Diversity

1
Diversity From Why To HowWorkshop 2

• Ewan Keen - DLA

2
Objectives

• Steps needed to create a diverse workforce
• Create environment accommodating difference
• Maintain a culture of mutual respect
• Assess impending law impacting on diversity

3
Warning About Content

• Aim is to reflect reality
• Workshop contains hard-hitting examples
• 'Colourful' language
• Parts of the body described graphically
• All examples are real they've happened
• No intention to offend anyone present

4
Managing Change
5
Developing A Strategy

• Why develop a strategy?
• Core process
• Where are we now?
• Where do we want to be?
• How do we get there? the plan
• How do we know when we have arrived?

6
Core Components Of A Strategy

• An audit
• Establishing a business case
• Setting out the strategy
• Policy review and development
• Communication and training
• Monitoring and maintenance

7
The Audit Part 1

• Policies and procedures
• Company image
• Training programmes
• Integration into business
• Line managers knowledge

8
The Audit Part 2

• Effectiveness of communication
• Testing the climate
• Workforce/client profile
• Monitoring mechanisms
• Benchmarking against best practice

9
Business Case

• Establishing the case
• Reputation/Perception
• Relationships with People
• Results/Performance
• Leadership and ownership
• Integrating into mainstream business

10
Developing A Strategy

• Mission
• Objectives to be achieved
• Critical success factors
• Action plan
• Key HR/business impact areas
• Core areas - tasks, deliverables, timescales

11
Policy Development

• Purpose, principles and procedures
• Communication
• Policies required audit driven
• Minimum policy framework for diversity
• Beyond employees

12
Communication

• Communication is critical
• Explain the business case
• Values and vision
• What's in it for me?
• Definition of diversity explain the process
• Maintain open communications

13
Training Core Principles

• Your values
• Your policies
• Your procedures
• Understanding and complying with the law
• Acceptable behaviour respect for people
• Why diversity is important to the organisation

14
Training The Process - Part 1

• Critical in achieving understanding
• Based on training needs analysis
• Types of programme required by population
• Clear aim and learning objectives
• Business based

15
Training The Process - Part 2

• Pilot before roll-out
• Validate the learning short and long term
• Incorporate into induction
• Incorporate into core skills set

16
Monitoring

• You need to measure to manage
• Statistical data
• Diversity audit staff attitude surveys
• Customer satisfaction surveys
• Act on the results don't sit on them
• Communication of progress

17
Key Points

• Diversity is a continuous process
• It takes time to achieve results
• You will make mistakes learn - don't blame
• Make diversity a core part of the business
• "Walk the talk"

18
Accommodating Religious Practices

• DLA

19
Proof Of Religion Or Belief

• No requirement for proof of religion
• Potential for exploitation
• Core or sect beliefs?
• Refer to definition in the RB Regs
• Use guidance from court judgments to date

20
Cultural Awareness

• Analyse the workforce
• Analyse your work catchment area
• Internet 2001 Census figures
• Religion and ethnic breakdown

21
Top 5 London East Area
22
Reasonable Accommodation

• Problems stem from lack of knowledge
• Awareness of culture and practices needed
• Reasonable accommodation is the key
• Indirect discrimination is a danger
• Accommodation - where to the draw the line
• Objective justification proportionate to need

23
Key Accommodation Issues

• Dress codes
• Religious observance
• Religious leave
• Recruitment and job applications
• Social interaction, e.g. events

24
Dress Cultural Issues

• Khalsa Sikhs - the 5 K's
• Islam - Qur'an - code of modesty
• Hindu - the Tilaka - vermilion
• Rastafarians - "dreadlocks" - Lion of Judah

25
Dress - Accommodation

• Modified clothing/equipment
• Adapting dress codes
• Providing beard bags or snoods
• Specially designed corporate outfits saris
• Conflict with HS requirements adaptation?

