –om likestilling og politikk [Quotas and Controversies – Equality and Politics], Norway:Unipax. —— (2006) Det kjønnssegregerte arbeidslivet –En kunnskapsoversikt [The Sex Segregated Labour Market – An Overview], Institutt for Samfunnsforskning. World Economic Forum (2005) ‘Women’s empowerment: measuring the Global Gender Gap’: http:// www.weforum.org/pdf/Global_Competitiveness_Reports/Reports/gender_gap.pdf —— (2008) The Global Gender Gap Report 2008: http://www.weforum.org/en/Communities/Wom en%20Leaders%20and%20Gender%20Parity/GenderGapNetwork/index.htm Wrench, J. (2005) ‘Diversity management can be bad for you’, Race and Class, 46(3): 73–84.

chapter

21 Tackling Gender

Segregation in the UK Transport and Construction Sectors: Recent Initiatives and Procurement Strategies TESSA WRIGHt

Introduction Occupational gender segregation has long been recognised as one of the three main causes of the persistent gender pay gap, as demonstrated by several reviews of women’s pay. Lately both national and regional funding has been made available to address this, with a focus on supporting women to enter male-dominated occupations. This chapter examines some recent initiatives, based on research in the transport and construction sectors. After examining the link between women’s unequal pay and occupational segregation and presenting evidence of the persistence of gender segregation in the two highlighted sectors, the chapter discusses several recent initiatives in London that address the barriers to women in entering male-dominated work. In doing so, it draws on interviews with experts involved in initiatives designed to improve women’s participation in maledominated occupations, as well as interviews with women working in these sectors. Experts interviewed propose a range of strategies to increase the participation of women in male-dominated work, with some focusing on the labour supply side, for example, by pressing for greater awareness-raising among girls and women of nontraditional career opportunities. However this is only part of the solution, and many experts agree that attention to the labour demand side is also needed, for example, through interventions to urge employers to pay serious attention to the recruitment and retention of women in traditionally male work. This chapter highlights one strategy that some public sector organisations are beginning to use to address inequality – linking equality to the procurement process. It shows how equality requirements can be built into contracts issued to private sector firms by public organisations, and how these may be used to

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promote opportunities for women in male-dominated sectors, and gives examples from my research of how this is being used in transport and construction projects in London. It also considers whether provisions in the Equality Act 2010 may provide further support to those trying to ensure procurement processes achieve equality objectives, and argues that procurement may become an area of increasing focus for equality activity. So far little has been written on the results of using procurement to address equality objectives, but evidence from existing research will be discussed in this chapter.

Why Tackling Occupational Gender Segregation Matters Occupational gender segregation has been identified as one of the three principal causes of the persistent pay gap in the UK between men and women, alongside the unequal impact of women’s family responsibilities and pay discrimination (EOC 2001). Occupational segregation includes both ‘horizontal’ segregation, in which women are concentrated into just ten occupations – predominantly low-paying ones – and ‘vertical’ segregation which limits women’s progress into higher-paid positions. Under recent Labour governments there has been considerable concern about the gender pay gap – women’s average hourly pay (excluding overtime) is still 16.4 per cent less than men’s pay (National Statistics 2009). Several high-profile reports and enquiries have recently examined the issue of women’s pay (EOC 2001; Kingsmill 2001; Women and Work Commission 2006) and the former Equal Opportunities Commission (EOC) (now part of the Equality and Human Rights Commission (EHRC)) undertook a formal investigation into gender segregation in work and training, focusing on the Modern Apprenticeship system (EOC 2004). Further measures to make pay inequality more visible are also included in the Equality Act 2010 but rely on secondary legislation and therefore require continued support from the current government (See Dawson, Chapter 6). In addition to the emphasis on equality and fairness in relation to women’s pay and participation in the labour market, ‘business case’ arguments have been put forward for tackling occupational gender segregation, highlighting the skills shortages identified in many male-dominated occupations and arguing that these can be addressed by training more women to enter such occupations (EOC 2004). The Women and Work Commission estimated that the productive potential of the economy could be increased by between £2 billion and £9 billion if women were to move into higher-paid occupations or highergrade roles in their current occupations (Women and Work Commission 2006: 6). This concern about the effects of occupational segregation on women’s pay, on skills shortages and on the economy more widely has been translated into money for policy initiatives to address training and skills, with £40 million of government funding initially made available for improving women’s skill levels, with a focus on male-dominated occupations. This included £10 million through the Women and Work Sector Pathways initiative to develop projects providing women with skills, confidence and mentoring to move into or progress within male-dominated occupations (DCLG 2007). In March 2008, a further £5 million a year for three years was awarded to this initiative, with the construction industry chosen as one of the sectors to receive continued funding and passenger transport introduced in phase two. In addition to government resources, funding has been provided regionally through the London Development Agency (LDA) to projects aimed at supporting women into

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traditionally male work, supporting its key strategic gender priorities of reducing the gender pay gap and occupational segregation in London (LDA 2007).

Barriers to Non-Traditional Work The construction and transport sectors remain the two most heavily male-dominated industrial sectors in the UK – 90 per cent of construction workers are male and 76 per cent of those in transport, storage and communication are men (EOC 2006: 21). Furthermore, construction has seen no improvement in the proportions of women in employment since 1972 (EOC 2006), despite efforts by the industry to train and recruit more women (Gurjao 2006). Women account for less than one per cent of craft and trades occupations and eleven per cent of construction design and management occupations in the UK (LFS Spring 2004). Data on women working in transport occupations from the Labour Force Survey (LFS) 2003 (Hamilton et al. 2005), shows a similar pattern, with women representing only 9 per cent of all transport occupations, but most likely to be found in leisure and travel service occupations (56 per cent of those employed) or in administrative roles as transport and distribution clerks (30 per cent of employees). Only 11 per cent of managers in transport are women and they account for only 4 per cent of transport drivers and operatives. There are a number of explanations for occupational gender segregation, which broadly divide into those that emphasise labour supply and labour demand factors. Labour supply theories tend to emphasise the factors that lead women to ‘prefer’ certain female-dominated occupations, whereas labour demand theories focus on why employers tend to select women and men for different jobs and the barriers to progression within firms (Anker 1997). However women’s ‘preferences’ may be constrained by a number of factors including the availability of flexible working hours, as well as gendered assumptions about who is suitable for certain occupations, affecting both employee and employer perceptions. Male workplace cultures may also deter women from apply to, or remaining in, male-dominated work, and physical obstacles such as lack of toilet facilities or suitable protective clothing may also make women feel unwelcome in certain occupations. Furthermore, such male cultures may be deliberately maintained by exclusionary or controlling behaviours, for example sexual harassment of women workers (Cockburn 1991). (For further discussion of how gender and sexuality intersect in women’s choices relating to, and experience of, male-dominated workplaces, see Wright (2011). Thus a range of strategies targeted at both individual women and organisational practices are required in order to tackle occupational gender segregation. Evidence from experts on recent projects employing some of these strategies is discussed below.

Methodology The chapter presents some findings from qualitative research conducted in the UK transport and construction sectors which collected data primarily by means of semi-structured interviews and focus groups. The research explores the intersections of gender, sexuality and class in non-traditionally female work using qualitative methods: 38 interviews

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were conducted with heterosexual women and lesbians working in the construction and transport sectors. The sample contains a balance of women working in professional and in manual occupations within the two sectors. In addition, information about the contemporary context of measures to address ongoing gender segregation in these sectors was gathered through interviews with 15 selected experts on the employment of women in non-traditionally female work, representing industry and training bodies, employers, trade unions, women’s networks and voluntary organisations. The experts were selected on the basis of their organisation’s role in the two sectors under consideration and because they were known to be involved in actions to address women’s under-representation in non-traditionally female work. This chapter primarily discusses evidence from the interviews with key experts, but also presents views of women interviewees working in transport and construction. Although some experts represented national organisations, the examples of specific initiatives discussed here are based in London, where most of the research was carried out.

