Developing positive action policies: Learning from the experiences of Europe and North America

04/07
6 March 2007
MPA briefing paper

Author: Alan Johnson (Policy Officer, Human Resources), MPA

This briefing paper has been prepared to inform members and staff. It is not a committee report and no decisions are required.

Summary

This report was commissioned by the Department for Work and Pensions (DWP) from the University of Bristol and considered a range of options that would support increases in black and minority ethnic (BME) employment rates and identify good practice in terms of the implementation of policies that improved representation.

The aim of the study was to:

• review positive action labour market policies in Europe and North America;
• explore how these policies were implemented and identify which organisations were involved in the development and implementation of these policies;
• establish whether and in what respects these policies have been deemed successful in improving ethnic minority employment rates and social mobility; and
• reflect on the lessons to be learnt from these experiences for the UK.

The report looked at a number of countries with ‘positive action’ policies.

Netherlands

The Dutch Equal Treatment Act which dealt broadly with equalities issues and the law on the Encouragement of Proportional Labour Participation by Ethnic Minorities (the Equity Law), allowed for positive action measures to be used to reduce under-representation of BMEs (primarily Turks, Surinamese, Moroccans, Dutch Antilleans and others of non western origin) in the workforce. The Government also introduced voluntary, non-binding contracts between the Government and the trade association for small and medium-sized businesses to increase minority representation.

These developments have not been wholly successful and the report suggests that, from this experience, neither race equality laws nor the introduction of voluntary agreements necessarily guarantee results and that political will is also needed. In addition, measures to improve representation need to be supported by enforcement mechanisms if employers are to comply. For employers, these measures need to be ‘bureaucracy-light’ and free of red tape if employers are to embrace these schemes with any degree of enthusiasm.

It also suggests that attention needs to be paid to ‘supply-side’ issues, ensuring that BME job skills levels are addressed through education and skills training. Finally, the experience of the Netherlands suggests that the small-scale direct approach can be highly effective in addressing high levels of BME unemployment. In particular, schemes that assist co-ordination between employers and the unemployed.

Northern Ireland

Northern Ireland is considered to be in the forefront of employment equality law since the Fair Employment (Northern Ireland) Act (FEA) 1989. The FEA makes discrimination on grounds of perceived religious affiliation and/or political opinion unlawful in employment, in the provision of goods facilities and services, the sale or management of land or property, further and higher education, and partnerships and barristers. The legislation covers direct discrimination, indirect discrimination and victimisation and specifically allows “affirmative action” (preferential treatment).

The developments in Northern Ireland suggest that the introduction of proactive equality measures accompanied by the political will to bring about social change can have a significant impact on employment equity. Whilst the available research does not establish a direct causal link between the introduction of the Fair Employment Act and greater employment equity in Northern Ireland, it is not unreasonable to conclude that to a greater or lesser degree, it was the combination of wider attempts to end the conflict, and to actively tackle discrimination in the workplace that have resulted in significant social change.

The case of Northern Ireland and positive action on religious equality in employment may also be particularly pertinent for Britain at a time when many Muslims, Sikhs and others complain of religious discrimination, when the most disadvantaged groups in the labour market are Muslims, and when discussion about Muslims and integration is dominating the agendas of the Commission for Racial Equality and others.

United States

Discrimination in education was the original target of civil rights cases because education was seen to be the gateway to other opportunities. Overall, the lessons from the experience of 45 years of affirmative action in the US is that policies which simply favour a minority candidate on the grounds of race, where objective measures indicate that candidate is less qualified, do not carry popular support – even amongst blacks and minorities. Successful legal challenges have outlawed some quotas and disallowed some automatic ways of favouring BME candidates. However, affirmative action programmes, including the use of targets and timetables, did find both popular and legal support inasmuch as race was one of a number of factors that may be taken into account.

The US experience is that the continuation of affirmative action programmes requires a continual review in relation to effectiveness, business efficiency and fairness. Arguments against focus on the use of targets to discriminate against equally qualified or better qualified candidates. Supporters argue that it is needed to offset social and economic disadvantage.

In terms of employment, affirmative action is considered unlikely to be successful without an adequate supply of suitably qualified and trained individuals, in particular graduates and professionals, and there continues to be a shortage of black and Hispanic graduates and trained professionals. In Britain, there is not a parallel shortage of suitable BME candidates as a whole.

However, an important lesson appears to be that one of the most effective instruments for promoting positive action in employment is contract compliance by the government as a purchaser of goods and services. This is because the government is able to impose higher standards of equality on the grounds that it is taxpayers’ money that is being spent; governments hesitate to impose equivalent duties upon private sector employers so as to not seem overly intrusive or alienate the engines of the economy.

However, contract compliance provides a direct benefit, namely government contracts. Moreover, the taxpayer has a right to see equality where his/ her money is spent applies as equally to government spending as to the government as an employer.

Canada

The Employment Equity Act (1995) is framed in terms of ‘employment equity’ for BMEs, but the complex provincial and federal framework means that it only applies to the public sector and certain commercial sectors.