26
Religious Observance

• Muslims - Salat - prayer ritual
• Congregational Salat on Fridays
• Jewish Sabbath no work
• Hindu - bereavement - 13 day mourning period
• Muslim - bereavement - burial ASAP

27
Observance Accommodation

• Adjusting working hours
• Work lunch time leave early
• Allowing time off to be made up
• Swapping of hours
• Providing a prayer or quiet room
• Adjusting bereavement policies

28
Religious Leave

• Numerous religious holidays, e.g. Eid Islam
• Use part of annual leave
• Swap days off or make time up
• Work public holidays
• Clear procedures discuss each year
• Flexibility and compromise is the key

29
Recruitment

• Do not make enquiries as to
• religious affiliation, worship or customs
• Be flexible over interview dates/times
• Some may not shake hands
• Some may not make eye contact
• Dress may be different to expectations

30
Social Interaction - Issues

• Muslims regard pork as unholy .
• Muslims other meat must be 'Halal'
• Ramadan - abstain between dawn and sunset
• Jews - pork - unclean under Mosaic Law
• Hinduism - the cow sacred - do not eat beef
• Muslims and Sikhs - no alcohol

31
Social - Accommodation

• Asking about dietary requirements
• Arranging for kosher or Halal food
• Food packs for Muslims during Ramadan
• Considering no alcohol at events
• Non- alcohol kept away from alcohol

32
Social Interaction Other Issues

• Modesty lowering the gaze
• Being alone with the opposite sex
• Private sanitary/changing facilities
• The caste system
•  

33
What Would You Do?

• A devout Catholic works in a shop opposite an
  abortion clinic. She tells her manager she has
  taken a special vow to protect the unborn foetus.
  She wants to wear a badge at work which has a
  picture of a foetus with the words "Protect the
  unborn at all costs". The shop's dress code
  states "The only badge that may be worn is the
  employee's name badge".

34
What Would You Do?

• A training course consists entirely of team
  tasks that sometimes involve physical contact
  between males and females. The new course is a
  compulsory part of junior management assessment
  to test 'leadership' skills. Without 'passing'
  this course there is no path to senior
  management. A successful female Muslim manager
  states that she cannot attend as her religion
  does not permit such physical contact.

35
What Would You Do?

• An employer provides all employees with an
  entitlement to a day's paid holiday on each of
  the nationally recognised public holidays, which
  includes Christmas Day. If non-Christian
  employees want time off for a religious festival,
  they can take time out of their additional annual
  holiday entitlement. A Muslim raises a grievance
  on the basis that it is unfair that Christian
  employees can observe their religious festivals
  without having to use their holiday entitlement.

36
Implementing A Diversity Model
37
Diversity Model

• Culture of inclusion difference welcomed
• Valuing positive benefits of individuality
• Mutual respect
• Eradicating discrimination
• Work life balance provided for
• Including employees in decision making

38
Making It Happen

• Top level commitment - walk the talk
• Communicate values
• Install a code of conduct
• Range of relevant policies in place
• Zero tolerance to discrimination

39
Making It Happen

• Try to accommodate unique needs
• Train regularly
• Evaluate performance against diversity model
• Make diversity a performance measure
• Weave diversity throughout the organisation

40
Harassment
41
Harassment Most Cases

• SDA, RRA, DDA, SO / RB Regs have definition
• Unwanted conduct
• Purpose or effect
• Violating dignity
• Hostile, intimidating, humiliating environment
• Reasonableness test where no intent

42
Other Definitions

• Rejection of or submission to harassment
• Sex-based harassment
• unwelcome conduct purely related to the sex of
  the victim
• Sexual harassment
• unwanted conduct which is sexual in nature, i.e.
  verbal, non-verbal or physical conduct of sexual
  nature

43
Married, Civil Partners Colour Nationality

• No definition of harassment in SDA or RRA
• Nevertheless, regarded as direct discrimination
• Less favourable treatment
• Resulting in a 'detriment'
• 'Detriment' means placed at a disadvantage
• Detriment includes injury to feelings

44
Harassment Direct Discrimination

• Case law definition
• Unwanted and unwelcome conduct
• Resulting in
• Intimidating, hostile or humiliating environment
• Detriment could be failure to appoint
• Detriment could also be offensive remark

45
Further Guidance All Cases

• Has to be imposed "didn't want it or ask for
  it"
• One incident is enough
• Individual test applies
• But 'reasonable' person test in some cases
• Silence is not acceptance

