Steve Vale, HR Consultant, investigates equalities legislation.
The history of equalities legislation in the UK now dates back nearly 45 years, with the Equal Pay Act having been introduced in 1970. This was followed by legislation on sex and race equality later in the 1970s, and disability legislation in the 1990s, before the introduction of legislation covering a wider range of protected characteristics during the Blair government, and the consolidation of all equalities legislation into the 2010 Equality Act. In the public sector, the concept of the Equality Duty has also been developed.
While the legislators have been busy throughout the period (and the process of introducing the legislation itself has often attracted a lot of media attention), work to examine the effectiveness of the legislation in changing attitudes and practices, and in delivering the expected benefits for target groups, has (aside from academic studies) been somewhat less prominent in government agendas and less high profile in the media.
This applies to the field of employment as much as to other areas, and two recent studies have cast doubt on whether legislation can, of itself, bring about major changes in employer attitudes and/or in outcomes for particular groups. These studies suggest that, despite the legislation, unfairness and discrimination are still rife, and it would be complacent to assume that equalities issues are automatically resolved because there is legislation in place.
The two studies cover areas where equalities legislation has been in place for the longest period of time — race and gender.
The first, from the Runnymede Trust, looks at the employment prospects of black and minority ethnic (BME) groups, and how these have changed in the past 10 years, drawing on 2001 and 2011 census data.
The second, from the Trades Union Congress (TUC), examines attitudes to maternity in the workplace, and looks at how far women’s actual experiences reflect the way in which the law on maternity rights was expected to work.
Ethnic equality — Runnymede Trust report
The Runnymede Trust has recently published the results of a project that looked at progress in the last 10 years in eradicating ethnic inequalities in England and Wales, titled Drifting Upwards or Sliding Back.
The project has:
produced measures of ethnic inequality for local authority areas across England and Wales in 2001 and 2011 for indicators of education, employment, health and housing
analysed change in local ethnic inequalities in England and Wales between 2001 and 2011
sought to highlight to policy audiences the need to tackle racial and ethnic inequality in contemporary Britain
sought to generate evidenced-based debate that can result in initiatives to reduce ethnic inequalities across the country.
calculated a measure of overall inequality for ethnic minorities for districts in England and Wales, using data from the 2001 and 2011 England and Wales Census
used the following indicators of inequality:
percentage aged 16–24 with no qualifications (education)
percentage aged 25 and over who are unemployed (employment)
percentage with a limiting long-term illness (indirectly age standardised) (health)
percentage living with an occupancy rating of -1 or below, indicating overcrowding (housing).
compared the calculations of the inequality measured in 2001 and 2011 for seven ethnic minority groups: Minority other than White British, White Irish, White Other, Black, Asian, Mixed and Other.
Key overall findings from the report
The following are the main findings from the Runnymede Trust report.
Ethnic inequalities in education, employment, health and housing remain widespread in England and Wales. Although the nature of ethnic diversity has changed over the past few decades, ethnic inequalities are stubbornly persistent.
Localities across the country particularly need to respond to ethnic inequalities in employment and housing, which have increased nationwide over the 2000s.
Localised initiatives are required as ethnic inequalities exist not only in diverse and deprived areas (eg Tower Hamlets) but also in areas with low ethnic minority concentration, in more affluent areas and rural areas (eg Breckland).
Many of the districts that have become less diverse between 2001 and 2011 are semi-rural and rural districts, with low ethnic diversity levels and small ethnic minority populations at the start of the decade. For example, the 20 districts with the largest ethnic inequalities include less urban areas with smaller ethnic minority populations.
Some of the districts with the largest ethnic inequalities are in areas of the country that are not usually noted for issues relating to their diverse populations, including parts of Kent, Somerset and Lincolnshire.
While there has been some improvement in educational inequality, national policymakers should be concerned about gaps in employment and housing in particular.
Local authorities can do more to respond to these inequalities, for example creating apprenticeship programmes for ethnic groups more likely to experience unemployment.
Actions that address ethnic inequalities can help all ethnicities and should be part of mainstream policy and practice.
There is a danger that a third generation of British-born ethnic minorities will have unequal opportunities and outcomes compared to their White British counterparts.
