TOWARDSEQUALITY AND DIVERSITY

IMPLEMENTINGTHE EMPLOYMENT AND RACE DIRECTIVES.

FDARESPONSE TO DTI CONSULTATION DOCUMENT 2001/02.

The FDA represents 10,500 middle ranking and seniorcivil servants, senior public servants in related bodies and senior executivesin the NHS. Our civil servicemembership comprises those at former principal or grade 7 levels and above, andthe fast stream entry grades to these.Membership in non-departmental public bodies, inspectorate andnon-ministerial public bodies is at equivalent levels. Our NHS membership is at Trust ChiefExecutive level and immediately below.

This response to the DTI document concentrates on thoseaspects where our members have the greatest interest and contribution tomake. Where relevant and possible weprovide examples arising from our members experiences.

THECASE FOR EQUALITY AND DIVERSITY.

The FDA fully supports the general policy expressed inchapter 1. To this we add our supportfor the wider and more positive initiatives of the Government in the civilservice reform programme and the public services generally, including forexample the duty of public authorities to promote race equality, containedwithin the amended Race Relations Act (RRA) and the extension of a similar dutyon disability in the Disability Discrimination Act (DDA). We urge that similar duties be introduced onthe other matters which are the subject of the Employment Directive. We also recommend that action to advanceequal treatment regardless ofsexuality, religion, disability and age be positively emphasised in theregulations, Codes of Practice and guidance.

The FDA sees strong advantages in a single equalitystatute. Our members, whether asemployees, managers or advisors, have to deal at present with a plethora ofActs and Regulations in which the complexity and differences do not facilitatethe achievement of equality and diversity.Within the employment relationship, this unduly complicates dueconsideration and handling of internal complaints of discrimination. The additional requirement for employees touse internal grievance procedures in the current Employment Bill furtherhighlights the need for simplicity and robustness in the employers handling ofdiscrimination complaints. Consistencyof treatment in the implementation of equality objectives, subject to nodeterioration in existing national laws, can only be advantageous to thisprocess.

The Government at 7.3 also proposes a single,statutory commission offering integrated advice, guidance and support onequality matters. We agree and wouldinclude in its powers those already residing with the EOC, CRE and DRC,particularly those of formal investigation, and the review and recommendationsto Government on legislation. Theyshould also continue to produce statutory Codes of Practice. On the timing of the introduction of asingle, statutory commission, we believe that this should await an evaluationof the experience of the Equality Commission in Northern Ireland. The DRC still also has much work to do toestablish itself.

Enforcement is also a major concern. In the absenceof a single statutory commission of specific similar bodies, we believe thatthe interim arrangements for enforcement under the Employment Directive shouldat least equal those which already exist under other UK anti discriminationlegislation. Codes of Practice alsoplay an important part in providing clear directions and guidance to employersand employees, which carries considerably more weight than non-statutoryguidance. The duty to develop andreview statutory Codes of Practice, currently resting with the three equalitycommissions, should also apply where they are charged with responsibilities forthe new legislation deriving from the Employment Directive. We urge the Government to extend similarstatutory responsibilities to these commissions to review the effectiveness ofthe legislation and advise the Government accordingly, and to have the powersto undertake investigations already accorded under the RRA, the SDA and theDDA.

We bring to the Governments attention theadvantages which can accrue if appropriate and relevant organisations includingtrade unions were able to bring class actions to employment tribunals ratherthan leaving the burden to rectify discriminatory behaviour solely on anindividual. Remedies for the individualwho pursues a case to tribunal, relate to the precise circumstances andbehaviour accorded him or her. They arefrequently not or not easily translated into improvements in organisationalpractice and culture. Provision forclass action by representative organisations such as trades unions,supporting voluntary negotiations, could achieve this better. It would also relieve the workload oftribunals.

CROSSCUTTING ISSUES.

DirectDiscrimination.

The FDA agrees with the approach to direct discrimination.