Awareness of Non-Traditional Occupations Some of the experts interviewed for this research emphasised the need to address the ‘supply’ side through activities to promote non-traditional work to women and girls. The Women into Non-Traditional Occupations project was funded by the London Development Agency (LDA) between 2006 and 2009 as part of the LDA’s commitment to addressing women’s low pay and occupational segregation (LDA 2007). The project was established to raise awareness among women in London about jobs in non-traditional areas (focusing on a small number of sectors, including construction and transport) by putting on events with inspirational women speakers already working in such jobs, offering ‘taster days’ for women to see what the work involves, and practical job-search preparation and support. The project had no difficulty in attracting women to their events, and, according to the project coordinator, demonstrated that many women are interested in this type of work. During the project around 400 women attended non-traditional occupation open days and over 1,000 women received employment support. Several interviewees felt that more should be done to educate girls about the opportunities to work in non-traditional areas. Girls often lack information about training and career options in non-traditional work, however a survey of school pupils by the former Equal Opportunities Commission (EOC) found a much higher level of interest in non-traditional work choices than generally thought: more than a third of girls said they definitely would consider a non-traditional job, 44 per cent said they might, and 12 per cent in England and 11 per cent in Wales expressed a specific interest in construction work (EOC 2005: 10). Some interviewees were also ‘Construction Ambassadors’, a scheme run by the sector skills council ConstructionSkills to promote the industry to school students as a potential career. Although not solely aimed at girls, a high proportion of Ambassadors are women, some of whom are motivated by a desire to encourage girls to consider the industry, as expressed by Tanya, a senior surveyor: I became a construction ambassador a few years ago because I’m quite into just telling kids about careers within the industry, especially girls, because a lot of them just think it’s

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Tanya firmly believed that construction firms offered a more professional and comfortable working environment for women than when she first started 14 years ago, at least for those in professions such as surveying. It was also thought that the manual trades were attracting more women: an interviewee from Women and Manual Trades (WAMT), the national organisation for tradeswomen and those training in the trades, had observed a change in attitudes among young women: I think what’s changing is women going in from school and from a young age … I went in when I was 30 and a lot of women of my generation went into it when they were more mature. … Young women, I think, are starting to choose it, and being more confident.

Employer Resistance Evidence bears out this perception of an increase in women entering the trades, with women accounting for nearly nine per cent of first year trainees on construction courses in Further Education colleges in London, higher than in other parts of the UK (Construction Industry Training Board (CITB) 2005 cited in GLA 2007). Yet just 1.3 per cent of manual construction workers in London are women (GLA 2007). This suggests that even when women or girls do choose non-traditional careers, they then face barriers in gaining employment, lending support to labour demand explanations for occupational gender segregation. Research shows that while women often have higher formal qualifications than men, they do not succeed in getting work: in construction, work experience is crucial for getting employment and this may be harder for women to acquire due to informal and discriminatory recruitment practices (GLA 2007). Research on the building of Heathrow Terminal 5 found that despite commitments by the client British Airports Authority (BAA) to encourage a diverse workforce and recruit local labour, in reality few women and local people gained work on the project, with one of the main reasons being the lack of work experience placements available to those studying in local colleges (Clarke and Gribling 2008). The authors concluded that there was no shortage of those in the target groups for recruitment (including women and ethnic minorities) looking to train and work in the industry. For tradeswomen the gap between formal training and gaining work experience and employment is also well known to WAMT. Formal qualifications achieved in college need to be complemented by practical work placements in order to gain a National Vocational Qualification (NVQ) level 2 and therefore get work. Colleges do not provide placements for students, who must find their own, but these are particularly hard for women to find, with employers reluctant to ‘take a chance’ on a woman, as an interviewee from WAMT explained: They’re writing to employers, who, as soon as they see a woman’s name on it, especially with electricians and plumbers ... What happened is, plumbing got a huge amount of publicity in the last couple of years about what you can earn and that brought a lot of people in [...] But basically we’ve got too many people who are trained as plumbers and not enough plumbing

298 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k placements. That’s the crux of it and to get a plumbing placement is like gold dust, so is a firm that mainly employs fellas going to take a chance on a woman?

To address this and provide opportunities for women to get practical experience on construction sites, WAMT established the Building Work for Women project (also funded by the London Development Agency). Like the WINTO project discussed above, Building Work for Women found no shortage of women interested in taking part: they approached some colleges where women were doing training in the trades and found it snowballed from there. The project provided support for 153 women, including work placements, help with gaining the card and first aid certificates needed to work on construction sites, and financial support for tools, protective clothing, driving lessons and childcare. It also assisted more than 30 women to gain employment. In addition to preparing the women for work by helping them acquire the necessary certification and practical tools, WAMT’s key role was in persuading employers to take on women on work placements: the project manager believed that the project was very valuable in; Helping women to enter the industry, breaking down the barriers of employer prejudice. You have to be very determined to do this as an individual, but we can help in selling the benefits of a diverse workforce to employers.

The London Olympics, to be held in 2012, is also being seen as an opportunity to address the under-representation of women and other groups in construction. Specific measures have been established by the Olympic Delivery Authority (ODA), such as the Women’s Project, aiming to provide work experience for 65 women on the Olympic construction site, and jobs for 15 women in manual trades. However the project manager interviewed for this research was confident that this target would be exceeded. The project has also found no difficulty in recruiting women, who were driving diggers and dumpers as part of the early stages of the construction of the Olympic site. They received training at the site’s plant training centre and, according to the project manager, ‘they absolutely love it’. Additionally, the Women’s Project has a formal role in monitoring applications for jobs on site, and is able to ask questions of contractors who constantly fail to appoint women: ‘if they consistently choose men then we make a fuss about it and we want to know why’. The project has also been involved in urging companies to take on apprentices and was aiming for 50 per cent of these to be women, and had received many applications from women wanting these opportunities. The project manager believes the project has the potential to set an example to the construction industry of how they can increase the numbers of women: The Olympics is a high-profile site, and if we raise the profile of women on the Olympics we are raising the profile of women in construction generally, that’s the idea. And also that other publicly-funded builds may follow our example of facilitating women onto site. So this Women’s Project, they are hoping to extend it, we are just for the Olympic stadium and the Olympic buildings. They are hoping to extend it to the Village, which is a separate build, they are hoping to extend the same principle of employing local people and giving jobs to women.

This project then is addressing the issue of women’s low participation in construction work in a number of ways. The high public profile of the Olympics offers a chance to raise

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awareness of women working in construction. Indeed on a visit to the Women’s Project in 2008, the then Olympic Minister Tessa Jowell said: Not only will this programme help more women get construction jobs working on the Games, but also make a significant contribution to breaking down gender barriers within the industry as a whole. (ODA 2 December 2008)

Additionally, through its role in monitoring job applications for work at the site, the project can also identify employers who seem resistant to employing women and is in a position to challenge their recruitment practices. In this way a publicly-funded project is able to monitor and influence the actions of its contractors in terms of employment, which will be discussed further below.

