CRE issues draft revised Code of Practice

The Commission for Racial Equality (CRE) has issued a consultation draft of a revised statutory Code of Practice on racial equality in employment*.

The Code will replace the existing statutory Code issued in 1984. Since then, there have been substantial changes to both the legislation itself, as a result of the Race Relations (Amendment) Act 2000 and the Race Relations Act (Amendment) Regulations 2003, and via case law.

Structure

The draft Code starts out with a chapter on the legal concepts used in the Race Relations Act.

This is followed by a detailed chapter on the responsibilities of employers, including developing and implementing a racial equality policy in employment; providing training on the policy; monitoring the racial groups of workers and job applicants; setting racial equality targets, to plan change and measure progress; using positive action to tackle any underrepresentation of particular racial groups in the workforce, or in particular work; and evaluating the policy.

There is then a chapter on good employment practice, looking at recruitment and selection; aspects of management in the course of employment, such as performance assessment, training and development, promotion, harassment and disciplinary and grievance procedures; and employers' responsibilities for former workers.

This is followed by chapters addressed to trade unions, employment agencies and other organisations with additional statutory responsibilities. Finally, there is a chapter directed at workers.

Detail

The draft Code has been criticised for being much too detailed and prescriptive. However, as the Code points out, the pattern of racial discrimination today in the UK is itself complex. The CRE cannot be held responsible for the piecemeal way the government implemented the Race Discrimination Directive.

Nor does the criticism of too much detail take account of the fact that the advice set out in the Code has the aim of giving "employers the practical guidance they need to regulate procedure and practice so that litigation can be avoided". The chapter on the law falls into this category. Thus, in discussing the new definition of indirect discrimination relating to a "provision, criterion or practice", the draft Code helpfully points out that "practice" may be defined as "the customary ways in which an intention or policy is actually carried out. It includes attitudes and behaviour that could amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racial stereotyping."

Harassment

There are some minor quibbles about the CRE's legal interpretation. The section on justifying indirect discrimination could give more detail as to what "proportionate" is likely to mean.

The explanation of harassment suggests that "for a tribunal to uphold a claim of harassment, it must be reasonable to believe that the behaviour in question would have that [harassive] effect, taking all the circumstances into account, including the complainant's view of the behaviour." This, and the illustration that is then given of persistent anti-Welsh harassment, does not acknowledge that the test of reasonableness is not applicable if the harassment has the purpose of violating the other person's dignity or of creating an intimidating, hostile, degrading, humiliating or offensive working environment for them.

Employers' responsibilities

The chapter on the responsibilities of employers advises them to:

  • introduce and implement a racial equality policy in employment;

  • provide racial equality training;

  • monitor the racial equality policy;

  • set targets and timetables within a racial equality strategy;

  • consider taking positive action, to train and encourage workers and others from any racial groups that are underrepresented in particular work; and

  • evaluate the strategy and the policy.

    A sample racial equality policy in employment is included in an appendix, and each of these concepts is explained in very considerable detail.

    Positive action

    There is also some interesting guidance on concrete steps that fall within the rubric of positive action training and encouragement. These are said to include: work shadowing; mentoring; courses on filling in job application forms, interviewing skills and selection tests; courses to develop confidence; courses in skills such as computer programming, and management; short-term work placements in a relevant department; open days for people from the underrepresented racial group; courses, and time off, to improve English language and communication skills; time off for study to obtain further qualifications that will improve promotion prospects; and training programmes developed jointly with local educational institutions.

    Monitoring

    The section on monitoring is extremely detailed, but also provides a tool kit for employers to institute a monitoring system and a framework for other employers to check theirs against it. One interesting point made in this section is that: "Disparities between racial groups do not necessarily mean unlawful discrimination is taking place, but they should be a matter of concern. They should prompt an examination of employment practices to ensure they are operating fairly . . . Taking action to reduce disparities, such as by encouraging job applications from underrepresented racial groups, may be a waste of time and resources if the real reason for their underrepresentation is that they are already applying, but being rejected, for other reasons."

    Racial equality policy

    Where the draft Code perhaps does lose its way is in failing to adequately distinguish between the steps the CRE views as good practice and those it considers are needed to avoid unlawful discrimination. It is also unclear which recommendations are appropriate for private sector employers, and which are relevant for public sector employers subject to the considerably more rigorous statutory duties under the Race Relations (Amendment) Act. This problem is seen in the sections of the draft Code on monitoring, but is even more apparent in its recommendations on the contents of a racial equality policy. Good employment practice is rightly said to be key for employers meeting their legal responsibilities and avoiding claims of unlawful racial discrimination or harassment. Much of the advice that follows in the draft Code is directed to that, but there are other recommendations that are not anchored in legal requirements. For example, all employers are advised to:

    "Include a clause in all contracts for goods, facilities or services requiring compliance with the Race Relations Act by the contractor, his or her staff and any subcontractors and their staff. The clause should also recommend the CRE Code of Practice on racial equality in employment as basic good practice. Contractors, suppliers and agencies should be encouraged to work towards the following minimum standards of racial equality in employment:

  • an effective racial equality policy;

  • a named person is responsible for putting the policy in practice;

  • a racial equality statement in job advertisements;

  • racial equality training for workers and managers;

  • a statement that unlawful racial discrimination and harassment are regarded seriously, and may result in disciplinary sanctions, and even dismissal; and

  • a grievance procedure for complaints of racial discrimination and harassment at work."

    This is all very worthy, but from the standpoint of a private employer, contract compliance is legally irrelevant. Whether the private employer's contractor follows the CRE's recommendations will have no bearing on whether the employer is complying with its legal obligations. It is therefore misleading to make the recommendation in the context of other, sensible suggestions for minimising the chances that the employer does not discriminate unlawfully. To the extent that the CRE considers that a public authority should practice contract compliance as part of its duty to promote racial equality, this should be spelled out explicitly and clearly, preferably in a separate chapter, if not in a separate Code of Practice altogether.

    Consultation on the draft Code ends on 6 August 2004.

    * www.cre.gov.uk/gdpract/employment_code.html.

    Evaluating a racial equality strategy

    What is the appropriate measure of success for an equality policy? The CRE's draft Code sets out some interesting suggested answers:

    "Employers will find it useful to consider the following broad racial equality statements as a compass for deciding priorities, objectives and approaches over, say, five years.

    a. The ethnic and racial composition of the workforce, at each location and level, reflects the composition of the relevant labour markets.

    b. Vacancies attract applications from the full range of qualified candidates in the relevant labour markets, including candidates from ethnic minorities.

    c. The ratio of appointments to applications is equal across all racial groups.

    d. The organisation's board and senior management team reflect theethnic and racial composition of the pool of potential candidates, both internally and externally.

    e. Workers from all racial groups are equally likely to apply for, and be offered, training.

    f. Applications for promotion and deputising are received from across the full spectrum of workers, irrespective of racial group.

    g. Workers spend the same length of time at one grade, on average, irrespective of racial group.

    h. Progress from one grade to another is unaffected by the racial groups workers come from.

    i. Workers are equally likely to be subject to disciplinary proceedings, regardless of their racial group.

    j. All racial groups benefit equally from bonuses or performance pay.

    k. Grievances are not more likely to be brought by workers from any particular racial groups.

    l. There are no complaints of racial discrimination or harassment.

    m. There are no racial disparities between staff leaving the organisation, for whatever reason."