4 Issue - May 2010
- Race Equality And The Coalition,
- The Equality Act 2010 -A Tuc Overview,
- UK Borders And Workplace Immigration Controls,
- Solidarity Is Our Strength
- TUC Dual Discrimination Seminar - October 2010
The Proof of the Pudding is in the eating
The recent General Election has been hailed as a historic political night for Black Britain with the election of a record breaking numbers of black candidates being elected to Parliament. The numbers increased from 14 black MP's to 26 with 15 Labour and 11 Conservatives being elected to the House of Commons.
Whilst the increase in number is welcome we should be cautious about the idea that increasing black representation in the halls of power will automatically result in better representation in Parliament on the issues that affect the daily lives of black people, or that this will result in more attention being paid by the political elite to the personal and institutional racism that results in the impoverishment of our communities.
Progress cannot be measured in numbers, but also has to be measured by the political principles black MP's not only espouse but act
on. Unfortunately all too often in the past Black MP's have assured their black constituents that they are committed to fight against racism while voting for legislation that has resulted in the introduction of measures that result in even more oppression of our communities by the state.
The reality of the British political system is that it is based on patronage and the House of Commons is no different. The price demanded for those with the ambition to play a role in government is that they hitch their political allegiance to the shirt tails of a key political figure. Hence those entering parliament face a dilemma. Do they vote with the Government in the hope that by climbing the political ladder they can one day hold ministerial office and make a difference or speak up for those that are exploited and oppressed and risk being cast as a political outsider. Although this is not an easy dilemma to solve it is worth remembering that if you cast aside your ideals to get to the top you cannot stand on them later and the idea radical change can come about though individual influence rather than from collective action of those that are oppressed does not stand historical scrutiny.
So whilst we have had a record number of black MP's in Parliament we should remember that whilst this is a positive change it may not lead to a positive outcome unless we ensure that on matters of race we organise to pressure these MP's to act on behalf of the best interests of the black communities. As Angela Davis so succinctly put it 'when the inclusion of black people into the machine of oppression is designed to make that machine work more efficiently, then it does not represent progress at all'.
The test for these MP's will come almost immediately as all the mainstream political parties are arguing that in order for Britain to become lean and competitive, public debt must be cut and that public spending is out of control despite the fact that the deficit is as a result of bailing the banking sector out during the recent financial crisis.
In a statement to this year's Black Workers' Conference the TUC Race Relations Committee highlighted their belief that the threatened cuts across public services will have a heavy impact on working communities with a disproportionate impact on already impoverished black communities which rely on high-quality and accessible public services to look after their families. Specialist services provided by the black voluntary sector are already under threat and it is likely that Black Community Groups face extinction as a result of cuts to grant funding.
For black trade unionists and our families, public sector cuts means lost jobs, depleted services, devastation of the black voluntary sector, fewer rights and a new era of hardship.
Trade unionists and community activists will need to unite and organise to motivate the black community to resist these cuts and defend the public services that our communities are so reliant on to alleviate the effects of the economic recession that we are now experiencing.
As for those new MP's the proof of the pudding will be if they stand up with us to defend public services or instead abandon our interests in favour of seeking patronage from the parliamentary political machine.
Race Equality and the Coalition
Before the election the Conservative Party published an equality manifesto and the Liberal Democrats published a specific policy document on race equality. Neither document made many commitments on dealing with race discrimination in employment other than the Liberal Democrats who stated employers would not be able to include questions intended to reveal the gender, age or race of an applicant and that every company that employs more than 100 people would have its pay arrangements examined with an Equal Pay Audit.
As a prelude to the Queens' speech the new Conservative/Liberal Democrat coalition has published a 'Programme for Government'. This document details the new coalition government's new policy on race equality, immigration and asylum and civil liberties.
Race Equalities Proposals - Employment
The programme only specifically refers to black workers in one paragraph and this is in the equalities section. The programme states:
'We will promote improved community relations and opportunities for black Asian and Minority Ethnic (BAME) communities, including by providing internships' for under-represented minorities in every Whitehall department and funding targeted national enterprise mentoring schemes for BAME people who wants to start a business.'
Whilst the announcement of providing targeted internship opportunities for young black workers in line with calls that the Race Relations Committee made to the previous Government there is cause for concern in that:
- The proposal is targeted at the Civil service where there Government has just announced major cuts.
- There is no indication that any of these internships would be paid and would not be covering the work of those that have been made redundant.
- There is no indication that these internships could lead to permanent employment.