Political Will The initiatives discussed above highlight that targeted measures are necessary in order to produce change in sectors that have proved highly resistant to any alteration in their gender balance. A historical perspective on the construction industry in Britain (Clarke and Wall 2004) illustrates moments when women increased their numbers in the industry, for example during the two World Wars of the twentieth century and in the 1970s and 1980s when local authority building departments took measures to recruit women. Indeed Clarke and Wall (2004) argue that the key factor that explains the inclusion of women at certain stages is ‘political will’. They add: The gender division of labour does not change by itself but requires effective regulation and training and this is only founded on concerted political effort. (Ibid.: 25)

The political efforts of the 1970s and 1980s to get women into the manual trades in London combined feminist campaigning (in particular through Women and Manual Trades), commitment from the then Labour-led Greater London Council (GLC), women’s training workshops (supported by local authorities and the European Social Fund), the equal opportunities policies of Labour-run local authorities and the support of construction union Union of Construction, Allied Trades and Technicians (UCATT) (Wall 2004). Close links between the women’s training workshops and the Direct Labour Organisations (DLOs) of certain Inner London boroughs meant that many tradeswomen gained work, with 266 women working in just 7 Inner London DLOs in 1989 (Pyke 1989, cited in Clarke and Wall 2004). These were exciting times, recalls Wall (2004: 167), who herself trained and worked as a carpenter during the 1970s and 1980s: For a few exciting years in Inner London it seemed as though women were at last gaining some foothold in the most gender-segregated industry of all time.

While the political and economic context of the first decade of the twenty-first century differs from the 1970s and 80s, it is worth noting the role of London-wide government in

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both the progress reported by Wall in the 1970s to 1980s and in recent years. The Greater London Council of the time, headed by Ken Livingstone, was known for its commitment to equal opportunities, until its abolition by Conservative Prime Minister Margaret Thatcher in 1986. When a city-wide level of government was restored to London in 2000 with the Greater London Authority (GLA), made up of the Mayor of London and the 25-member London Assembly, Ken Livingstone became the first elected Mayor of London. From its formation, the GLA has actively pursued equality and diversity strategies covering all the equality strands, also reflected in the policies of the London Development Agency, part of the ‘GLA family’, which is responsible to the Mayor. However since Ken Livingstone lost the Mayoral election to the Conservative Boris Johnson in 2008, some have expressed fears that the proactive policies of the GLA on reducing occupational gender segregation will not be sustained (Wright 2009). The national political context differed however from the period of Conservative government from 1979 discussed by Wall, and we have already seen that the Labour governments from 1997 to 2010 put the issue of women’s unequal pay on the agenda, although did not go as far as many would like, and the Equality Act 2010 has been seen as a ‘missed opportunity’ to further reform equal pay law (EOR 2010). Nevertheless, a range of equality legislation was passed (Dickens 2007), including the Equality Act 2006 which introduced a Gender Equality Duty requiring public bodies to have ‘due regard’ to promoting equality of opportunity when exercising public functions (see Conley, Chapter 2). As part of the Gender Duty, public bodies had to produce a gender equality scheme which, where the political will existed, could be ambitious documents, for example, the gender equality schemes of the GLA, the ODA, the LDA and Transport for London (TfL) all pledged action to improve women’s employment in under-represented areas. But as Conley (Chapter 2) points out, this requirement was weakened during the consultation on the Equality Bill, meaning that public authorities without sufficient commitment to tackling inequality may face fewer requirements to do so. The public sector equality duties have, nevertheless, been a driver for some public bodies to argue that private sector contractors that deliver services should also be required to show that they are taking steps to promote equality and diversity among their workforces, thus linking public procurement and equality, which is discussed in the following section.

Procurement During the 1980s some local authorities attempted to use public sector contracts to require contractors to undertake equality measures, but these were stopped by legal changes in 1988 by the Conservative government that prevented local authorities from taking into account ‘non-commercial’ factors in the awarding of contracts (Dickens 2007: 485). Following the election of a Labour government in 1997 there was a move away from the Thatcherite Conservative approach to procurement and a renewed interest in using procurement to achieve equality outcomes (McCrudden 2009). Questions concerning the legality within European law of using procurement as part of the equality agenda have largely been resolved, according to McCrudden (2009). The Women and Work Commission’s (2006) report on the gender pay gap noted the role procurement policy could play in addressing gender pay inequality and recommended that the government

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take a lead in providing guidance and promoting good practice in procurement by public authorities. Some government documents began to signal an encouragement to consider equality in procurement processes (OGC 2008) and some departments took steps to link race equality to procurement. Three government departments – the Department for Work and Pensions, the Department for Children, Schools and Families and the Identity and Passport Service – were involved in procurement pilots to achieve better race equality outcomes in the procurement of services through introducing equality requirements into contracts with suppliers (Djan Tackey et al. 2009). The use of procurement was also promoted by the Government Equalities Office as part of its package of measures to narrow the gender pay gap, with the possibility of a Kitemark scheme being introduced (Government Equalities Office 2009a). The public sector equality duties have provided a further incentive to link procurement and equality. While some debate took place over whether procurement was a public function, the consensus now seems to be that it is included (McCrudden 2009). The consultation on the Equality Bill made it clear that procurement can be used to drive equality, as part of the extended equality duty (Government Equalities Office 2009b), which will be discussed further below. Research by the Equality and Human Rights Commission, together with other bodies (EHRC 2009), found that the equality duties had been instrumental in incorporating equality considerations into procurement in local authorities over the previous three years, according to 87 per cent of equality and procurement officers surveyed and almost all (98 per cent) thought that progress had been made in this area in the last three years. However, lack of understanding and joint working between equalities and procurement staff was felt to be a frequent difficulty. The GLA has been actively using procurement to achieve its equality aims through its sustainable procurement policy produced in 2006 that seeks to ensure that procurement supports social, economic and environmental objectives that benefit London. A largescale project that has applied such provisions is Transport for London’s (part of the GLA group) contracting for the £1 billion East London Line. Equality requirements were included as part of the invitation to tender and contractors had to demonstrate that they could deliver equality and supply-chain diversity effectively before getting through to the final bidding stage (Godwin 2009). Contractors were expected to look at the diversity and gender balance of the workforce with the intention that it should be representative of the local communities in East London. The winning contractor for the main works, Balfour Beatty Carillion JV, held regular workshops to try and get more women involved. Although the number of women employed on the East London Line has increased, the equality and inclusion manager reported that it would be some time before there was a marked increase as the women do not yet have the industry qualifications; only two per cent of those working on site at the end of 2007 were female (Godwin 2009). Also in East London, the 2012 Olympics are providing a further opportunity to link procurement to equality outcomes. The Olympic Delivery Authority (ODA) has made promoting equality and diversity a requirement on all contractors within its procurement policy (ODA 2007). During the tendering process, contractors are expected to indicate their approach to equality and diversity, and that they have understood the ODA’s policies. The successful tier one contractors – that is those with a direct contract with the ODA, rather than subcontractors – must demonstrate a commitment to equality and inclusion, by developing an equality action plan that is regularly monitored by the ODA, including monitoring their workforce, diversifying the supply chain and looking at opportunities

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for where they can increase the numbers of women, Black, Asian and Minority Ethnic (BAME) and disabled people in their employment. According to the ODA’s head of equality and inclusion, interviewed as part of my research, the introduction of contractual requirements concerning equality was new to the construction industry; in the past there were requirements linked to planning concerning the recruitment of local people, but having strategic aims about recruiting women or BAME staff was a new situation for them. However she believed that the pragmatism found in the industry is helpful: ‘They are used to trying to fix things, and it is in their contracts, so they want help to do it.’ Help is offered through a ‘collaborative’ rather than a ‘big stick’ approach, and the ODA hopes that the equality monitoring processes introduced into the construction industry will be part of the legacy of the 2012 Olympics. The head of equality and inclusion was happy with progress so far, but recognised its limitations in that they had no direct influence over tier two and three contractors who employ a large part of the workforce, and with whom the ODA does not have a direct contractual relationship: We encourage, coax and cajole, but there is no stick that we can use, as we could with tier one contractors, although we have never had to.