Overall, the Canadian experiences suggest that, expectations of employment equity have generally been high, whilst Canada’s positive action policies have not generally been as successful as they might have expected. This may be due to the large continuous flow of migration, which results in high levels of people with on average limited Canadian linguistic facility, work skills, appropriate qualifications, cultural and appropriate interpersonal skills.

Nonetheless, comparative evidence indicates that levels of BME disadvantage are low in Canada, although there is little direct evidence that positive action policies have been responsible for these comparatively low levels of disadvantage.

The Government’s contract compliance programme is regarded as ‘stronger and more comprehensive’ than other Canadian programmes. However, research suggests that care must be taken to ensure that Government initiatives must be carried through to provincial levels of government. In this context, the implementation of a contract compliance programme needs to be well resourced and should entail mandatory goal-setting and vigorous enforcement, including sanctions, by Government.

General summary

The cross-national research suggests that there are a number of requirements if forms of positive action are to be successful. These include:

• Political will. The introduction of proactive equality instruments accompanied by the political will to bring about social change can have an observable impact on employment equity and the success of positive action policies.
• Economic rationale. The rationale for these policies should also embrace the business case for employment equity.
• Statistical data. Detailed statistical data is needed to pinpoint which group or groups require positive action and to evaluate the impact of programmes that incorporate targets or timetables for such groups in quantitative terms.
• Contract compliance. International experience suggests that contract compliance is an effective positive action policy, changing employers’ practices with minimum pain and resistance and resulting in improved employment and retention rates. The experiences of the USA and Canada suggest that the creation of an institution responsible for overseeing contract compliance programmes is crucial for the effective implementation of the policy. The implementation of a contract compliance programme needs to be well resourced.
• Targeted agreements. The experience of the Netherlands suggests that the small-scale direct approach can be particularly successful.
• Enforcement mechanisms. In addition to being clearly and coherently explained and defended, positive action policies need to be backed up by robust enforcement mechanisms if employers are to comply. These should entail mandatory goal-setting and vigorous enforcement, including sanctions, by government.
• Bureaucracy-light. The policies need to embrace the scheme with any degree of enthusiasm. Too much red tape risks alienating employers. However, the production of statistical data and regular programme reviews are needed.
• Supply-side. BME education and job skills levels need to be addressed. This may include both religious and BME equality measures.

Conclusions and implications

The evidence from this research has shown that there can be clear benefits from a programme of positive action. Existing policy approaches have been limited to redressing inequalities.. In the view of the researchers, a government committed to eradicating social exclusion can legitimately and confidently engage with a programme of positive action, which includes contract compliance.

Implications for the Metropolitan Police Authority (MPA)

The Discrimination Law Review was set up following a Labour manifesto commitment to introduce a Single Equality Act within the lifetime of this parliament. It has a remit ‘to develop a simpler, fairer legal framework that fits the needs of 21st century Britain’. It is considering the opportunities for creating a clearer and more streamlined equality legislation framework in order to produce better outcomes for those who experience disadvantage. Key areas of work will include:

• A consideration of discrimination legislation and its underlying concepts;
• An investigation of different approaches to enforcing discrimination law;
• An understanding of the evidence of the practical impact of legislation in tackling inequality and promoting equality of opportunity; and
• Consideration of the opportunities for creating a simpler, fairer and more streamlined legislative framework in a Single Equality Act.

The Greater London Authority (GLA) recently hosted two seminars on the Discrimination Law Review. There were a large number of speakers from across the equalities spectrum, including older people, the Disability Rights Commission, 1990 Trust, Stonewall, Muslim Council of Britain, Women and Equalities Unit, academics, practitioners (including Sir Herman Ouseley), trade unionists and activists. Lee Jasper chaired the events. All of the speakers agreed on one thing, the Review is the first opportunity in 30 years to fundamentally improve anti-discrimination law and tackle inequality – and there will not be another opportunity for another 30 years. A summary of the issues discussed is at Appendix 1.

Next steps

There will be a Green Paper in the Spring of 2007 that will enable wider consultation, but probably for a very limited period. The Authority may wish to consider a paper to CoP or full Authority around, for example, the issue of time limited positive discrimination or contract compliance. An earlier briefing paper to Members covered ‘positive discrimination’ in some detail, but the GLA and ACPO are very strong proponents of this concept.

Peter Fahy, Chief Constable of Cheshire, told a Home Affairs Select Committee that at the current recruitment rate it would take at least 17 years to achieve a service that was fully representative of the racial make-up of modern Britain. He insisted there was a "strong operational case" for recruiting more officers from BME communities, as Britain had a tradition of policing by community consent.

After the committee meeting, Mr. Fahy said the Government had apparently made it clear that affirmative action involving quotas was "not politically acceptable. However, he said politicians should consider the issue before they criticised police for not meeting BME targets.

For the MPA, the Equality Impact Assessments carried out as part of the various race, gender and disability equality duties include procurement strategy and procedures. The Disability Rights Commission’s code of practice points out that authorities must meet its obligations under procurement and should include “a requirement in every contract that the contractor must comply with the anti-discrimination provisions of the Act” and specify “what evidence the contractor may need to gather for the authority to demonstrate its compliance with the general and specific duties”. Similar conditions are contained in the gender equality code of practice.