46
A New Challenge

• Death of common courtesy?
• Political correctness
• Multi-cultural society
• Changing roles
• Litigious society
• Risk management

47
Types Of Harassment

• Sex
• Sexual orientation
• Marital or family status
• Gender reassignment
• Race, colour, nationality, ethnic/national origin
• Religion or belief

48
Types Of Harassment

• Disability
• Age
• Union membership
• Employment status

49
Types Of Harassment

• Criminal record
• Health
• Physical characteristics
• Anyone perceived as different at risk

50
Verbal Written Forms

• Crude language
• Offensive jokes
• Suggestive remarks
• Innuendoes - double meaning
• Lewd comments
• Wolf-whistles

51
Verbal Written contd.

• Gossip
• Offensive letters
• E-mails
• Text messages
• Songs

52
Physical Contact

• Touching
• Patting
• Pinching
• Brushing against body
• Assault
• Physical coercion

53
Display

• Sexually explicit posters/calendars
• Racial posters
• Pornographic material
• Obscene gestures
• Graffiti
• Offensive objects

54
Coercion Intrusion

• Pressure for sexual favours
• Pressure to join groups, e.g. political,
  religious
• Following
• Pestering
• Spying
• Anonymous phone calls
• Voice mails

55
Electronic/mobile communications

• Email,texting,digital photos used to harass
• All capable of being unlawful
• Dangers of remote 'messaging'
• Easy to send to unwanted recipients
• Managers role in monitoring communications
• Downloading and distributing pornography

56
Examples From Cases

• Insitu Cleaning Co Ltd v Heads
• Bull Information Systems Ltd v Stedman
• Woare v Wincanton Ltd
• HM Prison Service v Salmon
• Thomas and anor v Robinson
• Doshoki v Draeger Ltd

57
Examples From Cases

• Derby Specialist Fabrication Ltd v Burton
• Smith v Gardner Merchant Ltd
• Cox v Rentokil
• Noor v Telewest Communications
• Kent Police v Kufeji
• Chessington World Of Adventures Ltd v Reed

58
Why Do People Harass?

• Its just banter
• A laugh and a joke
• Rightful treatment to be meted out
• Intrinsic set of sexist/racist values
• Pressure from others
• Dont want to be seen as different

59
One person's banter ..

• Banter is the most common excuse
• Can mean jesting, joking or kidding
• Can also mean ridiculing, taunting, mocking
• One person's banter may be another's ridicule
• Brain should be in gear with your mouth
• If likely to offend don't say it!

60
Policy Procedures

• Must be followed to the letter
• Prevention rather than cure
• Examples of unacceptable behaviour
• Disciplinary offence if committed
• Methods of resolving problems
• Allegations treated seriously
• Malicious complaints not tolerated

61
Line managers role

• Policy observed at all times
• Ensure workplace is harassment-free
• Alert to staff reluctance to take action
• Intervene if unacceptable behaviour observed
• Ensure no offensive material is displayed
• Treat complaints seriously
• Investigate complaints promptly

62
Advice The principles

• Providing advice is key part of any policy
• Provides independent and objective help
• All managers have duty to advise
• Must be treated seriously
• Set the scene - purpose, role and confidentiality
• Remain neutral - listen carefully
• Ask open-ended questions

63
Advice the practice

• Help individual consider situation objectively
• Draw attention to solutions
• Help weigh up the alternatives
• Help develop an action plan
• Assist where possible
• Arrange a follow-up meeting
• Make a record!!!

64
Solutions

• Decision rests with individual
• Informal approach personal
• Informal approach accompanied
• Informal approach in writing
• Formal complaint in writing
• Independent investigation
• False claims not tolerated

65
Group Discussion

• What type of behaviour do you think
• is acceptable in today's workplace?

66
What Do You Think?

• Jesus Christ, in God's name, what a balls up!
• You don't fit in - black sheep of the family
• Telling a gay "Just going out to light up a
  fag"
• Accusing a Muslim of telling 'porky pies'
• Saying to a black person "You're about as much
  use as a chocolate teapot"

67
What Do You Think?

• Saying to a devout Christian "You really are the
  devil in disguise"
• Saying to a Hindu woman "I bet when you were
  growing up you were right little cow"
• "She displays the usual traits associated with
  women who are undergoing the change of life. You
  have to be so careful with them, otherwise they
  are off to tribunal"

68
How Would You Deal With This?

• DLA

69
Act 1 - Issues

• Definition of sexual orientation
• Definition of a transsexual
• Definition of a transvestite
• Who does the law protect?
• Where does Danny fit in?
• Can Danny make a claim?