The second part of the policy focuses on funding targeted national enterprise mentoring schemes. Such schemes already exist with Government attempting to provide a national coordination service through Business Link the Department for Business Innovation and Skills website. There are no proposals to tackle the systemic problem of access to capital that is faced by black business or any distinction between promoting business that provide real jobs or result in people livening on a subsistence income.
There are no policies that directly address the problems of black workers getting access to the labour market or to the experience of discrimination that they face in employment. Indeed the proposals to outsource welfare to work programmes to the private sector and link funding to results is likely to result in especially young black workers being forced into low paid jobs.
Immigration and Asylum
The programme states very little about immigration other than to reiterate the government's intention to place an annual limit on non EU migrant workers admitted into the UK to live and work. No details on how this will be achieved have been provided in the programme or indicated in any other statement that has been made. This is likely to have a contradictory effect on the current points based system.
The programme also mentions introducing more measure to minimise the abuse of the immigration system and identifies students as a potential areas. The current penalties regime has already resulted in the introduction of internal borders in the workplace and education system. Added regulations are likely to make the situation for a wider range of migrants even more oppressive.
On asylum the programme refer finding new ways to improve speed up the current processing of asylum application. However it makes no reference to the Government's intentions on the deportation of failed asylum seekers.
There are two areas of action in the programme on civil liberties that have an impact on black communities.
The first is the proposal to scrap the ID card scheme and the National Identity Register. This TUC has consistently campaigned against the introduction of the scheme and the register and argued that the scheme would have a disproportionate impact on black communities especially in relation to such issues as stop and search. Whilst the TUC welcomes the scrapping of the schemes it remains to be seen whether this will apply to non-EU immigrants and migrants to the UK given that ID Cards have already been implemented for these groups.
The second area is the commitment to adopt the Scottish Model for the keeping of DNA. Currently nearly 40% of black men many of them young people and 13% of Asian men compared 9% of white men are represented on the National DNA Database. This is despite the decision of S and Marper -V- United Kingdom where the European Court of Human Rights found that holding DNA samples of individuals arrested but who are later acquitted or have the charges against them dropped is a violation of the right to privacy under the European Convention on Human Rights. The introduction of the Scottish system would be welcome and is likely to significantly reduce the number of black people on the database. However there would be a need to continue to press for a system that removes DNA from the system of people who have been charged and not convicted and for a system proportionate to the crime so that people who have committed minor offences do not have their DNA| retained for life.
Whilst there are some measures in the proposals on civil liberties that have the potential to improve things for the black community there is nothing that could be described as having the potential to make major improvements on the position of black workers in the labour market. Areas such as the extension of the law to promote race equality and against race discrimination and the use of procurement to improve race equality practice in the private sector are not part of the government's policy agenda and unlikely to be so.
The challenge for the black communities will be to hang onto the current level of public duties in the regulations that may be put forward by the government when implementing the new Single Equality Act. The recent announcement of £1.7million cuts in local government spending, £320million cuts in employment programmes including the Young Person Guarantee and Future Jobs Fund and the £120million pound from recruitment freezes across the civil service has the potential to have a devastating impact on black communities where over 42% work in black communities and unemployment among young black men is running at nearly 50%. The challenge for black trade unionists will be how to effectively organise in the workplace and in the community to resist the devastation that threatens our communities.
The Equality Act 2010 - A TUC Overview
Equality Act 2010
- Received Royal Assent on 8 April 2010
- 218 clauses and 28 schedules
Main purpose of the Act:
- To harmonise the existing discrimination law to create a single approach (consolidating 9 pieces of legislation) and;
- To strengthen the law to support progress on equality
The Act provides protection from 'prohibited conduct' which includes:
- direct discrimination (including combination discrimination)
- indirect discrimination;
- harassment and;
Because of a characteristic which is protected. The 'protected characteristics' covered by the Act are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
N:B The extent of protection available under the Act is not uniform but depends upon the nature of the 'prohibited conduct' and the relevant protected characteristic, e.g. there is no protection against harassment which may arise out of the provision of services (or in the exercise of public functions) because of religion or belief and sexual orientation.
How does the Act strengthen the law?
The Act 'levels up' by removing some unjustified anomalies in the existing law, for example by:
- extending protectionfrom discrimination to people who:
- associate with others who have a protected characteristic
- are perceived to have a protected characteristic
- permitting a discrimination claim to be pursued because of a combination of two protected characteristics (s14)
- extending protection from discrimination 'arising from disability'(s15)
- extending indirect discrimination to disability and gender reassignment
- retaining specific provisions in some areas where different approach considered justified e.g. duty to make reasonable adjustments
How does the Act affect Employment?
