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Thursday 13 April 2017

Follow Up Letter to the EHRC from Race Equality Organisations

David Isaac CBE
Equality and Human Rights Commission
Fleetbank House
2-6 Salisbury Square
London EC4Y 8JX

10 April 2017

Dear David

We would like to thank you and Rebecca Hilsenrath for meeting with us on 27 March and for listening to our concerns. We also appreciate that you are facing cuts to the Commission's budget and have difficult choices to make.

However, we remain concerned about the declining numbers of BAME staff and the recent redundancies at the EHRC. Since you did not offer any workable solutions for addressing our concerns, we would propose that the following steps be taken:

1. Reinstate the staff who have been made redundant.
2. Pause and review the restructure and redundancy selection process.
3. Appoint an independent external agency to oversee and monitor the restructuring. The agency should have proven expertise in equality.

Whilst we are willing to be partners in a wider race consultation group, we do not consider it practical or realistic for the Commission to use us for advice on your employment practices.

We repeat our advice that if your proposals have a disproportionate adverse impact on ethnic minority or disabled staff then you must revisit the process and interrogate it and, given the history, the decision-makers.

We would now like to address your concerns that we have been misled or misinformed and that we have misinterpreted the data.

Number of BAME staff made redundant.
We believe that the number of BAME staff who were made redundant is 9 and not 5 as stated in your letter. Based on the list of names which we have seen, the racial profile is as follows:
Asian: 4
Black Caribbean: 2
Mixed race: 1
Irish: 2

As three people have now accepted CILON, that leaves six ethnic minority staff who are asking to be reinstated.

We also noted from your replies to our questions that:

28% of BAME staff were successful at the ‘expression of interest’ stage compared with 61% of White staff.

16% of BAME staff, compared with 22% of white staff, were appointed into roles at the assessment stage

24% of our BAME staff applied for VE, and 8% accepted offers, compared to 17% of white staff applying, and 9% accepting offers.

From this data, we can only infer that the restructure process - possibly even the culture within the Commission - is racially discriminatory.  We consider your process was far from ‘fair, robust and transparent.’ Somewhere there is a barrier to the progress of BAME staff and closer scrutiny is needed of the process and the decision-makers. Hence, our very strong recommendation that you bring in an external agency to review the process

Employment support and counselling for those facing redundancy
Your letter said that all staff were offered appropriate guidance and mentoring.

We have been told that under the ‘Transition to Work’ programme, staff in Birmingham were directed to Brook St Bureau who offered them part-time jobs in warehouses and other manual/non-skilled jobs. One member of staff was offered a coaching session in Costa Coffee during the lunchtime rush.

We do not consider this was appropriate guidance and definitely not mentoring.

You said you did mitigate adverse impact and for one individual, a job was created. We now understand that was for a disabled member of staff and it was a reasonable adjustment that was made. It seems to us that there hasn’t been any mitigation of the adverse impact of the restructure process on BAME staff.

The referral to Brook St Bureau is further evidence of the lack of mitigation.

Senior BAME staff
We were concerned that the one BAME Director was made redundant. You have informed us the recently appointed Finance Director is from a BAME background. So there is now (still) only one person from a BAME background amongst your directors.

The equality objectives set in 2014/15 stated:

'In our workforce diversity report we identified an under-representation of ethnic minority staff at the more senior grades - Level 5 and above - and disabled staff at Levels 4 and 5.   Therefore we have set the following equality objectives for our workforce diversity to begin to address this…To increase the proportion of ethnic minority staff and disabled staff at Level 5 and above to that proportionate with the Commission’s overall workforce diversity over the next 4 years.'

Of the 64 staff now at level 5 and above, there are three who are from a BAME background. This is equivalent to 5% BAME staff in senior grades.

In the year 14/15, the figure was 11% (taken from the Commission's Workforce Diversity Report).  So in the first two years of the four year period, the Commission has managed to reduce the percentage of BAME staff in senior grades by 66%! There are still no Level 6 officers who are ethnic minorities. This is zero progress two years in.

And only 1 of the 9 staff at director level and above is an ethnic minority.  

You have explained that you have set a 50% target for shortlists for senior roles at the Commission. But, looking at the restructure table, it seems there are very few senior posts which are vacant.

With regards to Grade 6 and above, we see that since 2014/15 there has been an increase in the number of staff employed at this grade. The number of executive directors has doubled. We agree you need a Chief Legal Officer. However, we question why the Commission needs four executive directors when the total workforce will be only 160 or fewer staff.

We cannot understand how a publicly funded organisation facing budget cuts can justify creating jobs at senior levels where the salary bill will be very high, while getting rid of lower grades where BAME and disabled staff are concentrated.

We consider that it is only fair and just for the financial axe to fall equally across the grades.

Lastly, you will have now read the Supreme Court decision in Essop and others v Home Office [2017] UKSC 27, which the Commission supported. As you know, the court found that in order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put.  It is sufficient to show a causal link between a policy, criterion or practice and the disadvantage. We consider there is a strong causal link between the decision to cut jobs in lower grades and the disadvantage experienced by BAME staff.

We ask you to heed the words of Langstaff J in the EAT, to whom the court referred, who said 'a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result.’

We trust the Commission will act boldly, as we suggested, by pausing the process and carrying out a review. Hopefully, we do not need to remind you of your own obligations to ensure the Commission is acting lawfully under the Equality Act 2010 and the public sector equality duty.

At the very least, the Commission should practise what it preaches.

Yours sincerely,

on behalf of those present at the meeting:
Zita Holbourne, BARAC UK
Constantia Pennie, Race Equality Foundation
Simon Woolley, Operation Black Vote
Race Equality Matters
Lord Herman Ouseley

With the continued support of:
Society of Black Lawyers
GMB Regional Equality Forum
Momentum Black Caucus
Northamptonshire Rights and Equality Council
Race Equality Matters (REM)
Wellingborough Black Consortium
Hanef Bhamjee, OBE, Secretary, Action for Southern Africa –Wales
Professor Gargi Bhattacharyya, University of East London, UCU Black Members' Standing Committee
Michael McEachrane, PhD, co-founder of IDPAD Coalition UK

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