70
Act 2 - Issues

• Can John present a claim?
• Victimisation
• Post-employment discrimination

71
Act 3 - Issues

• Jane's sex discrimination claim
• Jane's sexual orientation discrimination claim
• Jane citing Nitin in the discrimination claims
• Nitin's religious discrimination claim
• Nitin's human rights claim

72
Act 4 - Issues

• Can Billy Jones present a claim?
• Can Robert Smith present a claim?
• Can Mary Wells present a claim?
• Can Sarah justify not offering Matthew the job?

73
Code Of Behaviour

• DLA

74
Code Of Behaviour

• Understand we are all different
• Welcome difference - it's a benefit not a threat
• Understand beliefs and traditions of others
• Respect the convictions of others
• Avoid imposing ourselves and own views
• Don't tolerate illegal or immoral acts/views

75
Code Of Behaviour

• Recognise we all 'fall short' of ideals at times
• Work to prevent disagreement/conflict
• Don't belittle/misrepresent other's beliefs
• Correct misunderstandings
• Eliminate prejudice from our minds at work
• Respect different views on work/life balance

76
Amending Disability Legislation

• DLA

77
Amending Legislation

• Two new pieces of legislation
• Came into force on 1 October 2004
• Disability Amendments Regulations
• Pension Regulations
• Both stem from EU Directive

78
Disability Amendments Regs

• Ending most existing exclusions
• Direct discrimination and justification
• Harassment specifically included
• Indirect discrimination
• Extending list or reasonable adjustments
• Extending the meaning of dismissal

79
Disability Amendments Regs

• Instructions and pressure to discriminate
• Post-employment discrimination
• Discriminatory advertisements
• Response to questionnaire 8 weeks
• Burden of proof

80
Pension Regs

• Insert a non-discrimination rule
• Trustees/managers of pension schemes
• Must not discriminate or harass
• Members or prospective members
• Imposes duty to make reasonable adjustments

81
Age Legislation Proposals

• DLA

82
Five Unlawful Acts

• Five different types of act will be unlawful
• Direct discrimination
• Indirect discrimination
• Victimisation
• Harassment
• An instruction to discriminate

83
Direct Discrimination

• Direct discrimination will occur
• where a person is treated less favourably on
  grounds of his or her age or apparent age
• than another person was treated, or would have
  been treated, in like-for-like circumstances
• Apparent age means assumed or perceived age,
  even if the assumption or perception is wrong
• An employer can seek to justify direct
  discrimination
• Must be able to show that the discriminatory
  treatment was a proportionate means of achieving
  a legitimate aim

84
Indirect Discrimination

• Indirect discrimination will occur
• where an employer applies a provision, criterion
  or practice to everyone,
• which puts, or would put, people in A's
  particular 'age group' at a particular
  disadvantage,
• when compared to other people who are not in A's
  particular 'age group,
• and which the employer cannot show to be a
  proportionate means of achieving a legitimate aim
• Age group means a group defined by a particular
  age or range of ages

85
Examples Of Justification

• Regs set out examples of treatment which may be a
  proportionate means of achieving a legitimate aim
• Example the fixing of a minimum age to qualify
  for certain advantages linked to employment or
  occupation in order to recruit or retain older
  people
• Purely examples - each case assessed on its own
  merits
• Employer will need to show
• why that treatment was necessary
• that it was in proportion to the business need
• business benefits outweighed discriminatory
  effect

86
Victimisation

• Victimisation occurs where a person is treated
  less favourably because of a protected act i.e.
• has alleged that discrimination has taken place
• has presented a claim to an employment tribunal
• has acted as a witness in a discrimination case
• The difference in treatment is by comparison with
  another person, actual or hypothetical, who has
  not committed a protected act