Indirect Discrimination

The FDA prefers option 1. Where an apparentlyneutral provision, criterion or practice would put persons of (a protectedgroup) at a particular disadvantage compared with other persons, unless thatprovision, criterion or practice is objectively justified by a legitimate aimand the means of achieving that aim are appropriate and necessary.

This single definition is relatively easy tounderstand and apply and could remove much of the complexity facing our membersas managers and employees. It alsoprovides consistency across anti discrimination legislation and itsenforcement. In this it is a small steptowards a possible longer term single equality statute.

Harassment.

The two-fold test of Option 1 is stiffer than thecurrent UK case law and the EC Code, which states that harassment is unwantedconduct of a racial or sexual nature, or other conduct based on race or sexeffecting the dignity of men or women at work. Under the Directive definition, the individual would have toprove that the purpose was not only to violate the dignity of the individualbut also to create that type of environment.

Option 2 is to apply a consistent definition of harassmentacross all the grounds of discrimination covered by the Directive by enshriningthe existing case law definition.

The FDA, after consulting relevant members,proposes a third option, which is a hybrid of these, two. This is option 1, with the conjunction andreplaced by or. Harassment may betargeted at an individual, or be felt by an individual but becharacteristic of the environment overall.Our definition would enable a tribunal to determine if a workingenvironment were degrading or hostile, without this behaviour being solely orspecifically directed at the individual plaintiff. This definition could be applied consistently across the matterscovered by the Directive.

The Government is in addition consideringincorporating a test that, in determining whether behaviour constitutesharassment, a tribunal would have to judge whether a reasonable person wouldhave regarded the conduct concerned as violating the dignity of thecomplainant. The FDA supports this concept if a reasonable person is defined asone who is from the group which has the principal relevant characteristics ofthe complainant. A tribunal would thusbe asked to judge whether for example a reasonable gay employee would judge theparticular behaviour alleged against a gay employee as offensive and amountingto harassment.

PromotingEqual Treatment.

Public authorities now have a general duty topromote race equality. They mustproduce race equality schemes, initially by May 2002. They will in future have a similar duty in respect of disabledpeople. In preparing, implementing andcontinuously reviewing and improving these schemes, public authoritiesincluding civil service departments and agencies, NDPBs and the NHS Trusts are simultaneouslyexamining their application to equality regardless of gender, sexuality,religion or age. The FDA urges the Government to extend the promotion ofequality across all groups covered by equality legislation by implementingparallel duties on public authorities to those contained within the RRA

The alternative is for public authorities toeffectively develop a hierarchy of equalities programmes, strongest whereracial grounds are involved and weakest where the discrimination is on groundsof sexual orientation or religion. Inpractical terms the administrative work and practical implementation of theseschemes would not be greatly increased in many instances by a simultaneousincorporation of these aspects of equality and diversity.

Advice,Guidance and Support.

The FDA does not believe that guidance, adherenceto which is voluntary, has the impact in supporting and reinforcing antidiscrimination legislation of statutory Codes of Practice. We therefore urge that the Governmentextends the provisions that exist under the SDA, the RRA and the DDA to thework of the Commissions designated immediately responsible for the newlegislation, to draw up Codes of Practice which can be taken to account inemployment tribunals.

The Directive recital 33 states Member statesshould promote dialogue between the social partners. The trades unions are a major source ofadvice and support for resolving difficult situations at work surroundingequality issues. We should thereforeplay a major role in the preparation of practical statutory Codes of Practiceand guidance.

In the absence of any institutions specificallyresponsible for effective and practical implementation of the new antidiscrimination laws relating to age, religion and sexual orientation, wesupport these becoming the responsibility of existing Commissions.

As a general principle, the guidance prepared orcommissioned by the Government should be followed up by evaluation of itseffectiveness and reviews to Government of proposals to amend it and thelegislation itself in the light of experience.

OccupationalRequirements.

