Is the UK’s equality legislation really broken?

Out-Law News | 05 Jan 2021 | 10:14 am |

Kate Dodd tells HRNews that recent criticism of the Equality Act 2010 is unfair

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  • Transcript

    As you may have seen in the news the government is planning to overhaul its equality policy and, as a consequence, quite possibly make fundamental changes to the Equality Act, which would, of course, impact on employers. At the centre of this is a speech by Equalities Minister Liz Truss who, shortly before Christmas, told the Centre for Policy Studies think that the legislation wasn't working. The BBC’s headline was ‘Equality debate can't be led by fashion’. The Telegraph’s was ‘Pivot from 'fashionable' race and gender issues to focus on poverty’ with the Minister hitting out at identity politics and unconscious bias training, saying her policy-reset will instead look at geographic disparities. The unions didn’t like what she said - Union News labelled her ‘minister for inequalities’ saying that her approach would result in less equality, not more. The HR press has covered this too, of course. Personnel Today’s headline is ‘Liz Truss criticises Equality Act’s focus on protected characteristics’ and describes the Minister’s criticism of the legislation, dismissing unconscious bias training as one of several ‘tools of the left’ that do nothing to ‘fix systems’. The Minister argues that the state’s agenda has become too narrow and that the discrimination debate should not focus solely on race, religion, sexual orientation and disability.

    The speech has raised a few eyebrows in employment circles which is hardly surprising given this is well established law that has been around for a long time. So is the Minister’s criticism of the Equality Act fair? It’s a question I put to Kate Dodd who joined me by video link from Manchester:

    Kate Dodd: “I suppose my view on that is that probably the criticism is unfair. I think the Equality Act has done a great deal and has provided a great deal of protection for people over the last 10 years and whilst I understand what Liz Truss is saying, which essentially seems to be that there doesn't really appear to have been much account taken under the Equality Act for social economic diversity, and what she's saying, in a nutshell, appears to be that the focus on protected characteristics to date doesn't really deal with geographical discrimination, or the inequalities faced by people that come about because of where they live and, of course, you can't get away from that, that is true. There is something of a postcode lottery and the last 12 months and the experiences of 2020 have actually shown us that there is a real difference in how people they feel that they're treated, the funding etcetera, depending on where people live, and there has been a lot in the news in relation to the north south divide, for example, and I do get that, and I do think that there needs to be a focus on geographical diversity, and in particular, social mobility and lots of businesses, including ourselves have got a real focus around social mobility along with the other focuses that are traditionally more acquainted with the Equality Act and I absolutely agree with that. But the problem I find with this approach generallyis that there doesn't seem to be recognition around intersectionality and we cannot forget the fact that people are treated differently every day because of certain protected characteristics. The summer of 2000, the Black Lives Matter movement etcetera has shown beyond doubt that people's experiences are different, and they are radically affected, by some protected characteristics more than others. There has obviously been a lot of controversy in the press around the word 'fashionable' with people referring to this idea of a focus on race equality as being the latest fashionable thing and, of course, lots of people, and myself included, think that that is not necessarily the right approach to take and that there needs to be a proper focus on race equality, as highlighted by the events of this year. So my view, Joe, is that actually the Equality Act is very necessary, it does good things, it does focus on particular protected characteristics and we would always encourage employers to look beyond those to ensure fairness and equality in terms of policies etcetera, but I think to simply look at the Equality Act and say it doesn't do what it's meant to do, or it doesn't provide protection to people, I think it is probably oversimplifying it and is going down the wrong route."

    Joe Glavina: "Can I ask you about unconscious bias training, Kate. The government has said it is scrapping this form of training and in her speech Liz Truss said the reason is because it is ineffective."

    Kate Dodd: “Yes, I mean, the effectiveness of unconscious bias training is actually something which I have been interested in and focused on for at least the last four or five years. The answer is, in short, that it is effective but it has to be done properly and like anything else if you approach something with only one strand of a solution that in itself is not going to work. Now, properly done unconscious bias training is a lengthy process, it allows for time for reflection, and it is done face to face, or online of course in a virtual world that we're in now, but ideally face to face and it's not the type of thing you would expect to be effective if it was, for example, delivered on a amass e-learning platform, for example. Of course, that might be the first part of it, but you would then expect there to be a real opportunity for people to reflect. So unconscious bias training in itself is the beginning, it's the opening of people's eyes to new experiences, to things that they haven't thought about before and it's about raising awareness and, of course, once you raise people's awareness, you then need to give them the tools to help them to start to look at themselves, to consider what their own biases or their own preferences might be and the effects that those biases or preferences might have on those around them. So simply telling somebody that they have biases and then walking away, or telling them that they have biases and they need to change isn't effective and, actually, there is evidence that that can create more harm than good. Some people have been very scathing about things like 'implicit association' tests for that exact reason, because they simply present somebody with perceived biases and don't necessarily give them the tools to help them to understand them more or to deal with them. So unconscious bias training, awareness-raising, as part of a much larger programme is effective and actually, interestingly Joe, this is something that the Equality and Human Rights Commission looked at back in 2018. They did a big evidence based study and what they found is that, yes, unconscious bias training is effective and they gave kind of three rationales, or three things that needed to be present in that in order for it to be effective. First of all, as I've just said, they said that the content and the context is key. So it has to be high quality, it has to be delivered by experts, it has to be delivered at a pace that allows people to learn and giving people, of course, the follow up. So there is no point you bringing me in for a day, or half a day, or a few hours and talking to me about unconscious bias if then I'm left alone to deal with that. It has to be part of a long term programme addressed at creating real and sustainable change. They also said that there needs to be evaluation and measurement available. So people need to be able to understand the effect of the decisions that they make. The  unconscious bias training, or inclusive leadership, training needs to be properly evaluated regularly to find out what people think of it and to continuously improve it. We know how quickly things move and if you have been rolling out the same inclusive leadership, or unconscious bias, training in your business for the last five years then I would suggest that that's probably very out of date and you need to look at it again and you need to look at what people are saying about that, about how effective they found it. Again, something I've already touched on, which was the third thing that was found in this report which was it has to be part of a wider picture, it has to be part of a programme and from Brook Graham's perspective, obviously I've worked closely with Brook Graham for many years, it's helping people to understand and change their behaviour on an individual, on a team and on an organisational level. So it's very important to encourage people to look at themselves through those three lenses and to set goals and to then follow up on that goal-setting in the same way that you would any other type of change management basically. So you'd expect to see, for example, that type of thing to be included in appraisals, that they would be having targets or objectives set for the following year, including those things that they've committed to as part of that training programme. So those three things, I think, are key but when done properly, and when done effectively, we know that it can make a real difference.”

    The speech by Liz Truss was delivered to the Centre for Policy Studies on 17 December. It is called ‘Fight for Fairness’ and it has been published in full on the government’s website. We have put a link to it in the transcript of this programme.

    LINKS

    - Link to speech by The Minister for Women and Equalities, Liz Truss - ‘Fight for Fairness’