The TfL East London Line contracts included an infraction clause whereby the contract could be terminated if the contractor failed to deliver on equality commitments, which TfL’s equalities and inclusion manager felt was important to show that TfL took it seriously. Despite ‘initial resistance’ he felt that the contractors ‘took it in the right spirit’ and recognised they should deliver what they promised (Godwin 2009). There were also suggestions from other interviewees in my research that TfL’s procurement policies were providing a spur to companies to take an interest in equality. The interviewee from the Women into Non-Traditional Occupations project felt that the motivation for some employers to get involved in the project was because their contracts with TfL required them to monitor and improve their proportions of women in employment. Companies were therefore willing to offer ‘taster days’ to allow women to try out non-traditionally female roles and would attend events to encourage job applications from women. Thus procurement policies containing equality requirements may support wider efforts to raise awareness of non-traditional work among women, as well as more directly contributing to employment opportunities for women. Another interviewee, Cheryl, an electrician, had gained a placement on the East London Line project. She welcomed the experience of working on a large construction site, even though she found the placement too generic and in the end felt that she was not gaining the necessary experience as an electrician needed to complete her NVQ level 3 qualification. She commented that the company who offered her the placement had been keen to hire women, and it may have been the case here that the equality requirements introduced into the procurement process were an impetus in providing the work experience that women often find so difficult to get, as we have seen above. Now fully qualified and looking for work, Cheryl was hoping to benefit from the requirement for the London Olympics to employ local people, but had some concerns: And basically they’re just taking down people’s details that are in the area because work is supposed to go to people in the surrounding boroughs. Whether that happens or not, because I saw something on the news that not a lot of people in the boroughs are actually getting the

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She believed, though, that being a woman might work in her favour with the larger companies who were concerned to implement their equality commitments. Another interviewee, an engineer working on a station improvement project contracted by TfL, said that her employer, a large construction company, had been required in the tendering process to produce statistics on employee diversity, noting that her firm had better figures than average for the industry. However she commented wryly on the jokes circulating within the organisation: If you’re a girl in [employer] you are going to end up on the front cover of some publication at some point or other, and we all have been, every single woman that I know has been in the video or on the front of the annual report or in the calendar or something. They go ‘Excellent, more girls, let’s photograph you and make it look like we’re diverse’, so it looks as though there’s a ridiculous proportion of ethnic minorities and women who work for us and no white men at all!

Such comments reflect a view that contractual requirements relating to equality may mean that companies simply get better at trying to ‘look diverse’, when the reality is very different, a concern that is addressed in the LDA’s monitoring processes, as seen below. Nevertheless, although it is too early to know how successful the 2012 Olympic construction projects will be in providing non-traditional work opportunities for women, the interviewees here are optimistic that the inclusion of equality requirements in the procurement process, together with the provision of training and work opportunities through the Women’s Project discussed above, will offer a good model for the construction industry to follow in other large builds. Furthermore, they are hopeful that having women on site and more visible may gradually contribute to the culture change needed in the industry.

The Equality Act The government’s guidelines on equality and procurement (OGC 2008: 5) state that ‘public authorities must consider how they can use their procurement functions to further equality objectives’. Specifically, the public sector equality duties require a public body to consider whether any relevant obligations under the duty should be passed onto the contractor. Where it is deemed that they should: This should be included in the contract conditions which relate to the performance of the contract. Public authorities should monitor the performance of the contract to ensure that the obligations are being met. The public body would remain liable for any non-compliance. (OGC 2008: 6)

The policy statement issued in response to consultations on the Equality Bill (GEO 2010) notes that while equality should already be considered as part of public bodies’ procurement processes, further specific duties were needed to ensure greater and

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more consistent use. This would require public bodies to set out how they plan to use procurement to further equality objectives and to consider using equality-related award criteria, where relevant and proportionate and consider incorporating equality-related contract conditions. Some commentators said that the extent to which the expanded equality duty required public authorities to build equality into public procurement was ‘a key litmus test of how serious the Government is in achieving its equalities agenda’ (Rubenstein 2009). One proposal that was rejected, however, was an explicit requirement for public bodies to deal with suppliers’ breaches of discrimination law (Rubenstein 2010). Since the change of government in May 2010, the future of the specific duties affecting procurement is uncertain, as secondary legislation is required to implement this part of the Equality Act 2010. One interviewee who had already been using procurement to promote equality, the then Head of Equalities at the LDA, was hopeful that the proposals for the Equality Act would strengthen their ability to require equality measures: Hopefully the new Bill will get even better and we’ll have even more powers to use this. It works, it really does work. It makes a difference. When people want your money, they get interested in equality.

Commercial imperatives, in her view, were a powerful tool. But monitoring by the body awarding the contracts was also key to successful outcomes, so that it was not simply ‘ticking boxes’: So even if they do just tick the right box to get the money, if we’ve got the right people in our delivery and contract management teams and we’re training them, and they have equality targets. So if they do have to have 30 per cent of their clients to be BAME or 10 per cent women, then when we’re there having monitoring meetings and asking them what they are doing, that’s where the quality comes in [...] But good project managers are saying, how are you doing it? What are you doing? Here’s a toolkit.

In introducing the Equality Act the Labour government acknowledged that guidance would be crucial in how effectively the requirements are implemented, with a stated commitment to work with the Office of Government Commerce and the Equality and Human Rights Commission (EHRC) on practical guidance (Rubenstein 2009). The interviewee from the LDA also pinpointed the role of the EHRC and hoped that the guidance would provide some strong examples of how improved equality outcomes could be achieved through procurement. She added: It’s in their hands now whether it starts to become enforced. There must be local authorities that don’t do it, and it’s about how much their lives are made difficult because of that and we look to the Commission now.

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Conclusion This chapter has presented evidence of a certain momentum that had been created to try to reduce the gender pay gap and occupational segregation as a major contributor to this, which resulted in funding for targeted initiatives that are seeing some results for women wishing to enter male-dominated work, albeit on a small scale. Those involved in running such projects found no shortage of women willing to consider traditionally male occupations. Rather, the barriers to gaining employment were primarily found to be structural constraints relating to industry requirements for work experience, together with employer resistance to taking on women. The lack of flexible working arrangements or facilities such as toilets or protective clothing, as well as male workplace cultures remain further barriers to women, but some interviewees in male-dominated industries felt that many companies had made considerable efforts to improve working conditions for women – and indeed all workers – in recent years. We have seen that the political will to drive change – at national and regional levels – has been a key force behind the initiatives discussed here. Where this has been combined with commercial imperatives – by introducing equality requirements into the contracts of those providing public services – there is great potential for finally seeing change in the gender balance of industries that have previously proved highly resistant. Several interviewees believed that the use of procurement to address equality issues was a powerful tool, and one that could continue to be used and developed, in particular with the legislative backing provided by the public sector equality duties. There is optimism about the outcomes of including equality requirements in contracts for construction of the 2012 Olympics, and evidence from the East London Line project was encouraging. However, Clarke and Wall (2004) have shown us that progress for women in the construction industry has historically been marked by advances at certain periods, which are then set back by political changes or economic circumstances. Wall points out that the advances made by women during the 1970s and 1980s did not last long: By the early 1990s the construction industry was in deep recession and many in the local authority DLOs had been made redundant after the imposition by the Conservative government of compulsory competitive tendering (CCT). The GLC had been completely disbanded by Margaret Thatcher, causing chaos in London’s education and services. The links built up between women’s training workshops and the DLOs that enabled women to continue training as adult trainees ended. (Wall 2004: 168)