We agree with the proposal to allow differences intreatment based on for example race or disability where there is a genuineoccupational requirement. We alsoagree that examples should only be listed in guidance so as not to inhibitflexibility. The FDA would indeed gofurther and propose that the provisions under genuine occupationalrequirement are sufficient in the rare instances where it is an essential definingfeature of the job for an employee to be of for example a particular age,religion or sexual orientation. We donot believe the case has been made for further exemptions in the legislation.

We support the amendments proposed to the RRA.

PositiveAction.

The FDA recommends that the Government encourageemployers to be more proactive in promoting equal treatment. Creative programmes to achieve greaterrepresentation of under represented groups have been adopted within the civilservice and we urge that such practices be publicised in guidance and Codes ofPractice. Positive action should not belimited to training as is the case in the existing RRA. We believe that instead the Governmentshould look to utilise the definition in the DDA under which positive action inthe form of reasonable adjustments is required to enable the disadvantagedgroup to contribute and participate equally in employment.

RACE:SOME SPECIFIC ISSUES.

We support the proposals to remove the exemption inrespect of training and skills to be exercised outside Great Britain. We also support the extension of the RRA tocharities and partnerships of fewer than 6 persons.

SEXUALORIENTATION: SOME SPECIFIC ISSUES.

The FDA welcomes the Employment Directive forproviding some protection, for the first time, to employees from unfairtreatment on the basis of their sexual orientation.

Harassment.

28% of gay and 16% of lesbian civil servantsbelieve that unfair treatment has occurred to them due to their sexuality,compared with only 3% of heterosexuals (2001 Civil Service DiversitySurvey). On average 20% of lesbian, gayand bisexual participants felt that they had been bullied, harassed ordiscriminated against, compared with between 12 and 15% of civil servantsoverall.

Lesbian, gay and bisexual members whom we haveconsulted strongly recommend that the Government should use its legislativepowers to go beyond the definition of harassment in the Directive (option 1) inone important aspect: to replace the conjunction and in the clauses of thedefinition with or. They advise thatthis would enable an individual to complain to a tribunal where the environmentis intimidating, hostile, degrading, humiliating or offensive for him or her,but that conduct is not necessarily directed precisely at him or her.

This should be a consistent definition ofharassment across all grounds of discrimination covered by the Directive.

The FDA supports the concept of the reasonableperson as it would apply to sexual orientation if a tribunal had to lookthrough the eyes of a reasonable person who was also a gay, lesbian orbisexual.

Definitionof Sexual Orientation.

The FDA supports the proposal that the Government does not further definethe term sexual orientation but leaves this to employment tribunals andcourts to clarify. In our membersexperience the term homosexual is often used pejoratively, a view also foundin research conducted by Stonewall. Theterm sexual orientation is widely used in equality policies and programmesthroughout the public and private sectors and is understood by employers andemployees. No reasonable civil servantwould infer from the civil service policy against discrimination on the groundsof sexual orientation, that this protected a paedophile or anyone who hadcommitted a criminal act. Nor can webelieve that the courts would so interpret the Directive.

Pay,Pensions and Other Benefits.

FDA members are members of statutory occupational pensionschemes. We strongly believe that theregulations provide protection against discrimination in occupational pensionschemes. Occupational pensions,including those based on a statute, are pay.In the civil service the total pay package is calculated to include thepercentage of costs attributed to pension benefits from the Principal CivilService Pension Scheme. Suchcalculations are also used when the Government makes its submissions to forexample the Senior Salaries Review Body.The alternative logic as expressed in paragraph 12.8 is tortuous andlikely to lead to iniquitous differential benefits between members of the samepension scheme. Finally it is FDApolicy to maximise inclusion within pension schemes regardless of maritalstatus, sexual orientation or disability of staff.

Definitionof religion or belief.

The FDA agrees with the approach of theconsultative document that no further definition should be given to this term.

We are aware that the European Convention on HumanRights, article 9, protects the rights of individuals and groups to believe andpractice religion, subject to the limitation that it does not undermine theprotection and the rights of others.Further, the ECHR protects the right not to believe or the right to holdunconventional beliefs. There is thuslegislation and legal precedents established by the European Court of HumanRights on which the British courts can draw when determining what is areligion or belief.

