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Title: Diversity

Diversity From Why To HowWorkshop 2
  • Ewan Keen - DLA

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

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

Managing Change
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?

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

The Audit Part 1
  • Policies and procedures
  • Company image
  • Training programmes
  • Integration into business
  • Line managers knowledge

The Audit Part 2
  • Effectiveness of communication
  • Testing the climate
  • Workforce/client profile
  • Monitoring mechanisms
  • Benchmarking against best practice

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

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

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

  • 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

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

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

Training The Process - Part 2
  • Pilot before roll-out
  • Validate the learning short and long term
  • Incorporate into induction
  • Incorporate into core skills set

  • 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

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"

Accommodating Religious Practices
  • DLA

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

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

Top 5 London East Area
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

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

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

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

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

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

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

  • 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

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

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

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

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".

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.

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.

Implementing A Diversity Model
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

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

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

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

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

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

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

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

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

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

Types Of Harassment
  • Disability
  • Age
  • Union membership
  • Employment status

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

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

Verbal Written contd.
  • Gossip
  • Offensive letters
  • E-mails
  • Text messages
  • Songs

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

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

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

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

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

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

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

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!

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

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

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

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!!!

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

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

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
  • Accusing a Muslim of telling 'porky pies'
  • Saying to a black person "You're about as much
    use as a chocolate teapot"

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"

How Would You Deal With This?
  • DLA

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?

Act 2 - Issues
  • Can John present a claim?
  • Victimisation
  • Post-employment discrimination

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

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?

Code Of Behaviour
  • DLA

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

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

Amending Disability Legislation
  • DLA

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

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

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

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

Age Legislation Proposals
  • DLA

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

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
  • Must be able to show that the discriminatory
    treatment was a proportionate means of achieving
    a legitimate aim

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
  • 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

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
  • Purely examples - each case assessed on its own
  • Employer will need to show
  • why that treatment was necessary
  • that it was in proportion to the business need
  • business benefits outweighed discriminatory

  • 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

  • Harassment will occur where a person
  • is subjected to unwanted conduct on grounds of
  • 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

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

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

Categories Of Worker Protected
  • Contract workers
  • in the terms on which workers are allowed do that
  • not allowing workers to do work or continue to do
  • 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

Exceptions For Retirement
  • Compulsory retirement will constitute direct age
  • 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

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
  • 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

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

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

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

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
  • 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

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

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
  • The Equal Treatment Directive allows for
    seniority in service for access to certain
    employment advantages to constitute justified
  • EEA Regs contain a general provision exception
    and four specific exemptions on pay and
    employment benefits

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

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

Exceptions To Unlawful Acts
  • Statutory authority to comply with a statutory
  • 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

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
  • the person to whom the requirement is applied
    does not meet it

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
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