There are some worrying parallels with our current situation. We are presently facing an economic crisis that has had a major impact on the construction industry, among many others, and the political changes at the level of London-wide and national government have seen a move from left to right. On the other hand, the need to consider equality is more deeply embedded now both in the legal framework and in the operation of many corporate and public organisations. Even if a new government does not pursue further measures to address gender inequality, the (albeit compromised) legal framework of the Equality Act 2010 offers a tool to use for those who have a will to address inequality. It remains to be seen, though, whether the strengthened specific public sector duties in relation to procurement will be introduced.

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Some interviewees hoped, though, that as equality considerations have been successfully established in the procurement practice of many public authorities, this would continue despite changes in government. The former Head of Equalities at the LDA reflected this view: I think a lot of authorities like the LDA and RDAs [Regional Development Agencies] have been really strong in trying to embed equalities into procurement, they wouldn’t want to let that go.

Many of the initiatives highlighted here have targeted both cultural and attitudinal change, as well as employer practices concerning the recruitment of women, and there are indications that such changes may become part of a gradual shift that becomes embedded in attitudes and employer practices concerning the employment of women and men. It can only be hoped that these deeper cultural trends in attitudes towards gender may weather the changing political and economic climate.

References Anker, R. (1997), ‘Theories of occupational segregation by sex: An overview’, International Labour Review 136(3): 315–339. Clarke, L. and M. Gribling (2008), ‘Obstacles to diversity in construction: The example of Heathrow Terminal 5’, Construction Management and Economics 26(10): 1055–1065. Clarke, L. and C. Wall (2004), ‘Now you’re in, now you’re out: Women’s changing participation in the building trades in Britain’, in Women in Construction, L. Clarke, E.F. Pedersen, E. Michielsens, B. Susman and C. Wall (eds), Brussels: CLR/Reed Business Information, pp. 24–47. Cockburn, C. (1991), In the Way of Women: Men’s Resistance to Sex Equality in Organizations, London: Macmillan. DCLG (2007), Towards A Fairer Future: Implementing the Women and Work Commission recommendations, London: Department for Communities and Local Government. Dickens, L. (2007), ‘The road is long: Thirty years of equality legislation in Britain’, British Journal of Industrial Relations 45(3): 463–494. Djan Tackey, N., H. Barnes, H. Fearn and R. Pillai (2009), Evaluation of the Race Equality Procurement Pilots, DWP Research Reports, London: DWP. EHRC (2009), Equalities and Procurement Research Summary, London: Equality and Human Rights Commission. EOC (2001), Just Pay: Report of the Equal Pay Task Force, Manchester: Equal Opportunities Commission. —— (2004), Plugging Britain’s Skills Gap: Challenging Gender Segregation in Training and Work, Manchester: Equal Opportunities Commission. —— (2005), Free to Choose: Tackling Gender Barriers to Better Jobs, Great Britain Summary Report on EOC’s Investigation into Workplace Segregation of Women and Men, Manchester: Equal Opportunities Commission. —— (2006), Facts about Women and Men in Great Britain 2006, Manchester: Equal Opportunities Commission. EOR (2010), ‘25 years of equality reporting’, Equal Opportunities Review 200. GLA (2007). The Construction Industry in London and Diversity Performance, London: Greater London Authority.

Ta c k l i n g G e n d e r S e g r e g a t i o n i n t h e U K Tr a n s p o r t a n d C o n s t r u c t i o n S e c t o r s 307 Godwin, K. (2009), ‘Transport for London: Contracting for equality’, Equal Opportunities Review 185: 12–16. Government Equalities Office (2009a), Annual Report and Resource Accounts 2008–2009, London: GEO. Government Equalities Office (2009b), A Fairer Future The Equality Bill and Other Action to Make Equality a Reality, London: GEO. Government Equalities Office (2010), Equality Bill: Making it Work: Policy Proposals for Specific Futies, Policy Statement, London: GEO. Gurjao, S. (2006), Inclusivity: The Changing Role of Women in the Construction Workforce, Ascot: The Chartered Institute of Building. Hamilton, K., L. Jenkins, F. Hodgson and J. Turner (2005), Promoting Gender Equality in Transport, EOC Working Paper Series, Manchester: Equal Opportunities Commission. Kingsmill, D. (2001), A Review of Women’s Employment and Pay, London: Women and Equality Unit. LDA (2007), The London Development Agency Gender Equality Scheme 2007–2010, London: London Development Agency. McCrudden, C. (2009), ‘Public procurement and the Equality Bill: A modest proposal’, Equal Opportunities Review 185: 8–11. National Statistics (2009), ‘Gender pay gap narrows’. Published 12 November 2009. http://www. statistics.gov.uk/cci/nugget.asp?id=167 [accessed 16 November 2009]. ODA (2 December 2008), ‘London 2012 can “blaze a trail” for women in construction work says Olympics Minister’ http://www.london2012.com/press/media-releases/2008/12/london-2012can-blaze-a-trail-for-women-in-construction-work-says-olympics-m.php. [accessed 4 February 2010]. —— (2007), Procurement Policy, London: Olympic Delivery Authority. OGC (2008), Make Equality Count, London: Office of Government Commerce. Rubenstein, M. (2009), ‘The EOR guide to the Equality Bill: Part 3 public sector duty’, Equal Opportunities Review 191. —— (2010), ‘Equality Bill: House of Lords Report Stage’, Equal Opportunities Review 199. Wall, C. (2004), ‘Any woman can’: 20 years of campaigning for access to construction training and employment, Women in Construction, L. Clarke, E.F. Pedersen, E. Michielsens, B. Susman and C. Wall. (eds), Brussels: CLR/Reed Business Information, pp. 158–172. Women and Work Commission (2006), Shaping a Fairer Future, London: Women and Work Commission. Wright, T. (2009), ‘Women edge into the driving seat’, Labour Research 98(3): 10–13. —— (2011), ‘Exploring the intersections of gender, sexuality and class in the transport and construction industries’, in Equality, Inequalities and Diversity – Contemporary Challenges and Strategies, G. Healy, G. Kirton and M. Noon (eds), Basingstoke: Palgrave Macmillan.