In employment practice, the impact is most likelyto be dealing with issues such as requests for leave for religious observance,or rules on dress, or in some instances catering for particular diets. There may also on occasion be issues ofharassment of individual employees on grounds of their religious belief orpractice.

Provisionsfor organisations with an ethos based on religion or belief.

The FDA here refers back to our general principle ofconsistency, cohesion and where possible simplicity in equalitylegislation. Differences of treatmentbased on a persons religion or belief may be justified where this is a genuineoccupational qualification, which provisions exist across British UK equalitylegislation. This is set out in article4(1) of the Directive. There is alsomuch European Court and national legal precedent already established.

Article 4 (2) is permissive on member states,allowing them to maintain national legislation in force at the date ofadoption of this Directive or provide for future legislation incorporatingnational practices existing at the date of adoption of this Directive pursuantto which a difference of treatment based on a personal religion or beliefshall not constitute discrimination .The FDA sees no case for expanding thenecessary exemptions in the Directive, as proposed in the consultativedocument.

The FDA believes that the guidance will be especiallycritical on the issue of religion. Itshould be practical and easy to understand.We refer particularly to the Code of Practice in Northern Ireland as amodel.

Disability:some specific issues.

We welcome the proposed changes in Towards Inclusionto expand the duty on the public sector to promote equality of opportunity fordisabled people and to widen its scope to cover most functions of publicauthorities not already covered by the DDAs provisions on access to goods andservices.

Performance Pay Schemes.

The DDA already has a provision whereby an employercan objectively justify discriminating against a disabled person where noreasonable adjustment could enable them, for example, to improveperformance. This is sufficientprovision without any need for change.

Performance pay schemes depend upon performance appraisal,which is often subjective.Disentangling the subjective assessments of line managers from whatmight be an objective difficulty in achieving a performance objective, isaddressed in Equality Proofing in Performance Review in the Civil Service, ajoint Council of Civil Service Unions/Cabinet Office/interdepartmental researchproject done by the Institute for Employment Studies. This concluded that the consistently lower marks for disabledstaff could be due to differential perceptions by managers of theirperformance, differential access to training and development opportunities andother imperfections in the implementation of the schemes.

As the DDAcurrently stands, it is incumbent on the employer to re-examine such schemesand how they are implemented and, if the disadvantage cannot be corrected, tosee if there is any objective justification for the differences. All reasonable adjustments should also bemade to fit the individual disabled member of staffs circumstances andabilities. This in the FDA view is theacceptable way to deal with performance pay schemes.

OccupationalPension and Group Insurance Schemes.

The FDA supports the change in the DDA to delete theexemption for pension schemes which can prevent a disabled person from havingaccess to particular benefits if the cost of providing them would besubstantially greater than for a non disabled person. Pension and insuranceschemes are based on pooled risk. Apension scheme should where at all possible be open to all members ofstaff. Non disabled members of pensionschemes have differential levels of risk in respect of the likelihood ofclaiming particular benefits from the scheme. Yet those who develop particularillnesses are not systematically excluded from pension schemes even though theymay represent overall a greater charge on the schemes than others. Individuals may also be a member of apension scheme for many years then acquire a disability after which it may belawful to discriminate by excluding them from some benefits. Yet with the advent of the DDA, the civilservice instituted a formula to justify discrimination against disabled staffin certain circumstances based on additional cost, so denying a handful ofdisabled staff within a scheme of 1 million members, when the additional costof their inclusion would have been very marginal.

The FDA is not clear as to the thrust of thequestion as framed in 14.21. In ourexperience, which includes some limited experience of private fundedoccupational pension schemes, the scheme rules have not been construed tosubstantially disadvantage a disabled person and therefore would not requireadjustment. If there were to be found aprovision, rule or operation of a scheme which substantially disadvantaged adisabled person, it is the FDAs view that the adjustment should be made to thescheme for that individual, for all the reasons given above.

