Disparities in outcomes revealed by Government Audit
The recent publication of the Government's Race Disparity Audit attracted a great deal of media interest. It was back in August 2016 that Theresa May ordered an audit of public services to identify how outcomes differ for people of different backgrounds.
The Audit comprises data collated from 130 data sets across public services including health, education, the criminal justice system, housing and employment. None of the data is new but it is now held in one place, the new website, Ethnicity Facts and Figures.
The Audit states that in the UK 87% of people are White and 13% Black, Asian, mixed or other ethnic group. According to the Audit, there are huge disparities, for example, in relation to house ownership and educational attainment. As for employment levels, employment rates are higher for white people than ethnic minorities and there are significant regional variations. The gap in the north, 13.6% is higher than in the south, 9%.
The Government is expecting local and national service providers to look at the data to identify where improvements need to be made. Following publication of the Audit Theresa May said that she was "not sure at this stage" what legislation may be needed in the future.
Rebecca Ireland, partner in Blake Morgan's Employment law team commented, "As regards to the employment rates for BAME individuals highlighted in the Audit, promoting diversity in recruitment becomes key for employers. Employers can of course be liable for discrimination in relation to race, religion or belief in recruitment (and in relation to other protected characteristics such as age). This could include the format and content of application forms, arrangements for interview (such as location and timing), the job description and person specification. But it's not only recruitment that needs to be addressed. Promotion and career development need to be carefully looked at too. Employers also need to reduce the risk of unconscious bias by ensuring that recruitment or promotion interviews, sifting and assessment processes are carried out by more than one person and reflect a mixed age, race and sex to reduce the risk of unconscious bias. Employers could also look at mentoring programmes or appointing BAME champions as a way of bringing a culture shift, and encouraging current BAME staff to come forward for promotion or recommend friends or contacts for job vacancies.
"Interestingly, in 2016 the Civil Service and NHS announced that it will introduce "name-blind" recruitment practices by 2020. This followed the then Prime Minister, David Cameron's announcement in October 2015 that the measure would be introduced to remove unconscious bias and inequality in recruitment in the public sector and to ensure that jobs should be awarded on merit. Whilst there has not been much further detail on whether this will be taken forward across the board, the Audit could provide the impetus for other public sector organisations to move the initiative forward. In the private sector KPMG, HSBC, Deloitte, Virgin Money and the BBC have all committed to implement name-blind CVs for all graduate and apprentice roles.
"Employers should remember they are vicariously liable for the acts of their employees during the course of their employment (as well as employees potentially being personally liable). To reduce the risk of liability for any discriminatory recruitment or promotion processes, all employers should have in place an equal opportunities policy and ensure that all staff involved in recruitment or promotion decisions have received thorough training on equality and diversity.
"In March this year, the Race in the Workplace report was published saying that employment rates for people from BAME backgrounds are 13 percentage points lower than white counterparts at 62.8%, and that just 6% of executive jobs are held by BAME workers. At the time listed companies were written to and encouraged to produce a breakdown of their workforce by race and pay. There was even a suggestion that if the issue was not tackled voluntarily, legislation could be introduced.
"Although we know that many employers are strongly committed to improving BAME diversity in their workforce, the results of various diversity initiatives have been mixed. In relation to gender pay reporting, the voluntary approach was largely ineffective which led to the current gender pay gap reporting legislation. Interestingly in Northern Ireland, where similar gender pay reporting regulations are being introduced, the regulations are expected to require data about ethnicity and disability, as well as potentially a hefty fine for non-compliance. This is different from the rest of the UK where the gender pay legislation does not include any penalties for non-compliance. The difficulty with introducing any pay reporting on ethnicity could be the way it is broken down, if at all, into the number of ethnic groups used in the last census – compared to gender pay reporting where, for the most part, only two groups are being compared.
"As to other options to improve diversity, there has been a long-standing reluctance to impose quotas in any form and, whilst we have positive action under the Equality Act 2010, this is within very defined limits. Positive action shouldn't be confused with positive discrimination, which remains unlawful.
"It remains to be seen whether or not these previous reports and the published Audit will actually lead to a change in practice or whether the Government will consider further legislation in England. Interestingly in Wales, public listed authorities are already under a specific equality duty to publish recruitment, promotion, training and other information for all protected characteristics, including race and ethnic origin."