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Index

Page numbers in italics refer to figures and tables. 3Ds London project 249–51, 262–3 critical success factors 259–60, 260 employability and employment 251–3 good practice case studies 253–4 BEARS Youth Challenge 254–5 Building London Creating Futures 255–6 MENCAP Pathway Project 256–7 Praxis 257–58 Tamil Refugee Training and Employment Centre 259 Acas/CIPD religion and belief study aims and objectives 158 challenges/solutions 159 conclusions of 168 access to labour market, see 3Ds London project Access to Work scheme 176 Advisory, Conciliation and Arbitration Service (Acas) 20, 238, 239 religion and belief study, see Acas/CIPD religion and belief study affirmative action 280–81, 281, 290 age discrimination 206, 206–7, 219, 221–2, 231 and gender 222 in the legal profession 219–20, 223–4, 225–6, 229 legislation against effectiveness of 230–31, 237–9 employer practices, impact on 239–44 Employment Equality (Age) Regulations 2006 219, 226–8, 230, 230–31, 235 Equality Act 2010 230–31

implications of 226–8 national stakeholder perspectives 239 public vs. private sector 224–5 regulations, impact of 226–8 see also mature women and the legal profession; older workers age diversity 228–9, 230 Ahmad, B. 119 Allen & others v GMB 64, 65 Allen, N.J. 207 Alleyne, A. 119 Archibald v Fife Council 19 Arnold, J. 214 Aronson, P. 90 ‘associative discrimination’ 19 AURORA 84 Bacchi, C.L. 281 Balanced Migration 139–40 Batson, Brendan 132 BEARS Youth Challenge 254–5 Bernard Matthews Farms 150 best practice 63–7, 130, 166 BFBM (Bundesverband der Frau in Business und Management) 84 Black, Dame Carol 186 BPW (Business and Professional Women) DE 84 BPW (Business and Professional Women) UK 84 Brent Educational Art Recreational Services 254–5 Briskin, L. 93, 273 British printing industry study, see printing industry Brown v Rentokil 52–3 Building London Creating Futures 255–6

310 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k Building Work for Women project 298 bullying effect on victims 35 criminalising 43 of disabled workers 178, 179 employers’ policies 39, 41, 44 examples of 33 forms of 35 MSF union definition 35 scale of 34 tackling 163, 167 trends, current 41–3 see also harassment burden of proof 19, 20, 39, 41, 175 business case approach 1–2, 262 to age equality 228–9, 236 to disability adjustments 192 to gender equality 286, 294 to religion and belief equality 159 risks and limitations of 78, 122–4, 229 to sexual orientation equality 97, 100, 103, 107, 108 Cassin, M. 119 Chartered Institute of Personnel and Development (CIPD) 235 religion and belief study, see Acas/CIPD religion and belief study Chief Constable of West Yorkshire Police v Khan 18 Clarke, L. 299, 305 Coleman v Attridge Law 19 Coleman v Attridge Law and Steve Law 39–40 Colling, T. 270 Collins, H. 14 compensation 20, 21, 37, 40–41 Conley, H. 26, 300 Connolly, M. 16 construction sector Building London Creating Futures 255–6 Galaxy age equality project 212 gender segregation research project, see occupational gender segregation, transport/construction sector research project Lyndsey oil refinery site dispute 139–40, 148

male dominance of 295 corporate social responsibility (CSR) 262, 279 Court of Justice (CoJ) 49–50, 52–3, 55 Crime and Security Act 2001 43 Dalal, F. 114 Danieli, A. 270 Daniels, G. 270 Dekker v Stichting Vormingscentrum voor Jong Volwassen Plus 49–50 Del Monte Foods v Mundon 53–4 demographic change 203–6, 212–14; see also age discrimination; older workers Dickens, L. 23, 24, 30, 108, 270 dignity at work policies 41, 44 direct discrimination 13–15, 16, 36 of disabled workers 18, 19 pregnancy-related discrimination 49, 51–2, 55 religion and belief discrimination 157 disability, definition 174–5, 175 disability discrimination 18–20, 175 ‘associative discrimination’ 19 experiences of disabled employees 178–80 indirect discrimination 16 pregnancy-related discrimination 54 proving disability 19 trade unions’ role in fighting 180–82 see also mental health problems Disability Discrimination Act (DDA) 1995 18–19, 23, 174–5, 177, 182 ‘different’ vs. ‘equal’ treatment 175, 176, 180, 181 employer responsibilities 177–8 and employers 176–7 medical focus of 174, 180, 181, 182 and mental health 186, 187, 191–2 non-disclosure, consequences of 191 workplace adjustments, see workplace adjustments Disability Equality Duty (DED) 2006 24, 25, 28, 175, 177 discrimination 1 claiming 21 direct discrimination, see direct discrimination

I n d e x 311 indirect discrimination 14, 15–16, 156, 157, 206, 227 intersections of 219–20, 221–2, 231 legislation against 11–13, 21–2, 23, 25 Equality Act 2010, evolution of 25–9 principles of 13 public sector equality duties 24–5 review, call for 23–4 see also specific legislation less favourable treatment 16–17 proving 20–21 tribunal outcomes 20 in WINs study 89–90 see also specific types diversity approach 100, 121–2, 123–4 Douglas, C. 118–19 Duncan, C. 222 Ellis, E. 49 Employment Appeals Tribunal (EAT) 16, 20, 49, 53–4, 146 employment, entry into, see 3Ds London project Employment Equality (Age) Regulations 2006 219, 226–8, 230, 230–31, 235 Employment Equality Directive 97, 175, 226 Employment Equality (Religion or Belief) Regulations 2003 155, 166–7 Employment Equality (Sexual Orientation) Regulations 2003 97–8, 166–7 Employment Framework Directive 12, 38, 227 Employment Protection Act 1975 48–49 employment tribunals 20, 20–21, 54, 157 Equal Opportunities Commission (EOC) 51 equal opportunities policies 164–5, 179 Equal Pay Act 1970 11, 23 equal pay claims 16–17, 21, 69 Equal Treatment Directive (ETD) 23, 35, 38, 49–50, 52, 53, 55, 206 Equality Act 2010 1, 21–2 age discrimination 227 age equality 230 Conservative Party reservations 72 disability discrimination 174, 175, 177, 178, 182, 187 disappointment in 29–30

Equality Representatives (ERs) 271 evolution of 25–9 former legislation included 12 harassment legislation 38–40 multiple discrimination 231 pregnancy-related discrimination 51, 53, 54–5 procurement and equality 303–4 socio-economic disadvantage 274 Equality and Human Rights Commission (EHRC) 25, 26, 147, 148, 179, 231, 274 procurement and equality 301, 304 Equality Commission for Northern Ireland 147 equality impact assessments (EIAs) 26–7, 29 Equality Representatives (ERs) 265–6, 276 UNISON pilot project activism 266–8 integration into union 272 organisational role 268–71 self-organisation 272–6 statutory rights 271–2 European Union Directives Employment Equality Directive 97, 175, 226 Employment Framework Directive 12, 38, 227 Equal Treatment Directive (ETD) 23, 35, 38, 49–50, 52, 53, 55, 206 Fixed-Term Work Directive 50 Pregnant Workers Directive 55 Racial Equality Directive 12, 38 Temporary Agency Workers Directive 150 Fevre, R. 179 Field, Frank 139–40 Fitzpatrick, B. 156, 157 Fixed-Term Work Directive 50 Fosh, P. 181 Foster, D. 178, 181 Fredman, S. 25, 44 gender equality 55, 219, 280 global strategies 280–81 national rankings 283–4, 284 in Norway, see Norway