These codes of practice suggest the UK is well on its way towards contract compliance as a mechanism for helping anti-discrimination law.

Appendix 1

Summary of the issues discussed at GLA seminars on the Discrimination Law Review

A consideration of discrimination legislation and its underlying concepts

A number of speakers stressed the importance of a clear understanding of the objectives of a Single Equality Act to promote a more equal and fairer society. In particular, attention was drawn to the current differences between equality legislation, e.g. the Disability Discrimination Act permits positive discrimination in favour of disabled people in a way that would be unlawful in relation to race, gender, sexual orientation, religion or age.

The prevailing opinion of speakers, particularly those with some legal training, was that the different strands of legislation that currently exist are not easily or properly enforced. It was argued that this was not simply because the legislation was piecemeal and un-coordinated, but because there was a lack of knowledge of the law on the part of employers and employees.

The role of the current statutory bodies, i.e. the Disability Rights Commission, the Equal Opportunities Commission and the Commission for Racial Equality did not properly monitor or enforce the legislation. Consequently the forthcoming Commission for Equality and Human Rights (CEHR) needed to have sufficient power and funding to both promote and enforce legislation, and to take individual cases.

An investigation of different approaches to enforcing discrimination law

Once again, the Disability Discrimination Act was identified as an act that needed to be replicated across other equality strands. The Act creates a positive duty to make ‘reasonable adjustments’ to allow for the needs of disabled persons to be met. This provision is not included in other UK equality law, where actions have an individual focus. Other legislation, e.g. equal pay, only covers gender and not other forms of potential pay discrimination.

The problems identified as inherent in individually focused remedies was that, even if an individual is able to find the resources and evidence needed to lodge an Employment Tribunal action, he or she is only likely to receive financial compensation. The Employment Tribunal may make a recommendation for corrective action, but it only addresses the particular claimant and not the effect of discrimination on the workforce more generally.

A number of speakers drew attention to Canadian law which uses a concept of reasonable ‘accommodation’ that includes adjustments to a rule, practice, condition or requirement, so as to take into account the specific needs of an individual or group.

An understanding of the evidence of the practical impact of legislation in tackling inequality and promoting equality of opportunity

The thrust of the discussion centred upon the practical and actual differences between public and private sector. In particular there was a need, for example, to extend the public duties around equality schemes to the private sector with respect to employment before the gap between best practice in the public and private sectors increases further.

There was also a very strong view that many employers did not have an adequate understanding of the standards they are required to meet in order to comply with the plethora of legislation preventing discrimination. Whilst many employers have equal opportunities policies, these were not monitored and were only tested as part of a grievance or Employment Tribunal.

Consideration of the opportunities for creating a simpler, fairer and more streamlined legislative framework in a Single Equality Act (SEA)

Broadly speaking the arguments put forward suggested the SEA should cover legislation and best practice related to discrimination, rights and protections, pay, part time and flexible working and should bring together provisions from other forms of employment protection and health and safety legislation. A code of practice that covered all areas of equality should lead to employers and employees gaining a better (and common) understanding of their rights and duties.

There was extensive – but not unanimous - support for the principles of time limited, positive discrimination, similar to that in Northern Ireland in relation to the Police Service of Northern Ireland, to play a more central role in improving employment inequalities. At present UK law allows positive action in restricted circumstances, but does not promote it, whereas European Union law permits a wider approach.

Similarly, Canadian law was put forward to support the argument that some people may need to be treated differently in order either to redress broader social disadvantage. It was felt that treating everyone the same sends the clear message that if people fail after receiving equal treatment this is the result of their own limitations and choices. In doing so, it was argued, the legislation fails to recognise other barriers (such as unnecessary job criteria, rigid dress codes or inflexible work practices, poor education opportunities etc) may need to be removed to create a more level playing field.

Trade union approach

The trade union representatives welcomed the Discrimination Law Review and suggested there should be a ‘Genuine Organisational Requirement’ where the organisation was not representative of the local community in order to increase the appropriate level of representation. At present, equality legislation permits Genuine Occupational Requirements (GOR) when filling a vacancy to treat job applicants differently on grounds of a specific requirement, e.g. race, gender, sexual orientation etc.

They were also keen to see an SEA include a clear statement of purpose at the outset in order to make it clear what the purpose of the Act was. Their view was that too much equality legislation was written by lawyers without a clear view of what the legislation was intended to achieve.

In terms of enforcement, they favoured the previous employment record of a company being taken into account (in the same way a criminal’s past convictions can be taken into account at sentencing), ‘class actions’ (this is a civil action brought by one or more individuals on behalf of themselves and "all others similarly situated". The purpose of a class action is to secure a judicial remedy which not only eliminates a wrong committed against an individual, and compensates him or her for the effects of that wrong, but which also provides such remedies for all others in a definable class who have suffered as a result of the same practice or practices), six months to bring an Employment Tribunal action and comprehensive equalities monitoring being required of all public and private sector organisations.

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