Achieving police diversity without breaking the law

Many police forces in England and Wales have been set challenging, if not impossible, targets for the employment of ethnic minorities and women. In this article, Jayne Monkhouse* argues that even if the law were changed to allow positive discrimination, enabling police forces to achieve those targets, it would not produce a police service that embraces diversity. She explores how organisations need to address cultural change as a pre-requisite to achieving the target numbers.

Earlier this year, Avon and Somerset police force made headlines by admitting that it had unlawfully discriminated against white men in the recruitment process for police officers. It was reported to have selected black and ethnic minority candidates who had successfully completed the selection process rather than the white candidates in the same position, in order to meet Home Office targets for the employment of police officers from ethnic minority groups.

In 1999 the Home Office set an overall target for the police service of 7% black and ethnic minority persons in employment by 2009, with individual police forces being given targets to match the number of employees with the proportion of their local ethnic minority population within the 10-year period (EOR 85).

Targets can be a useful means of promoting change in a workforce and have been widely used to measure progress on equality and diversity. But, to be successful, they need to be set and owned by the organisation as part of a comprehensive action plan to achieve a diverse workforce. The Home Office figures were imposed on the police with little or no discussion as to whether the targets were realistic or achievable. The targets required proportional representation in employment, rather than in recruitment. For many forces the targets were impossible to achieve, as they did not have sufficient recruitment opportunities available in the timescale, even if everyone recruited in the 10-year period was from an ethnic minority background.

With just over two years to go to the deadline, it is clear that many police forces will not meet the targets. More than one-third (35%) of police forces have met or exceeded the target already. However, it is the smaller police forces and those with relatively low targets that have managed to meet them. The larger metropolitan forces, in areas with high ethnic minority populations, are far from achieving their targets (see table 1).

Chief officers are therefore searching for ways to transform the employment profile of their forces, but it is clear that few forces understand the requirements or the opportunities in the discrimination legislation and consider that it restricts them rather than enables them to recruit the people they need to meet the targets.

The police service is not alone in believing that the discrimination laws act as an obstacle to achieving diversity. The provisions in the legislation that facilitate change - the positive action provisions and the genuine occupational qualifications or requirements - have become extremely complex. An outline of positive action provisions is set out in box 1.

There seems to be a common misconception that good intentions can answer a claim of unlawful discrimination - if, for example, an employer is discriminating "positively", responding to customer preferences or seeking to meet set targets, there is a mistaken belief that this will provide a defence to a discrimination claim. Although there are some roles that can lawfully be restricted to members of particular groups under the provisions allowing for genuine occupational qualifications or requirements, these are rare and do not offer the scope to transform the diversity balance in an organisation (see box 2).

The chair of the Commission for Racial Equality (CRE), Trevor Phillips, is leading a government review of the equality legislation (the Discrimination Law Review; see Trevor Phillips to head discrimination review) with a view to developing a single equality Act that extends the same protection to all discrimination strands, overseen by the new Commission for Equality and Human Rights. It is hoped that as a result of the recommendations emerging from the review, the law will become more straightforward and consistent. The final report is now expected in February 2007.

Genuine occupational qualifications or requirements

In very specific circumstances, the nature of a job, or the context in which it is carried out, means that there is a genuine and determining qualification or requirement for someone from a particular group to undertake the role. The restriction must be applied in a proportionate manner - it must be necessary and appropriate in all the circumstances.

There is undoubtedly a small number of roles undertaken by police officers that have to be done by a person of a particular gender (for example, being present when intimate samples are taken after a sexual assault or when a prisoner is strip-searched). There may also be roles that need to be performed by persons from a particular racial or religious group (for example, when an officer works undercover with a particular racial or religious community). But this accounts for a small minority of roles and would not help to achieve the employment targets.

Calls for changes to the law

In the face of these apparent restrictions, and because change is happening so slowly, several chief police officers and the National Black Police Association have called for the Race Relations Act 1976 to be changed to allow "affirmative action" so that police forces can select candidates from black and ethnic minority backgrounds from a pool of successful candidates (Met considers quotas for ethnic minorities). This is, in effect, positive discrimination. The president of the British Association of Women in Policing, who is the chief constable of Cambridgeshire, Julie Spence, has also backed the call to change the Sex Discrimination Act 1975 to create a 35% quota for women in the service.

Religious quotas in Northern Ireland

In calling for these changes, comparisons have been made with the situation in Northern Ireland, where an exemption to the discrimination laws was introduced in the Police Service (Northern Ireland) Act 2000 allowing the police service to recruit Catholics and non-Catholics on a 50:50 basis.

