What do workforce equality standards mean for NHS employers?

Author: Nicky Green

Equality is high on the agenda of most NHS employers. Nicky Green of law firm Capsticks explains that, as well as being subject to the gender pay gap reporting regime, NHS employers are required to comply with an equality standard on race, and will be required to comply with a standard on disability from April 2019.

The workforce race equality standard

The workforce race equality standard (WRES) was introduced in 2015 and was mandated by NHS England via the NHS standard contract 2015/16. The aim of the WRES is to expose and help close gaps in equality faced by employees from black, Asian and minority ethnic (BAME) backgrounds so as to achieve fair and equal treatment, in relation to among other things, career progression, disciplinary proceedings and access to non-mandatory training.

The WRES requires NHS employers to report on nine indicators of race equality and the reports compiled from this data are used to analyse progress year on year.

The WRES indicators require information to be submitted on the percentage of BAME staff who report harassment, bullying, discrimination, and the relative likelihood of BAME staff entering a formal disciplinary process as compared to white employees. However, this article focuses on the indicators aimed at addressing career progression.

Career progression

The 2018 report showed that:

• the number of BAME staff employed by the NHS has increased from 17.4% in 2016 to 19.1% in 2018;
• the number of BAME staff employed in band 8a to very senior manager (VSM) positions has increased from 9.7% to 11.2% (although this is clearly not reflective of the 19.1% BAME staff that the NHS employs); and
• 52.4% of NHS trusts have no BAME representation at VSM level.

Pay reporting

There is evidence that BAME staff are generally paid less per hour than white employees. The WRES data suggests that is partly because BAME staff do not progress to higher paid roles as quickly as their white colleagues. In January 2019, in an attempt to address this issue, NHS England published a leadership strategy, which forms part of the WRES. The strategy sets out a target of achieving an NHS leadership that reflects the BAME composition of the NHS workforce by 2028.

While increasing the number of BAME staff in senior roles will help to address the pay disparities that exist between BAME and white employees in the NHS, further regulation to address this matter across all sectors is also being explored by the Government.

Ethnicity pay gap reporting

The Government has completed a consultation on ethnicity pay reporting by employers, following a review led by Baroness McGregor-Smith into race in the workplace (The time for talking is over. Now is the time to act).

The consultation, which closed on 11 January 2019, explored, among other things, what ethnicity pay data could be reported, and what supporting information employers would have to provide. The consultation acknowledged that ethnicity pay information could be reported in a number of different ways and set out three specific options:

• One pay gap figure that compares the average hourly earnings of ethnic minority employees and white employees (this would involve combining all ethnic minority groups into one).
• Several pay gap figures that compare the average hourly earnings of employees from different ethnic groups (using standardised ethnicity classifications) and white employees (this would highlight some but not all of the variations between different ethnic groups).
• Breaking down ethnicity pay information by pay band or quartile (to identify the number of employees from ethnic minority groups and white employees in each pay band or quartile and where the former are concentrated).

The first option mirrors obligations under the gender pay gap reporting regime but there are concerns that one base figure cannot communicate significant differences in pay between different ethnic groups. For example, in September 2018, NHS Digital published a basic pay report using data from the electronic staff record, which showed that, on average, Asian staff had the highest monthly basic pay for both men and women of all ethnic groups in the NHS, including white staff. The data also showed that black staff had the lowest monthly basic pay. These findings suggest that ethnicity pay gap reporting should be more nuanced, if employers are to channel their efforts where they are needed most.

While obligatory ethnicity pay reporting is still some way off, a number of forward thinking NHS employers are already analysing their ethnicity pay gaps to establish the scale of the issue in their organisations and are taking steps to address this as part of their WRES obligations.

Workforce disability equality standard

The workforce disability equality standard (WDES) was published by NHS England in January 2019 and follows the same structure as the WRES. NHS England identified a need for the WDES because of an under-reporting of disabilities by staff. There is a significant discrepancy between the percentage of staff who complete the disabilities field in the electronic staff register (3%) and the percentage of staff who declare themselves to be disabled in the staff survey (18%). NHS England also identified a lack of representation of disabled staff at senior levels. The WDES will look at reports of bullying and harassment by disabled staff and at career development opportunities.

The WDES is due to come into force on 1 April 2019 and, as with the WRES, is mandated by the NHS standard contract. For the first two years following implementation, it will apply only to NHS trusts and foundation trusts.

There are 10 metrics that employers are required to report on, including:

• the percentage of disabled staff at all levels within the organisation;
• the relative likelihood of a disabled member of staff entering a formal capability process (rather than a disciplinary process as a capability process is deemed to be more of a concern) compared with non-disabled staff; and
• the percentage of disabled staff who feel that their employer has made adequate adjustments to enable them to do their job.

NHS England will send trusts and foundation trusts a pre-populated WDES spreadsheet, which will be based on information from the staff survey and electronic staff record. Employers will then need to complete the spreadsheet, check the data and submit it online to NHS England by August 2019. It is understood that NHS England is in the process of developing technical guidance, which will be published shortly.

Action plans

The WDES and WRES expose and explore the inequalities that exist in relation to race and disability in the NHS workforce. However, it is essential to remember that these standards are fundamentally aimed at achieving positive change. Once the data has been gathered and collated each year, the standards require organisations to produce action plans detailing how they intend to address the issues highlighted by their reports.

In developing and updating their action plans, many NHS employers are considering the current culture within their organisations, how to tackle unconscious bias effectively and what steps can be taken to address the lack of diversity at senior levels, including positive action under ss.158 and 159 of the Equality Act 2010. The annual reports required by the equality standards and pay gap reporting and the media attention that they attract mean that equality and diversity will remain a priority for NHS employers for the foreseeable future.