- Allows employers, service providers or organisations to take positive action as a means of overcoming or minimising disadvantage arising from a protected characteristic (s158)
- Employer can appoint someone because they have a protected characteristic if they are 'as qualified as' rival candidate
- However, employers may not operate a general policy of treating persons with particular protected characteristics more favourably
- Includes powers to require private sector employers, from 2013, to report on the gender pay gap (s78) whilst rendering pay 'gagging' clauses in employees' contracts, unenforceable (s77)
- Restricts an employer's ability to ask pre-employment disability and health questions of job applicants (s60)
How does the Act affect Public bodies?
- Sets out a 'general duty' on public bodies when exercising public functions, to have due regard to the need to: (s149)
- Eliminateconduct which is prohibited under the Act;
- Advance equality of opportunity between people who share a protected characteristic and those who do not;
- Foster good relationsbetween people who share a protected characteristic and those who do not
- Extends the existing race, gender and disability duties to cover all main protected characteristics (s.149(7)) N:B not marriage and civil partnership
- Creates a new duty for public bodies to consider socio-economic disadvantage when taking strategic decisions about how to exercise its functions (s.1)
- Includes enabling powers to introduce specific equality duties including duties relating to public sector procurement (s.155)
What else does the Act do?
- Prohibits pregnancy/maternity discrimination in schools (pupils)
- Makes terms in contracts, collective agreements or rules unenforceable or void if they result in discrimination
- Includes provision for Ministers to add 'caste' as an aspect of race S.9(5) and (6)
- Extends permission for political parties to use women-only shortlists for election candidates to 2030
- Requires political parties to publish information on diversity of candidates
- Removes the prohibition on registering civil partnerships in religious premises
- Removes the discriminatory provisions from family property law
Not in the Act
- In the main, the Act replicates the provisions of the Equal Pay Act 1970 - a very complex, time consuming and costly regime for dealing with men's and women's pay inequality. The TUC is disappointed that the Government did not seize the opportunity, when drafting the Act, to overhaul the Equal Pay Act 1970.
- Gender pay - the Act does not oblige employers to carry out mandatory equal pay audits and there is no provision as would allow a woman to rely upon hypothetical comparators when pursuing an equal pay claim. A woman must be able to point to an actual comparator notwithstanding that the type of work she is employed to do attracts mainly women.
- No statutory rights for TU Equality Reps
- No provision for Unions to pursue representative actions on behalf of categories of workers
- GEO proposals for what should be included in the specific duties Regulations are regressive
When will the Act be fully implemented? Government's proposed timetable:
- October 2010: Main provisions of the Act, including Part 5 - Work.
- April 2011:
- PSED and specific duties Regulations
- Combined discrimination
- Socio-economic duty
- 2012 : extension of age discrimination to services and public functions
- 2013 : Private sector gender pay reporting (at the earliest)
Implications for implementation of the new government
Same timeframe as stated above, save that the following provisions would not be brought into effect: -
- 'tie-break' aspects of positive action provisions
- private sector gender pay reporting
- socio-economic duty
UK Borders and Workplace Immigration Controls
The issue of who and how people come to the UK has ceased to be an issue that just affects those working at ports and airports. The ever increasing change and scope of immigration legislations and regulations means that the enforcement of laws about migrant workers are intruding into the workplace and having an impact on the jobs of workers.
The consequence of the Government's managed migration policies has been to divide migrants into two categories. 'Good migrants' who are useful and make money for Britain economy and 'bad migrants' who people who are not seen as wealth creators and regarded as illegal's.
The introduction of the points based system which is aimed at controlling migrant workers from outside the EU (mainly black workers) has institutionalised this approach and meant that overseas workers who have invested money time and emotional separation from their families to legitimately take up jobs in social care or in the hospitality industries have now found themselves deemed as unwanted and hence illegal if they stay.
The introduction of a civil penalties regime which operates on the basis in order to avoid fines employers need to ensure that they are not employing undocumented workers has moved the UK's borders from the point of entry into the UK and into our workplaces. This has been reinforced by an increasing number of workplace raids by the UK Border Agency which has reinforced the idea that we all need to be checking on migrant workers to make sure that they are not illegal and are causing division racism and fear in our workplaces.
The TUC has recognised that there is a need to for the trade union movement to take steps to ensure that employers do not use these regulations to divide and role workers and exploit those that are most vulnerable. However to do this we need to recognise that all workers have rights and that the only way to respond to such challenges is through a collective response.
The TUC has worked with the Migrants Right Network an organisation which is working to get migrants concerns heard among policy makers and been supported by the GMB, Unite and Unison to produce a negotiators guide. The guide is aimed at helping activists to deal with immigration document checks and workplace raids through negotiating and collective bargaining.
