Follow Up Letter to the EHRC from Race Equality Organisations

David Isaac CBE
Chair
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.

Mitigation
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
Blacksox
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

Letter to EHRC from Race Equality Orgs : sacking of black staff

                     

David Isaacs CBE
Chair
Equality and Human Rights Commission
Fleetbank House
2-6 Salisbury Square
London EC4Y 8JX 3 March 2017

Dear David Isaac,

It is with sincere regret that we feel obliged to write to you about the decline in the number of BAME staff at the Commission.

It has come to our attention that the number of BAME staff - especially visible minorities - has been declining for several years without any serious attempt to halt or reverse it.

We understand that twelve members of staff were selected for compulsory redundancy. Only two of the twelve staff are White British. Eight are from a BAME background, four are Muslim, six are disabled.  Apparently, seven of the twelve members of staff were unceremoniously ‘sacked’ by email on 9 February and told their last day would be 10 February.

We further understand there are no visible minorities amongst the senior management team. The only one Black director, who was on the team, was among the twelve workers who were made redundant.  We also understand that all but two of your remaining BAME workers are in the lowest three grades.

We consider this a matter of grave concern.

The legacy commission, the Commission for Racial Equality, possessed a unique racial justice acumen shaped by its diverse workforce at every level and in all departments. We believe if the Commission is not similarly diverse, it will lose credibility, authority and legitimacy with the public.

In our opinion, it is not satisfactory or acceptable simply to say the percentage of BAME workers reflects the percentage in the national population and especially not with main offices in London and Manchester. But this is not just about numbers: the personal experiences and viewpoints, which a diverse workforce brings, are essential if the Commission is to challenge the majority or mainstream beliefs. In a climate of rising levels of racist and Islamophobic attacks and where the majority opinion in GB seems to be anti-immigrant, anti-Black and anti-Muslim, then it is even more important that the Commission’s staff can stand firm against prevailing views. We believe this means recruiting a larger percentage than that in the national population - or even the local population where that is higher than the national figure.

Also worrying is the assessment of these workers as having no skills. Some of them were at the forefront of maintaining good relations in times of heightened racial tensions during periods of riots, the Stephen Lawrence Inquiry, and the 7/7 terror attacks. Such an assessment disregards the value of this work and their commitment to the protection and promotion of equality and human rights. (Presumably, it is a specification for working at the Commission that employees have a demonstrable understanding of discrimination and good relations?).

On a personal front, BAME workers are only too painfully aware of discrimination, racism and social injustice. You are unlikely to know the individuals, but each one will have a personal history of struggle, obstacles and racism. Yet, the Commission has effectively told them they have no skills to hold a job with it and their experiences have been dismissed with the cold despatch of an email.

We realise the Commission’s website says it plans to address any under-representation with positive action measures. This has been the Commission’s answer to the decline in the number of BAME staff since 2011/12 when the numbers started to fall dramatically. Yet, as far as we are aware, the Commission has never used positive action measures, despite its assurances to do so.

But, more importantly, we do not consider that BAME staff or job applicants lack the skills for a position at the Commission or that positive action is necessary to equip them with the necessary skills. Given the nature of the work, we think it is, quite frankly, an insult to suggest that they lack the skills. The Commission had BAME senior professionals, lawyers and directors but almost all have gone. And we believe it will be difficult to recruit BAME staff with this poor history as it doesn’t inspire confidence or respect.

Whilst we’ve welcomed your recent statements on race hate crime, we do not believe you can or should speak for our communities. And whilst you might consult us as stakeholders, we also want to see our communities represented amongst your workforce - and not just in lower grades. Until we see progress in this area, you risk losing our trust and confidence.

We take this opportunity to remind you that the Paris Principles on the status and functions of national human rights bodies require such bodies to be ‘established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the protection and promotion of human rights.’ The Principles also require them to work with others ‘to combat racism, to protect particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons)...’

Unfortunately, we doubt whether the Commission can meet these obligations.

We were also appalled by the brutal manner by which the Commission terminated the contracts of those made redundant on 9 February. We understand they were served with redundancy notices by email while they were on strike - a strike called by the trades unions - and told the next day would be their last day. Trade union rights are protected human rights. And the requirement for ‘pluralist representation’ includes trades union representation.

This behaviour must be unprecedented for any employer. But, we rightly expect more from the Commission than other employer. But, even if the Commission followed a lawful process, we still expect a fair and compassionate process - to do what’s morally right, not just what is lawful.

We would like to conclude by affirming our support for a strong and effective national equality and human rights body which is diverse at all levels - and not just in terms of race but other characteristics. (We are also worried by a similar decline in the number of disabled and older staff).

Sadly, we now have serious doubts about the Commission’s credibility, authority and legitimacy with our communities.

We would welcome an opportunity to discuss our concerns with you in a meeting.

Finally, please kindly note other organisations share our concerns but they were unable to sign at this time.

Yours sincerely,

Lord Herman Ouseley
Hanef Bhamjee, OBE, Secretary, Action for Southern Africa –Wales
Professor Gargi Bhattacharyya, University of East London, UCU Black Members' Standing Committee
Peter Herbert, Society of Black Lawyers
Michael McEachrane, PhD, co-founder of IDPAD Coalition UK
BARAC UK
Blacksox
GMB Regional Equality Forum
Momentum Black Caucus
Northamptonshire Rights and Equality Council
Operation Black Vote
Race Equality Matters (REM)
Wellingborough Black Consortium




Please reply to:
REM
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email: raceequalitymatters@hotmail.com