This exemption was in response to a very specific and difficult political situation in Northern Ireland at the end of the 1990s. The Royal Ulster Constabulary (RUC) was at the heart of the conflict that had affected people from both Catholic and Protestant communities. In May 1998, there was a vote in favour of the Good Friday Agreement, which set out a peace process for Northern Ireland. Policing was regarded as a particularly difficult issue.

In 1999, the report of the Independent Commission on Policing in Northern Ireland, (the Patten report) laid out a framework for the implementation of the Good Friday Agreement. In respect of policing, the report stated that "community policing is impossible if the composition of the police service bears little relationship to the composition of the community as a whole". The report recommended a number of steps that were designed not only to change the numbers of police officers from different religious backgrounds, but also to change the entire culture of the police organisation. These included:

In 1998, more than 40% of the population of Northern Ireland was Catholic, but only 8% of police officers were from the Catholic community. The Patten report projected that the 50:50 recruitment policy would produce a police service that was around 30% Catholic within 10 years. But, crucially, the report stated that recruitment was to be on merit (all recruits had to pass the selection process and were selected from the successful pool on a 50:50 basis), and that the policy should be subject to interim parliamentary review.

The policy has not been without its critics. However, a legal challenge was unsuccessful. In 2002, a 19-year-old Protestant, Mark Parsons, sought a judicial review of the policy after he was refused entry to the PSNI despite scoring higher in the entrance tests than some Catholics who were accepted. Dismissing the application, the Belfast High Court ruled that "the need to correct the imbalance in the police service was undeniable''.

More recently, in March 2005, government minister Ian Pearson told the House of Commons that the policy has led to 440 Protestant applicants being discriminated against, but that the proportion of Catholic police officers in the PSNI was 17.18%, with 1,733 recruits having been selected for appointment on the 50:50 basis, and that "the government [was] on target to achieve 30% Catholic representation in the PSNI by 2011".

Although the policy to increase the number of Catholics in the PSNI has proved successful, in that the numbers are likely to be achieved, it has been argued that this was not solely down to the quota. In the same period, the number of female new recruits has also increased, to 38%.

Recent research¹ into positive discrimination as a means of achieving gender equality in the police service in England and Wales looked into the PSNI 50:50 quota. Professor Jennifer Brown, the author, concluded that there were few lessons that could be transferred from the situation in Northern Ireland to improving the representation of other minority groups in the police service in England and Wales. She said the PSNI policy was implemented as part of a dramatic shift in police culture during a time when an entire society had made a democratic decision to move towards a state of non-violence. The 50:50 policy was a necessary part, but not the whole, of this culture change.

Monitoring

Monitoring police force statistics can show where the problems of potential discrimination lie, but the data are far from comprehensive. Home Office statistics indicate that the police service has had difficulty attracting people from minority groups to join the service, and has also had great difficulty retaining them.

In March 2005, the police service in England and Wales employed 142,795 full-time equivalent police officers. Of these, 21% (30,162) were women. The proportions of both women and ethnic minorities have increased slowly and steadily in past decades. In 1970, women made up less than 5% of all officers and in 1990 they had reached only 10%. Black and ethnic minority officers made up just 2% of the police officers in 1999, when the representation of black and ethnic minority people in the workforce was 7%. In 2005 they made up 3.5% (5,017) of the total number of police officers, which is below the Home Office 2004 milestone of 4% for measuring success.

Retention rates for women and ethnic minority groups also have a major impact on the forces' ability to meet the targets. The mean length of service for women officers in 1990 was reportedly just over eight years². Current data show that only a quarter of all women have more than 15 years' service, compared with nearly half of men. Ethnic minority recruits also leave the service early in disproportionate numbers. In 2004/05, 12.6% of all ethnic minority recruits left in the first six months, compared with 7.6% of white recruits. However, this represents a reduction from 17.8% and 7.8% respectively in 2003/04³.

If the retention rate for black and ethnic minority recruits could be matched to that for white recruits, police forces would be considerably nearer to meeting their targets. Further, the wastage rate represents not just the initial loss to the police service of those officers, but possible further losses, which cannot be measured, created by the message sent to other potential recruits by those officers who take their negative experience back to their community.