The report draws the conclusion that, given the lack of change since 2001, inequalities will not disappear of their own accord. This is particularly the case in employment, where inequalities have worsened in a large proportion of districts between 2001 and 2011, and is also particularly the case in those districts that are rural and semi-rural and had low ethnic diversity levels and small ethnic minority populations at the start of the decade.
Its findings provide clear evidence that ethnic inequalities are a local as well as a national concern, and it is clear that addressing inequality is not just an issue for authorities with diverse and poor populations. Some districts need to address inequality across several social dimensions. Others can target policy initiatives at particular outcomes and populations. Ethnic inequality in employment should be a concern for authorities across the country.
The report’s findings on employment
One of the most disappointing findings in the report is that, notwithstanding improvements in educational inequality since 2000, ethnic minorities continue to experience higher unemployment rates, and educational attainment does not translate into higher paying jobs. Ethnic minorities living in districts with relatively equal educational outcomes still experience inequality in the labour market.
Local ethnic inequality in terms of higher levels of unemployment for ethnic minorities than for White British is most widespread for the Mixed, Black and Asian groups. In over a third of districts, there were increases in ethnic inequalities in employment over the 2000s.
The districts with the greatest levels of inequality in employment are found in urban centres of England and Wales. There is a concentration of districts in central London, as well as the principal cities of Birmingham, Manchester, Leeds, Sheffield, Cardiff and Bristol. However, affluent, less urban districts, including Wokingham, Fareham, South Gloucestershire and Rushcliffe, also show employment disadvantage. It is noteworthy that there is not a direct overlap of districts displaying educational disadvantage and employment disadvantage; for example, Boston, South Holland and Fenland were among the most unequal in terms of education but were also among the most equal districts in terms of employment.
The report says “This indicates the key policy challenge of ensuring that educational attainment results in better employment outcomes for young people of all ethnic groups. Further monitoring, unconscious bias training, positive action and mentoring have all been adopted by employers seeking to overcome these inequalities, but Government needs to show more leadership and challenge employer discrimination.”
It points out that, at a national level, one of the key policies to address youth unemployment — apprenticeship — shows worse outcomes for ethnic minorities than for others. In this context, it states that “Local governments could also support pilot schemes for employers seeking to employ more local young ethnic minorities and consider using their procurement processes to promote diversity.”
The Pregnancy Test — TUC report
To coincide with the implementation of new shared parental leave regulations at the start of December, the TUC issued a report highlighting discrimination at work towards new mothers, and on how the persistence of such discrimination can be eliminated.
This report draws together and summarises the outcomes of a range of research undertaken by a number of agencies in recent years, including both bespoke surveys and regularly published statistics, such as those from the Annual Survey of Hours and Earnings, and Employment Tribunal and EAT statistics. It is selective in its approach, and deliberately seeks to highlight the continuing issues around maternity, which this research reveals.
It notes that the first legislation protecting women from unfair dismissal because of pregnancy was introduced 40 years ago. Since then, successive legislation has sought to strengthen maternity rights. Women are now legally protected from any unfavourable treatment at work because of pregnancy or maternity leave. The law says that they can take up to 52 weeks of statutory maternity leave and 39 weeks of statutory maternity pay, and have the right to return to the same or similar job.
However, the report goes on to say that, despite these legal rights, pregnancy and maternity leave is still a time when everything changes for many women at work, and that the changes are not at all positive. A recent survey of 2000 mothers and 500 managers found that 6 out of 10 mothers felt sidelined at work as soon as they announced their pregnancy and revealed that 4 in 10 managers admitted that they were wary of hiring a woman of childbearing age.
Another survey, by the Fawcett Society, of 1000 low-paid women found that 1 in 10 were given a more junior role when they came back to work.
The culture of many workplaces is perhaps revealed by the fact that, during the recent recession, the number of tribunal claims for unfair dismissal and suffering a detriment because of pregnancy rose by a fifth. In the five years from 2008 to 2013, more than 9000 women brought tribunal claims on these grounds.
Against this background, the introduction of employment tribunal fees in July 2013, whereby claimants have to pay an issue fee of £250 and a hearing fee of £950 to bring a claim of unfair dismissal or pregnancy or maternity discrimination, has hardly been a helpful development, particularly for lower-paid women and those who do not have access to occupational maternity pay schemes. The report points out that, if a woman is on maternity leave receiving just £138 a week (at the current rate), with the expense of a new baby and upcoming childcare costs, £1200 is likely to be a major deterrent to seeking justice. The impact of the advent of fees appears to be borne out by the fact that pregnancy and maternity claims fell by a quarter following their introduction.