312 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k see also occupational gender segregation; sex discrimination Gender Equality Duty (GED) 2007 24, 25, 28–9, 66, 300 gender pay gap 62, 69 barriers to equal pay 70–71 in printing industry, see printing industry challenges of addressing 66–7 equal pay claims 16–17, 21, 69 impetus to address 64–6 in legal profession 221 litigation examples 64–5 and occupational gender segregation 293, 294 procurement, use of 300–303 gender segregation, see occupational gender segregation Goldberg, D.T. 115 Graphical, Paper and Media Union (GPMU) 72, 74 Greater London Authority (GLA) 300, 301 Greene, A.-M. 272 Gregg report 263 Grint, K. 276 Grønmo, S. 284 Hampson v Department of Education and Science 16 Hand, Richard 224 Handels-og Kontorfunktionaernernes Forbund I Denmark (acting for Hertz) v Dansk Arbejdgiverforening (acting for Aldi Marked K/S) 50, 52–3 harassment 13, 17, 35, 163 Acts and Regulations employed 36–7 anti-discrimination legislation, failure of 36 by association 39–40 compensation awards 40–41 costs to employers 42–3, 43 criminalising 43 of disabled workers 175, 178, 179 employers’ policies 39, 41, 44 Equality Act 2010 38–40 examples of 33 intentionality 39

legislation trends, current 41–3 Protection from Harassment Act 1997 37–8 for religion and beliefs 157, 162, 164 religious beliefs vs. sexual orientation 166 responsibility shift 44 sexual 35, 77, 89 for sexual orientation 157 third party 40 see also bullying Harper, Mark 72 Hayes v Malleable Working Men’s Club & Institute 49 Healy, G. 270, 272, 276 Hepple, B. 23, 24, 230 Hertz (Handels-og Kontorfunktionaernernes Forbund I Denmark (acting for Hertz) v Dansk Arbejdgiverforening (acting for Aldi Marked K/S)) 50, 52–3 Hoque, K. 179 Human Development Report 283 Humphrey, J. 272 identity 119, 120–21, 213, 219–20 immigration, see migrant workers Immigration Asylum and Nationality Act 2006 144 Improving Access to Psychological Therapies (IAPT) 186 indirect discrimination 14, 15–16, 156, 157, 206, 227 James v Eastleigh Borough Council 14 job segregation, see occupational gender segregation Jowell, Tessa 299 Kerr, A. 274–5 Kirton, G. 272 Law Society 222–3, 228–9 Layard, Richard, Baron Layard 186 learning disabilities 256–7 legal profession age discrimination 219, 227–8 age distribution 222–3, 223

I n d e x 313 age diversity and recruitment 228–9 and mature women employment 225–6 studying law 223 training contracts 224–5 sex discrimination 219–20 less favourable treatment 13, 14, 16–17 Linnaeus, Carolus 114 Livingstone, Ken 300 London Borough of Lewisham v Malcolm 18, 54 London Development Agency (LDA) 294–5, 296, 300, 304, 306 London 2012 Olympics 298, 303 procurement and equality 301–2 Women’s Project 298–9 London Underground v Edwards (No. 2) 16 Loretto, W. 222, 230 Løyning, T. 284 Lyndsey oil refinery site job dispute 139–40, 148 Mace 255–6 Maguire, M. 221, 222, 226 management style 42 Martin, Kevin 229 Mason, Paul 151–2 mature women and the legal profession 231 age diversity and recruitment 228–9 employment 225–6 legislation, effectiveness of 230–31 networking, importance of 225 public vs. private sector 224–5 regulations, impact of 226–8 studying law 223–4 training contracts 224–5 Mayhew, K. 213 McGarry, T. 50 McGlynn, C. 229 McIlroy, J. 270 McLaughlin, E. 120, 121 MENCAP Pathway Project 256–7 mental health 188–9 mental health problems 185–98 costs to employers 188 defined 189 Disability Discrimination Act 1995 186

fear of discrimination 190–91 further information 198–9 ignorance of, public’s and employers’ 187 legal rights and business solutions 191–4 positive changes, current 186–7 reasonable adjustments 192–3 planning for, with Parachute 194–5 proactive 196–8 reactive 192–4 stigma of 188, 189–90, 191, 196 workplace changes, rate of 189–90 Meyer, J.P. 207 migrant workers 139–53 discrimination against 145 further information 152–3 immigration law and employment 142–4 industries employing 141–2, 142 issues and good practice 146–7 dismissal/redundancy 149–50 health and safety 150 language difficulties 148–9 non-UK qualifications 149 occupational segregation 148 at recruitment stage 147–8 Points-Based System (PBS) 143–4, 149 Praxis project 257–8 rights at work 145–6 statistics 140, 141 Mind 186 Mitchell, M. 166 Morgan Cole LLP 229 Nagarajan v London Regional Transport 18 National Centre for Social Research religion and belief study, see Acas/CIPD religion and belief study National Employment Rights Authority (NERA) 151 National Minimum Wage 64 New Deal programmes 250 Noon, M. 179 Norway affirmative action policies 282, 282–3 gender equality

314 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k global ranking 284, 284 strategies for 281–3 gender representation law 284–6, 285, 290–91 compliance with 286–8, 287 women’s views on 288–90 occupational gender segregation 279–80 Norwegian Gender Equality Act 281–2 occupational gender segregation 11, 279–80, 293 printing industry 70, 76, 76–7, 78 in Norway 279–80 procurement, use of 300–304 public sector 61–2 tackling, importance of 294–5 transport/construction sector barriers to non-traditional work 295 employers’ resistance to hire women 297–9 London Olympics 2012 298–9, 301–2, 303 political will for change 299–300 women’s awareness of non-traditional occupations 296–7 occupational stress 41–42 older workers 206, 212–14 EU numbers 205 flexible working policies 209–11, 213–14 monitoring 213, 214 motivations of employers 208 of trade unions 209 of workers 208–9 organisational committment 207, 213 retention of 207 retirement plans, factors in 209 and social aspect of work 214 training opportunities 207, 208, 213 valuing 208, 241–2 work–life balance 87–9, 210–11, 213–14 workplace adjustments for 211–12, 214 see also age discrimination; mature women and the legal profession; retirement Opsahl, T. 286, 288

Page, M. 26 Parachute tool 194–5 pay inequality, see gender pay gap Pearce v The Governing Body of Mayfield Secondary School 17 postcode discrimination 254 power resources 71 Praxis 257–8 pregnancy-related discrimination 47–8, 55, 77 ‘comparator’ problem 48–9, 51 employer culpability 53–4 and fixed-term contracts 50 legislation, benefits of 54–5 post-maternity leave illnesses 50 pregnancy-related illnesses 52–3 rights during maternity leave 52 as sex discrimination 48–51 workers vs. employees 52 Pregnant Workers Directive 55 printing industry gender pay gap 72, 73 maternity and childcare factor 77 progression factor 76, 76 recruitment factor 76–7 reinforcement mechanisms 74–5 sexual harassment factor 77 successful challenges to 75 undervaluation of women’s work 73–4 union, failure of 74, 75 occupational gender segregation 76, 76–7 pay structure 73 procurement and equality 230, 266, 300–304, 305–6 Protection from Harassment Act 1997 37–8 public sector and anti-discrimination legislation 224–5, 230 employment data, collection of 29 equality duties 24–5 Disability Equality Duty (DED) 2006 24, 25, 28, 175, 177 and Equality Act 2010 25–29 Gender Equality Duty (GED) 2007 24, 25, 28–9, 66, 300 Race Equality Duty (RED) 2001 24, 25