87
Harassment

• Harassment will occur where a person
• is subjected to unwanted conduct on grounds of
  age
• which has the purpose or effect
• of violating that persons dignity
• or creating an intimidating, hostile, degrading,
  humiliating or offensive working environment
• Where no intent to offend is established,
  harassment will only have occurred if that would
  be a reasonable conclusion to make in all the
  circumstances particularly taking into account
  the perception of the claimant

88
Instructions To Discriminate

• It will be unlawful for an employer to
  discriminate against an individual by treating
  him or her less favourably because
• the individual has not carried out an instruction
  to discriminate, or
• having been given an instruction to commit an
  unlawful act of age discrimination, that
  individual raises a complaint about it to the
  employer or someone else

89
Categories Of Worker Protected

• Applicants for employment (excluding age 65 and
  over)
• in determining who gets offered employment
• in the terms that are offered
• by refusing, or deliberately omitting, to offer
  employment
• harassment
• Employment
• in the terms on which they are employed
• opportunities for promotion, transfer, training,
  benefits
• dismissal or subjecting to any other detriment
• harassment

90
Categories Of Worker Protected

• Contract workers
• in the terms on which workers are allowed do that
  work
• not allowing workers to do work or continue to do
  work
• access to benefits, facilities and services
• by subjecting workers to any other detriment
• harassment
• Post-working relationship
• by subjecting a person to a detriment, or
  harassment, after the working relationship has
  come to an end, where the discrimination or
  harassment arises out of and is closely connected
  to that working relationship
• e.g. an act of retaliation by not providing a
  reference

91
Exceptions For Retirement

• Compulsory retirement will constitute direct age
  discrimination
• Equal Treatment Directive allows age
  discrimination if it can be objectively justified
  
• This enables the Government to set a national
  default retirement age
• Under national default provisions, it will not be
  unlawful to dismiss an employee at or over the
  age of 65 where the reason is retirement
• A national default retirement age is not an
  obligatory retirement age. It allows employers to
  set a retirement age at or above the level of the
  national default retirement age if they want to
• If employers want a retirement date below the
  national default retirement age, then this is
  possible if there is objective justification
• In 2011, the Government intends to review the
  default retirement age

92
Impact On Unfair Dismissal

• As a retirement will constitute a dismissal, the
  rules on unfair dismissal will apply and amended
  to include retirement as a potentially fair
  reason to dismiss
• The amended legislation will distinguish between
  a planned and a non-planned retirement
  dismissal
• Where planned retirement is concerned, it will
  be assumed from the outset that the reason for
  dismissal was retirement unless the employee
  shows otherwise
• In non-planned retirement situations it will be
  presumed that the reason for dismissal was not
  retirement unless the employer shows that
  retirement was in fact the real reason
• The 3 step statutory dismissal procedure will not
  apply to genuine retirement dismissals

93
Planned Retirement Dismissal

• A planned retirement dismissal will normally be
  regarded as fair if
• it is genuinely on grounds of retirement and
• it is a planned retirement, i.e. (a) the
  dismissal takes place at or after the national
  default retirement age of 65, or a lower
  retirement age which has been set and objectively
  justified by the employer (b) the employer has
  informed the employee of the planned retirement
  date at least six months in advance and,
• the employer has complied with the statutory duty
  to consider a request made by the employee to
  work beyond the planned retirement date

94
Planned Retirement Dismissal

• Notification an employer who intends to dismiss
  an employee due to retirement must notify the
  employee in writing, not more than one year and
  not less than six months before dismissal, of
• the employee's right to request that the employer
  consider allowing him or her to work beyond
  retirement and
• the date on which the employer intends the
  employee to retire
• If an employee does make a request, the employer
  will have to consider it seriously and follow the
  strict procedural guidelines and time limits set
  out in Schedule 7, otherwise a tribunal may award
  up to 8 weeks statutorily capped pay

95
Planned Retirement Dismissal

• Duty to consider procedure requires
• The employer to hold a meeting with the employee
  to discuss the request and notify in writing of
  the outcome within 14 days
• If the request is rejected, the employee must be
  allowed the right of appeal
• The appeal must be held within 14 days of the
  appeal being lodged
• The employee must be informed of the outcome in
  writing within 14 days of the appeal meeting
• In a case of a planned retirement dismissal, it
  will be presumed that the only reason is a
  retirement, unless the employee can show that
  retirement was not the real reason

