Equal Opportunities: Civil Service policy and agreement
- 1. Civil Service policy and agreement
- 2. Legislation and codes of practice
- 3. Legal responsibilities
- 4. Discrimination and sexual/racial harassment
- 5. Responsibilities for Equal Opportunities within DFID
- 6. Complaints about discrimination, harassment and bullying
- 7. The Equal Opportunities Commission (EOC), The Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC)
- 8. Combining work and domestic responsibilities
- 9. Equal Opportunity monitoring
- 10. Harassment and bullying
1. Civil Service policy and agreement
The Civil Service Equal Opportunity policy provides that all eligible people shall have equality of opportunity for employment and advancement on the basis of their suitability for the work whatever their sex, marital status, race, colour, nationality, ethnic or national origin, religion or belief, age or sexual orientation. It provides that there shall be no unfair discrimination on the basis of disability.
The policy has been jointly agreed by the Official and Trade Union Sides of the National Whitley Council. All parties affirm their full support for the principle of equality of opportunity and are concerned that there should be a practical and generally accepted programme of action. They are determined that everything possible is done to ensure its full and effective implementation.
2. Legislation and codes of practice
The Civil Service Equal Opportunity policy pursues and builds on the statutory position. The main body of anti-discrimination legislation is contained in the Sex Discrimination Acts 1975 and 1986 the Race Relations Act 1976 and the Disability Discrimination Act 1995. Equal pay is dealt with under the Equal Pay Act 1970 and the Equal Pay (Amendment) Regulation 1983.
Other provisions which are relevant are contained in the Recommendation and Approved Code of Practice on the Dignity of Women and Men at Work (EC 1991) and EU law, with particular reference to Article 119 - Treaty of Rome and the Equal Pay and Equal Treatment Directives of 1975 and 1976.
Gender re-assignment is covered by The Sex Discrimination (Gender Re-Assignment) Regulations 1999. New regulations dealing with religion or belief and sexual orientation came into effect in December 2003, namely The Employment Equality (Religion or Belief) Regulations 2003 and The Employment Equality (Sexual Orientation) Regulations 2003.
The Sex Discrimination, Race Relations and Disability Discrimination Acts are based on the principle of equal treatment. The Acts make it unlawful to discriminate against a person on grounds of - sex or marital status, colour, race, nationality, ethnic or national origin, disability. The new regulations dealing with gender re-assignment, religion or belief and sexual orientation also state that it is unlawful to discriminate against the groups covered by the regulations.
No-one should be denied access to a job, or other occupational benefit such as promotion, training or transfer, because of a characteristic - or set of characteristics - which has nothing to do with his/her capacity to do the job.
The Sex Discrimination and Race Relations Acts do not permit positive discrimination. They do, however, permit positive action in connection with training for particular work where women/men or people of a particular racial group are not represented or are under-represented in relation to their numbers in the workforce or the relevant population, for example development training for such staff to help fit them for work in which they are under-represented, for example for work at higher grades.
By contrast, the Disability Discrimination Act does not make positive discrimination on grounds of disability unlawful. DFID, however, prefers to use positive action to address the under representation of staff with disabilities.
These provisions of the legislation are designed to help disadvantaged groups compete equally for jobs and promotion but they are considered only as part of a wider Equal Opportunities strategy.
The Health and Safety at Work Act 1974, s.2(1), may also be relevant insofar as employers are under a general obligation to ensure the health, safety and welfare of all of their employees "so far as is reasonably practicable". Harassment within the workplace may have occupational health implications, ranging from the direct consequences of harassment or more subtle effects of working in an oppressive environment which may lead to stress-related illness.
Finally, some types of misbehaviour at work, including harassment can, when serious enough, constitute a criminal offence eg assault. Section 5 of the Public Order Act 1986 made "harassment" a criminal offence punishable by a fine. By virtue of Section 154 of the Criminal Justice and Public Order Act 1994, the Public Order Act 1986 has been amended to create a new offence of "intentional harassment, alarm or distress". This section of the Act came into force on 3 February 1995, and like Section 5 of the 1986 Act is applicable in England and Wales only.
However, staff in Scotland should note that although neither Section 5 of the 1986 Act or Section 154 of the 1994 Act applies to them, under the Common Law in Scotland harassment can constitute the criminal offence of Breach of the Peace. Section 154 of the 1994 Act provides that a person is guilty of an offence of intentional harassment if, "with intent to cause someone harassment, alarm or distress s/he:
- a) uses threatening, abusive or insulting words or behaviour or disorderly behaviour; or
- b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress".
Under the Act, intentional harassment is a criminal offence carrying a maximum penalty of six months imprisonment and/or fine of £5,000. Any misbehaviour at work serious enough to be a criminal offence will also be a disciplinary matter and will ordinarily amount to gross misconduct which will be dealt with accordingly and may, if proven, lead to dismissal.
As well as compliance with statutes, the department also undertakes to comply with the Codes of Practice on Employment produced by the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission.
The intention is to comply as much with the spirit as the letter of legislation and to establish and pursue an effective policy of promoting Equal Opportunities.
Both individuals and Government departments may be involved in legal proceedings for discrimination.
3.1. Legal responsibilities of individual members of staff
Individual members of staff are responsible if, as part of their job, they:
- commit an act of unlawful discrimination
- induce or attempt to induce another person to commit an act of unlawful discrimination
- help someone else to commit an act of unlawful discrimination. There is a defence if the help was given following assurances that the act was not unlawful
- victimise a person for asserting their rights under the Race Relations Act, the Sex Discrimination Act, the Disability Discrimination Act or the Equal Pay Act.