I n d e x 315 equality impact assessments (EIAs) 26–7, 29 feminisation of 61 gender pay gap 62–3 challenges of addressing 66–7 impetus to address 63–6 model employer question 59–60, 63 occupational gender segregation 61–2 part-time work 61, 62 procurement and equality 230, 266, 300–304, 305–6 socio-economic duty 28 race 114–15 race discrimination 11–12 trade unions’ role in fighting 129–30 see also racism; Working Against Racism (Davis et al.) guidelines Race Equality Duty (RED) 2001 24, 25 Race, Immigration and Trade Unions (RITU) research project 129–30 Race Relations Act 1976 12, 23 racial equality 113–14, 116 achieving, challenges for 124 action, recommendations for 124–6 racialised thinking 114–16 race equality directive 12, 38 racism 114 experiences of black managers 116, 118–19 case study 117–18 collusive denial of racism 120 identities, negotiating 120–22 skin colour matters 120 normalisation of 115 racialised thinking 114–16 Working Against Racism guidelines, see Working Against Racism (Davis et al.) guidelines Ramdoolar v Bycity Ltd 54 Randøy, T. 284 Reaney v Kanada Jean Productions Limited 49 recruitment and age 206, 224–6, 228–9, 230 and disability 177 and gender 70, 76–7, 297 and nationality 145, 147–8

positive action 27–8 and sexual orientation 106 Reed v Stedman 39 refugees 144 Praxis 257–8 Tamil Refugee Training and Employment Centre project 259 regulation 30, 206 religion and belief 155 Acas/CIPD study, see Acas/CIPD religion and belief study change 162–4 complaints and grievances 164 equal opportunities policies and practices 164–6 knowledge/understanding 161–2 legal context 155–6 needs of employees 160 previous research 156–7 religion/belief vs. sexual orientation regulations 166–7 religious and business needs 159–60 religious observances 160–61 responsibilities, employer’s bullying and harassment policies 39, 42, 43, 44 disability, adjustments for 176, 177–8, 192 gender equality 25 public authority duties 24, 25, 230 race equality 119, 125 retirement ‘duty to consider’ legislation 235–6, 244–5 employer practices, impact on 239–40 national stakeholder perspectives 237–9 request consideration 241–2 request handling 242–3 use of, employers’ 243–4 factors influencing decision 209 mandatory retirement age 206, 235, 245 see also older workers Rijkers, B. 213 Sabine Mayr v Backerei und Konditorei Gerhard Flockner OHG 55

316 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k San Ling Chinese Medical Centre v Lian Wei Ji 146 Savage, B. 156 segregation, occupational, see occupational gender segregation Seierstad, C. 286, 288 sex discrimination 11–12, 35, 219–20, 221 gender pay gap, see gender pay gap occupational gender segregation, see occupational gender segregation pregnancy-related discrimination, see pregnancy-related discrimination Sex Discrimination Act 1975 11, 23 pregnancy-related discrimination 47, 48, 49, 51 sexual harassment 17, 35, 77, 89 sexual orientation discrimination equality/diversity policies 97–101 implementation of policies 101–2 progress factors identified by LGB workers 102 awareness training 103–4 benchmarking 106–7 diversity champions 103 diversity/inclusion campaigns 103 enforcement barriers, removing 104 integrating diversity into roles and appraisals 104–5 intranet outreach to those not ‘out’ 105 LGBT-friendly policy and benefits 105 LGBT groups and networks 102–3 LGBT mentoring systems 106 LGBT recruitment and induction initiatives 106 marketing to LGBT businesses and individuals 107 ‘out’ LGBT role models 105 sexual orientation monitoring 106 sponsorship and external events 107 sexual orientation rights vs. religion/belief rights 166–7 Shamoon v Chief Constable of the RUC 14 Singh, V. 279 Skjeie, H. 280 Soames, Nicholas 139–40

St Helens MBC v Derbyshire and others 18 Stephen Lawrence Inquiry 24, 130 Stewart v Cleveland Guest (Engineering) Ltd 36 stigma 180, 188, 189–90, 191, 196 Stonewall Diversity Champions programme 99, 101, 108 Strathclyde Regional Council v Porcelli 17 Sugar, Sir Alan 48 Sutton and Merton Hospital Trust 139 Tamil Refugee Training and Employment Centre 259 Teigen, M. 280 Tele Danmark A/S v Handels-og Kntorfunktionfrernes Forbund i Danmark (acting on behalf of BrandtNielsen) 50 Temporary Agency Workers Directive 150 Thompsons Solicitors 27 time limits for tribunal claims 21 Time to Change campaign 186 Trades Union Congress (TUC) demonstrations/protests 134, 135, 137 disabled workers 181 Equality Bill White Paper, response to 28–9 Equality Representatives (ERs) 265 Gender Equality Duty (GED) 2007 29 mandatory retirement age 235, 237 migrant workers 149, 150 National Minimum Wage 64 racism, response to 130 Working Against Racism guidelines, see Working Against Racism (Davis et al.) guidelines trade unions and disabled workers 180–82 Equality Representatives (ERs), see Equality Representatives (ERs) Gender Equality Duty (GED) 2007 29, 66 gender pay gap, fighting 69 and migrant workers 150 and older workers 209 and printing industry 74, 75 racial discrimination, fighting 129–30 see also Working Against Racism (Davis et al.) guidelines

I n d e x 317 self-organisation 272–3 see also Trades Union Congress (TUC); Union Learning Representatives (ULRs); UNISON Transport for London (TfL) 163, 301, 302 transport sector, see occupational gender segregation, transport/construction sector tribunals, employment 20, 20–21, 54, 157 Turley v Allders Department Stores 49 Turner, Adair 205 UK Border Agency (UKBA) 143, 144 Union Learning Representatives (ULRs) 272 Union Modernisation Fund (UMF) 265–6 UNISON 63, 64, 75, 272–6 Equality Representatives (ERs), see Equality Representatives (ERs) Vento v Chief Constable of West Yorkshire Police 40 victimisation 17–18, 20 Vinnicombe, S. 279 violence, workplace 34, 35, 42, 43 Virdee, S. 276 Vos, R. 205 Waddington, J. 274–5 Wall, C. 299, 300, 305 Ward, J. 100 Welfare Reform Act 2009 263 welfare-to-work measures 250 West, C. 114 White, P.J. 230 Winstanley, D. 100 women and age discrimination 222 Ford Motor Company strike 1968 11 gender and age intersection 221–2 and the legal profession 220–21 mature women, see mature women and the legal profession non-traditional occupations, awareness of 296–7 pregnancy-related discrimination, see pregnancy-related discrimination in public sector employment 61

skills, improving 294 work experience placements 297–8 see also gender pay gap; occupational gender segregation; women’s independent networks (WINs) Women and Manual Trades (WAMT) 297, 298 Women and Work Commission 271, 294, 300 Women into Non-Traditional Occupations project 296 women’s independent networks (WINs) 83–4, 93 career obstacles 84–5 discrimination 89–90 masculine organisational culture 85–6 self-esteem/confidence problems 86–7 work-life balance 87–9 East Germany/West Germany differences 88–9 women-only groups, importance of 90–92 Working Against Racism (Davis et al.) guidelines accepting existence of racism 131 anti-racist education/training 137 black activists on union committees 132 black officers and leaders 133–4 black women 134–5 campaign against racism 138 ethnic monitoring 136 race equality and collective bargaining 131–2 recruiting black workers 135–6 representing/supporting black workers 137 Working Lives Research Institute (WLRI) 249 workplace adjustments 174, 175, 176, 182–3 employer responsibilities 19, 176, 177–8, 192 experiences of disabled employees 178–80 for interviews 177 trade unions, role of 180, 181–2 for workers with mental health problems 189, 192–3

318 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k proactive 196–8 reactive 193–5 Workplace Employee Relations Survey (WERS) 98

World Health Organization (WHO) 188, 189

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