Culture change

The data indicate that controlling the numbers being recruited into the service will not have a major impact on the diversity of the police. What they show is that considerable work needs to be done to improve the culture of the service in order to retain women and ethnic minorities. The lesson to be learnt from the Northern Ireland experience is that manipulating the numbers does not work in isolation, but a root-and-branch approach to changing the culture can actually encourage more people from under-represented groups to apply - in Northern Ireland not just more Catholics but also more women applied to join the service.

Increasing the number of people from under-represented groups will not, by itself, deliver diversity to the police service. It could arguably make things worse. The discrimination legislation is based on the overriding principle of merit irrespective of a person's race, gender or membership of any other protected group. Jobs should be awarded on merit alone. In this way equality is seen to benefit people from all groups and to bring benefits to business.

Good equality practices increase staff confidence and commitment and can enhance an organisation's reputation for corporate ethical and social responsibility. The employment of people from a diverse range of groups brings flexibility and can increase an organisation's ability to deliver its services to a diverse community. Conversely, the operation of discriminatory practices in an organisation can adversely affect staff morale and public confidence. Those from majority groups can resent the perceived unfair advantage given to those from minority groups and this resentment can lead to harassment. Those from minority groups can also resent the fact that they have been selected unfairly when they want to be valued on their own merit.

Like all organisations, the challenge for the police forces is to deliver on diversity while not derogating from the requirements of the discrimination legislation. A fundamental principle of policing is that officers should act without fear or favour, and this principle applies to employment as well as to the delivery of a policing service to the public. Diversity will not be achieved by a change to the discrimination laws simply to get the numbers up. The principle of non-discrimination has to be embedded in the working practices of the police service.

Non-discrimination does not mean providing everyone with the same terms and conditions of employment. Some people need different ways of working to take advantage of job opportunities. If police forces are to support the different needs of a diverse workforce they must get away from the "one size fits all" approach to the job.

More under-represented people would be attracted to the police service if some basic practical changes were made. For example:

Going further - using positive action

The discrimination laws allow for the principle of non-discrimination to be restricted in certain circumstances in recognition that people from certain backgrounds have suffered discrimination in the past. The laws allow for employers to provide special treatment, known as "positive action", for groups that are under-represented or have been disadvantaged in their access to the workplace, so that everyone can compete for job opportunities on a level playing field. Positive action is a legal means of increasing the pool of suitable applicants from minority groups. It can open up opportunities to a wider range of people and bring about real and lasting change to an organisation's employment profile.

The circumstances in which positive action can be used are different under each equality strand, and there is no real clarity about the legality of certain activities (see box 1, p.16). Broadly, actions that encourage members of under-represented groups to participate or compete in the workplace, short of selection, are lawful. For example:

Police forces have made little use of the positive action provisions. Few have run any positive action events at all, and none has produced a comprehensive positive action plan. The CRE has said that the police service should use all possible lawful means to increase the numbers of black and ethnic minority officers before they argue for a change in the law.

However, Trevor Phillips, chair of the CRE, subsequently reopened the debate about changing the law in a speech to the Social Policy Forum on 19 June 2006, saying that the current race legislation needs to change to make the police and security forces fit for purpose when dealing with terrorism by increasing the levels of Muslims in their teams.

He drew an analogy with the situation in Northern Ireland, saying: "The law had to be changed to allow the Police Service of Northern Ireland to recruit half of all its new recruits from the Catholic community. I can't say for certain whether I think we should go down this road; and if we do, how exactly we'd do it. But I do know that we have to debate such measures if we are going to avoid the spectre of a mainly white security and justice apparatus policing increasingly aggrieved and hostile black and Asian communities."

Conclusion

There is no easy answer to increasing diversity and changing a culture, but the principle of non-discrimination is too important to be cast aside without compelling reasons and before all legal means of increasing diversity have been tried. An increase in the visible diversity of the police service will increase its legitimacy with the public, but as Avon and Somerset police force found to its cost, the means chosen to achieve this goal need to be carefully thought through. Fiddling with the numbers will not achieve change. The police service should first develop employment practices that support diversity and use lawful positive action to attract and retain people from minority groups.

¹ Brown, J Playing with numbers, discussion paper for the British Association of Women in Policing, 2006.

² Fletcher, MP Policewomen returners as a recruiting strategy, Hampshire Constabulary, 1990.

³ Race equality: the home secretary's employment targets, report 2005, Home Office, March 2006.

*Jayne Monkhouse is an independent equality advisor retained by the Police Superintendents' Association of England and Wales. She previously worked at the Equal Opportunities Commission.

Table 1: Examples of progress on ethnic minority targets for police officers

Source: Race equality: the home secretary's employment targets, report 2005, Home Office.