96
Automatically Unfair Dismissal

• Even though an employer has been able to show
  that the dismissal was due to the retirement of
  the employee, a dismissal will nevertheless be
  automatically unfair if
• Prior to planning to retire the employee, the
  employer has not informed the employee of the
  right to request to continue working and of the
  intended retirement date, or the employee was
  informed less than 2 weeks before the retirement
  date
• The dismissal takes effect while a duty to
  consider procedure is still underway and the
  employer has not yet held the meeting with the
  employee or informed the employee of the decision
• Once a duty-to-consider procedure has started,
  the employer fails to comply with it properly

97
Non-planned Retirements

• If an employer contends that a dismissal is due
  to retirement, but
• the dismissal does not constitute a planned
  retirement and
• retirement is shown to be the only potentially
  fair reason for the dismissal
• The employer will have failed to show a fair
  reason for dismissal
• In non-planned retirement cases it will be
  presumed from the outset that a reason other than
  retirement was the real reason for dismissal
  unless the employer proves otherwise

98
Exception For Service Related Benefits

• Many existing pay and benefit schemes require a
  certain length of service before pay, or a
  benefit is given or increased
• This could amount to indirect age discrimination
  because some age groups are more likely to have
  completed the required length of service than
  others
• The Equal Treatment Directive allows for
  seniority in service for access to certain
  employment advantages to constitute justified
  discrimination
• EEA Regs contain a general provision exception
  and four specific exemptions on pay and
  employment benefits

99
General Exemption Provision

• General provision makes the use of length of
  service for all types of employment benefits
  lawful in respect of workers (applicants,
  employees and office holders) if
• it is reasonable for an employer to believe that
  there will be an advantage by rewarding the
  loyalty, encouraging the motivation or
  recognising the experience of workers by awarding
  benefits on the basis of length of service and
• the benefit is awarded to all of the employer's
  workers who meet the length of service criterion
  and whose circumstances are the same or hardly
  any different

100
Specific Exceptions

• Five year exemption length-of-service
  requirement of five years or less will be
  exempted as long as it is awarded to all of the
  employer's workers who meet the length of service
  criterion and whose circumstances are not
  otherwise materially different
• Statutory benefits exemption Where an employer
  provides a contractual benefit that mirrors a
  statutory benefit, it will not constitute age
  discrimination if the employer
• applies the same length-of-service criteria used
  in the statutory benefit
• applies a shorter length-of-service criteria than
  that used in the statutory benefit
• provides a more generous statutory benefit than
  that which would apply for a person meeting the
  statutory length-of-service criteria

101
Exceptions To Unlawful Acts

• Statutory authority to comply with a statutory
  provision
• National security for the purpose of
  safeguarding national security
• Work-related invalidity benefit schemes not
  unlawful to
• fix an age for admission to a work-related
  invalidity benefit scheme
• fix an age for entitlement to invalidity benefits
  under such a scheme
• use age criteria in actuarial calculations in
  benefit scheme
• National Minimum Wage it will not be unlawful
  for employers to pay
• employees aged 22 and over more than those under
  22 even where they are doing the same job, where
  those under 22 are paid less than the adult rate
  of 4.85
• employees aged between 18 and 21 more than those
  under 18 even where they are doing the same job,
  where those under 18 are paid less than the adult
  rate of 4.85

102
Genuine Occupational Requirements

• The GOR provisions will allow employers to
• directly or indirectly discriminate
• where they can show that having regard to the
  nature of the employment or the context in which
  it is carried out
• possessing a characteristic related to age
• is a genuine and determining occupational
  requirement and,
• it is proportionate to apply that requirement
  and,
• the person to whom the requirement is applied
  does not meet it

103
Positive Action

• Two forms of positive action
• Positive action training to help people fit a
  particular job
• Positive action encouragement to apply for jobs
• Permitted circumstances are where
• it reasonably appears to the employer
• that positive action prevents or compensates for
  disadvantages linked to age suffered by persons
  of that age or age group
• doing that work or likely to take up that work