As the TUC General Secretary Brendan Barber makes clear the challengers resulting from the changes to the regulation of migrants in the workplace can only be met if the trade union movement is proactive in negotiating with employers to ensure that only necessary document checks are made and that these a carried out fairly. As trade unionist we have a responsibility to represent all members whatever their status and ensure that their rights are enforced.
The TUC and Migrants Rights Network will be organising roundtables in TUC regions in July as part of a strategy to publicise and disseminate the negotiators guide, and to raise awareness about the benefits of collective bargaining. As well as publicising the guide the roundtables will gather information about the ways that immigration document checks and workplace raids are emerging as an issue in the regions. This information will be captured for a follow-up report on the impacts of employer sanctions. The roundtables will be open to trade union organisers and equalities reps to, as well as wider concerned parties including community based organisations, activists and welfare advisors.
Copies of the negotiating guide can be obtained from the TUC publication Department by contacting Steve Mills at [email protected].
Solidarity is our strength
Over the last few months race equality has appeared back on the political agenda with politicians arguing that it is social economic status i.e. class rather than race that most affects peoples life chances. For trade unionists the fact that race and class are related is nothing new and counter posing them as if they are separate is misleading. After all if you cannot get access to a job, get promotion or are confined to low paid jobs in the labour market because of the colour of your skin then your social economic status is bound to be poor. This is why tackling institutional racism is so important and dealing with racism in the workplace so vital.
The TUC has recently published a new negotiators guide on tackling racism in the workplace which gives reps and activists some practical advice on how to take forward issues of racism on a collective basis.
However, negotiators' guides in themselves are not enough and there is a need for trade unionists to rediscover why a collective approach to dealing with racism in the workplace is needed.
All too often racism is seen as an individual and legal problem that is only to be dealt with when a member complains that they have been discriminated against. As a result the issue of racism has been externalised from the workplace and the debate about how to deal with race discrimination has become centred on whether unions should apply a 50% plus success criteria when deciding whether to take cases to the employment tribunal. That Is not to say there is not a debate to be had and action to be taken to address the level and competence of individual representation when it comes to unions handling racism cases, however this cannot represent the be all and end all of a trade union strategy for dealing with racism at work.
The Employment Tribunals Annual Report for 2008/9 showed that of 3970 race discrimination cases submitted to the tribunal only 1074 reach employment tribunal stage, of these 694 were struck out, 236 lost at hearing and only 129 were successful at hearing. This amounts to a 3% success rate for race discrimination claims which is the success rate for all discrimination claims on an annual basis. If our strategy for tackling race discrimination in the workplace rests solely on employment law then I believe that it is strategy that is not only bound to fail as the figures indicate, but shows a real lack of ambition as it only seeks to sort out the problems after they have happened, obtain justice after injustice has taken place and obtain compensation for the hurt that has already been inflicted.
There is a need to rediscover the ambition that led black workers to organise in trade unions and that was to stop race discrimination happening in the first place and to redress the historic imbalance and disadvantage that black workers suffer in the labour market. This can only be done by developing an understanding that race discrimination in the workplace is a collective issue for everybody not just the individual that may have suffered. It is about involving all members in the fight for fairness at work and a just working environment. This can only happen if there is open and collective discussion in the workplace and the union about the measures and actions that members need take collectively to fight racism, so that pressure can be put on management to address the issues and make systemic and institutional changes in the workplace. Only then can we say we are tackling racism in the workplace rather than dealing with its casualties. Solidarity is our strength, now more than ever is the time to use it.
Copies of the negotiating guide can be obtained from the TUC publication Department by contacting Steve Mills at [email protected].
TUC Dual Discrimination Seminar - October 2010
Issues of intersectionality and multiple-discrimination have become prominent, both in terms of equality legislation and within the work of trade unions in recent years. The inclusion of a new combined discrimination provision on the grounds of sex and race within the Equality Act 210 will increase the need for trade unions to think further about their work on these matters.
The TUC will be holding a half day seminar on Friday 22 October 2010. Jill Brown a prominent barrister and part time employment tribunal judge will speak on the implications of the new dual discrimination provisions and a panel of trade unionists will discuss the implications of the new provision union action in the workplace. The seminar will provide the opportunity for trade unionists who work on equality to devise strategies for dealing with joint issues that affect workers who experience discrimination on more than one ground and will build on existing strands of work. Details of the seminar will be published on the TUC website at http://www.tuc.org.uk/equality/index.cfm as they become available.
Issued: 12 May, 2010