The report highlights the fact that the Department for Business and Innovation’s (BIS’s) own survey results, published in 2010, showed that about a quarter of women did not return to the labour market after maternity leave and that most of those felt that they had not been able to make a free or unconstrained choice. A lack of family-friendly policies and an inability to opt for reduced hours are still a key issue for many new mothers.
More recent statistics from the 2013 Labour Force Survey show that the employment rates for working age men and women without dependent children are almost the same (around 76%) but the employment rate for women drops significantly after having children — it is below 60% for women with children aged 0–4 years. By contrast, being a father increased the likelihood of a man being in employment — employment rates for men with dependent children aged 0–18 years are around 90%.
The same statistics show that the majority of mothers in employment work part time — 6 out of 10 of those with children of pre-school or primary school age and half of those with children at secondary school. This compares to less than 10% of working fathers. For example, among the parents of children aged 5–10 years, 42.3% of mothers worked full time, compared to 93.2% of fathers.
The report also highlights how the gender pay gap widens through the main childrearing years. The 2014 Annual Survey of Hours and Earnings shows that there is a gap of 2.6% in hourly pay, excluding overtime, between full-time men and women in their 20s; this widens to 5.3% for women in their 30s and reaches 17.5% for women in their 40s. Part-time women workers earn an average 33.3% less per hour than the average hourly rate for full-time men. Two in five part-time women earn less than the living wage.
In the summer of 2014, the TUC carried out its own short online survey of working women, asking those who felt they had been mistreated while pregnant at work, or during or after maternity leave, to describe their experiences. These experiences are categorised and described under 10 headings:
I lost my job. Women are still sacked for being pregnant — 40 years after laws were passed to protect women from this most blatant form of discrimination. The news that they no longer have a job is sometimes delivered shortly after they have told their employer of their pregnancy. Other women find there is no job for them when they are looking to return to work. This may be because their maternity cover has been kept on or because their work has been re-organised while they were away and the employer is reluctant to take them back.
I got unpleasant comments and was bullied. Negative reactions to a woman’s pregnancy at work can sometimes manifest itself in unpleasant comments or a manager questioning a woman’s performance or capability when previously there was no issue with their work. Some managers express personal disappointment when they hear of a woman’s pregnancy, indicating that, in their minds, pregnancy and motherhood mark the end of her career.
I wasn’t allowed paid time off to go to ante-natal appointments. While there is a legal right to such appointments, agency workers have to have undertaken 12 weeks’ service with the same hirer before they qualify for this right.
They still gave me dangerous and risky work to do. There are particular health and safety risks for pregnant women and breastfeeding mothers at work, but employers do not always take proper account of these.
I was overlooked for promotion and training. When employees are pregnant or on maternity leave, they may find they are overlooked when it comes to promotion or they have development opportunities taken away from them.
I was disciplined for feeling ill at work. Half of pregnant women suffer vomiting in pregnancy and 3 in 10 experience nausea without vomiting. The likelihood of women suffering from other conditions such as backache, pelvic pain, hypertension, diabetes, or blood clots is also increased in pregnancy.
They wanted to make me redundant. Redundancies and reorganisations going on at work can place women who are pregnant or on maternity leave in a vulnerable position. They have a new child to support and will find it hard to search for alternative work if pregnant, caring for a new baby or after a period of extended absence from work.
I wasn’t allowed to come back on different hours. Many women may be treated fairly throughout their pregnancy and maternity leave but it is when they start negotiating their return to work that problems arise, especially in relation to working hours.
I was made to feel bad for wanting to breastfeed at work. The Equality Act 2010 states that it would be unlawful maternity discrimination for a service provider, like a café or restaurant, to treat a woman unfavourably because she is breastfeeding (something which has become very topical recently). There is no similar provision that applies to the workplace. However, a woman might be able to argue that it is sex discrimination for an employer to refuse to allow her to express milk or to refuse breaks as only women breastfeed. Health and safety legislation requires employers to provide rest facilities for breastfeeding mothers but there are no specific rights for facilities to express or store milk. The Health and Safety Executive advises that “it is not suitable for new mothers to use toilets for expressing milk”.