The definition of disability under the DDA nowincludes HIV from the date of diagnosis.Many, particularly smaller, pension schemes are insured, or particularfor example benefits on death in service within them are insured. The FDA urges the Government to examinecarefully the position insurance companies take in respect of people with HIVnow protected under the DDA and publish a more detailed consultation on whicheffected parties could comment.

Qualifying Bodies

The FDA supports qualifying bodies being covered bythe DDA. Qualifying bodies are in effectthe gatekeepers to professions such as the law. The FDA has several thousand legally qualified members, aproportion of whom are disabled. Wehave no evidence that access of disabled people to legal qualifications hasraised any question over the maintenance of academic standards. The usual test of objective justificationshould apply if such a qualifying body proposed to discriminate againstdisabled people. There are many otherreasonable adjustments, which can be carried out to facilitate access toindividuals with particular disabilities, to these qualifications.

AGE: SOME SPECIFIC ISSUES

Direct discrimination based on age manifests itselfin the civil service in for example failure to promote people from their midfifties; enforced retirement at 60; a strong emphasis in recent years on theneed to recruit and promote bright young things; and some rules related tonon payment of for example relocation expenses to those aged 55 and over. Indirect discrimination may occur forexample where annual leave entitlements are related to long service (e.g. 30days after 10 years service).

Recruitment

There may be objective justification for specifyinga particular age group when recruiting staff, depending on the precise natureof the job for which a person is recruited.However, civil service recruitment is not normally to a job but to arange of white-collar office jobs within a grade. It seems most unlikely inthese circumstances that he employer could justify a minimum or maximum age.

Training

The FDA does not support in general the use ofexceptions and would not support the same in training. The objectivejustification test, or genuine occupational qualification, is sufficient for anemployer to justify such discrimination should it be necessary.

Payand Non Pay Benefits.

The FDA believes that an employer could for examplejustify additional annual leave related to length of service where this was toretain or motivate experienced skilled staff.

Annual incremental pay systems would be objectivelyjustifiable where they meet the conditions laid down by decisions of theEuropean Court in respect of sex discrimination and equal pay between thesexes.

Redundancy.

The civil service on occasion activates voluntaryseverance and early retirement packages under which the benefits are calculatedin accordance with a combination of age and length of service. The FDA believes that such packages can beobjectively justified where the employer had an express policy under whichpayments related to the need to reduce or retain specific groups of staff; thefinancial losses suffered by different age groups or those with differentlengths of service when they are made redundant; and alternative prospects foremployment elsewhere. These potentialjustifications are not meant to be exhaustive.Voluntary early retirement as a result of redundancy is restricted tothose aged 50 or over also partly because of Inland Revenue rules, which mayalso need further examination.

Retirement.

Article 6 (2) of the Directive enables memberstates to provide for the fixing of ages for admission to or entitlement toretirement benefits and that this would not constitute discrimination on thegrounds of age, provided that it does not result in discrimination on the groundsof sex. The FDA notes that there is norequirement under the Directive for the Government to change the presentposition where employers can fix employees retirement age.

The FDAs major concern is that the current civilservice retirement age is too rigid, for example 60 for all Senior CivilServants. The FDA policy is for aflexible retirement age of between 55 and 65, within which age range the civilservant could retire on full accrued pension entitlement. At present the pension entitlement isreduced if they retire below 60 by a considerable amount for each month theyretire early.

The FDA is currently consulting amongst ourrepresentatives and members on the wide range of complex and on occasionconflicting interests raised by legislation against discrimination on thegrounds of age. Retirement age is an important aspect of this. We note the longer time frame on this strandof the Directive and hope to input more precise views in future consultationssurrounding it.

The advantage if there is a fixed age by which aperson must retire and then draws their full pension is that the individual canplan their financial affairs and future life well in advance. The employer canalso more easily plan personnel and career development for all staff. A disadvantage if there was no fixedretirement age is that individuals rights of access to employment tribunals forexample would be extremely variable or alternatively the Government would haveto change the legislation governing employment tribunals so that there was norestriction on access to them related to age.