I lost pay and benefits because I’d been on leave. Women should return to work with the pay and benefits they would have been entitled to had they not been absent on maternity leave.
The TUC argues that all the above evidence of what is still happening in real workplaces means that, in addition to the legal regime, other changes are needed to secure the aims behind maternity rights. It identifies five things that need to change:
Removal of barriers to justice. Employment tribunal fees should be abolished. Statutory maternity rights will be worth little if most women cannot afford to enforce them. Good practice will be undermined if bad managers know they can get away with discrimination.
Publishing return-to-work rates. Employers should analyse and publish information on how many of their female employees return to work after having children and how many are still in post a year later. EHRC guidance relating to the publication of workforce information under the Public Sector Equality Duty suggests publishing this type of information can be useful. They should carry out exit interviews for those new mothers who drop out of employment and act on their findings.
Better paid leave for fathers. Better paid leave for fathers is needed to open up more opportunities for women to progress at work and for men to care for their children. Couples have had more flexibility to share leave in the first year of a child’s life since the introduction of Additional Paternity Leave in 2011. This has been replaced by Shared Parental Leave. However, there is evidence that few fathers are expecting to take such leave. This is unsurprising given the very low statutory rates of pay for such leave (£138 a week, at the current rate, which is about 40% lower than the national minimum wage for a full-time worker). One of the issues currently facing employers who offer enhanced occupational maternity pay is whether or not to offer similarly enhanced shared parental pay. Offering enhanced occupational pay may encourage more fathers to take shared parental leave. International evidence also shows that fathers are more likely to use leave that is designated as fathers’ leave rather than transferable or shared leave.
Give stronger rights to flexible working. Women will continue to get stuck in low-paid, “mummy track” jobs until flexible working options, such as job shares, part-time and compressed hours become more widespread and fathers use them too. The right to request flexible working should apply from the first day of employment. All parents and carers should be given a stronger basis for challenging an employer’s refusal of a flexible working request. Employers should be encouraged to design flexible jobs and consider flexible work options for all jobs at the point of recruitment.
Learn lessons from complaints. Employers must learn lessons from pregnancy and maternity discrimination cases brought against them. At the moment, about half of employers fail to implement any changes following a finding of discrimination. Therefore, tribunals must have the power to make recommendations that an employer change their practice to protect other women from similar treatment. These recommendations must be enforceable against the employer.
Taken together, the Runnymede Trust and TUC reports appear to contain some salutary lessons for both legislators/policy makers and employers.
The following are the key lessons for policy makers and legislators.
Legislation is more likely to be the beginning of the road to fair treatment rather than the end. Post legislation, there will be a need for a concerted range of supporting measures and policy initiatives, which need to be put in place if the aims of equalities measures are to be achieved. There is a need to monitor impacts over time, and to take further action if there are problems over compliance with the law, or if mere compliance is failing to deliver intended outcomes.
In the latter context, there are legitimate doubts over whether an over-reliance on legislation and compliance (or simply creating legal rights) is the most effective way to secure greater equality. This is something that governments should bear in mind as they introduce further legislation in areas such as zero-hours contracts (which are often used in employment areas where there is a high proportion of women, such as social care). Effective delivery in equalities and employment rights depends on changing culture and attitudes as much as on legal compliance, and achieving such changes is as (if not, more) important for governments as the easier task of drafting and passing new laws.
For employers, especially those in the public sector seeking to meet their equality duties, there is an obvious need to avoid the complacency of assuming that abiding by legislation or drawing up sound policies based upon it can be relied upon to deliver greater equality and better outcomes. Careful monitoring of what is actually occurring in their organisations on a day-to-day basis, and a need to challenge and change prevailing assumptions and practice, will be of key importance.
Drifting Upwards or Sliding Back? Ethnic Inequalities in England and Wales 2001 to 2011, The Runnymede Trust.
The Pregnancy Test — Ending Discrimination at Work for New Mothers, Trades Union Congress.
Steve Vale is a Consultant in Human Resources and is a regular contributor to Croner-i HR for Local Government. Croner-i HR for Local Government is an online employment law and practice reference source designed specifically for HR Managers and their teams in local government.
Last reviewed 8 January 2015