Remember that, in addition to any internal departmental complaints procedure (which could, of course, lead to your being disciplined by the Department) an individual can bring a civil action in the Courts against you if you discriminate against them. Individuals are not responsible for actions which infringe the Equal Pay Act.
3.2. Legal responsibility of the department
The department is responsible for discrimination by employees while they are doing their job, unless it can be shown that reasonable steps were taken to prevent the discrimination.
It is unlawful for the department:
- to instruct employees to discriminate
- or to put pressure on them to discriminate.
The department is solely liable for infringements of the Equal Pay Act. The Race Relations Act and EC law permits the limiting of employment in some jobs in the Civil Service to persons of a particular birth, nationality, descent or residence.
4. Discrimination and sexual/racial harassment
Unlawful discrimination can be
- on the grounds of sex or marital status
- on the grounds of colour, race, nationality or ethnic or national origins
- on the grounds of disability
- on the grounds of gender re-assignment
- on the grounds of religion or belief
- on the grounds of sexual orientation.
as defined by the Sex Discrimination Acts 1975 and 1986, the Equal Pay Acts 1970, the Race Relations Act 1976, the Disability Discrimination Act 1995, The Sex Discrimination (Gender Re-Assignment) Regulations 1999, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003.
Discrimination may be direct or indirect:
- direct sex discrimination occurs where someone treats a man or woman on the grounds of their sex or marital status less favourably than they treat, or would treat, someone of the opposite sex
- direct racial discrimination occurs where men or women are treated less favourably on grounds of colour, race, nationality or ethnic or national origins
- discrimination on grounds of disability occurs where someone treats a disabled person less favourably and where the treatment cannot be shown to be justified
- direct discrimination on the grounds of gender re-assignment occurs where someone treats a person undergoing gender re-assignment less favourably than others
- direct discrimination on the grounds of religion or belief occurs where someone treats a person from a particular religion or belief or in fact no belief less favourably than another religion or belief
- direct discrimination on the grounds of sexual orientation occurs where someone treats a person less favourably because of their sexual orientation
- indirect discrimination on grounds of race, sex, gender re-assignment, religion or belief or sexual orientation occurs when the treatment appears to be equal but is discriminatory in effect. There are three tests for indirect discrimination. First that it arises from the imposition of a general condition which results in a considerably smaller proportion of women, or one racial or religious group, or particular sexual orientation who can comply with it than the proportion of men or another racial or religious group, or a larger group of a particular sexual orientation. Second that it was to their detriment that they could not comply, and third that the requirement is not justifiable irrespective of sex. race, gender re-assignment, religion or belief, or sexual orientation.
There is no comparable concept of indirect discrimination on grounds of disability. Rather, the law imposes a duty on employers to make "reasonable adjustments" to working arrangements and the working environment. Failure by an employer to make such adjustments without justification will amount to an act of discrimination - victimising a person who has alleged discrimination or segregating a person on racial grounds are also unlawful.
Departmental management and the Trade Union Side believe that it is in the best interests of the Department and the staff that there should be an harmonious working environment in which all staff are treated equally irrespective of sex, race, disability, age, religion or belief, or sexual orientation. Deliberate harassment or bullying for any other reason is similarly unacceptable - see section 10 below.
Harassment at work may amount to discrimination and thus be a contravention of the Sex Discrimination, Race Relation or Disability Discrimination Acts and The Sex Discrimination (Gender Re-Assignment) Regulations, The Employment Equality (Religion or Belief) Regulations and The Employment Equality (Sexual Orientation) Regulations. Whether this is the case or not, deliberate harassment or bullying will not be tolerated and may be dealt with as a disciplinary matter.
Some forms of harassment, such as assault, are obvious. Others are less so. Examples are jokes, innuendo, racially or sexually degrading remarks, unsolicited comments, suggestions that sexual favours may further a person's career and the circulation or display of sexually or racially offensive material.
Perceptions of what constitutes harassment vary from one person to another - complimentary remarks on a person's dress for example may be unwelcome and if repeated persistently may well cause offence and amount to harassment.
It is too easy to trivialise the subject of harassment without regard to the hurt and misery it can cause and to the way it can undermine a pleasant working atmosphere between colleagues. It is important that everybody should be conscious that harassment at work will not be tolerated and may lead to disciplinary action.
5. Responsibilities or Equal Opportunities within DFID
5.1. The Department's commitment to Equal Opportunities
The importance management attach to Equal Opportunities is reflected in policies concerning recruitment, general personnel procedure (including allocation to duties) promotion and training.
All recruitment advertising for DFID staff through the press includes the statement the Civil Service is an Equal Opportunities Employer. Where advertising is handled by Job Centres they have undertaken this responsibility.
All members of recruitment and promotion boards are required to undertake diversity training which covers the importance of avoiding prejudice and discrimination. Written guidance is provided to board members to ensure that they guard against the biases and prejudice which can unintentionally arise. All board Chairpersons also remind members about this.
All new recruits are given copies of the race relations and Equal Opportunity policy statements at the induction stage.
A section on Equal Opportunities is available on the DFID intranet, included with the electronic versions of staff's annual performance forms. Completed annual performance forms are thoroughly scrutinised to ensure that discriminatory comments do not appear.
5.2. Departmental responsibility
The Director General, Corporate Performance and Knowledge Sharing is responsible for operating the Civil Service Equal Opportunities policy in this department.
Human Resource (HR) teams and line managers are responsible to the Director General, Corporate Performance and Knowledge Sharing for ensuring that all staff for whom they have responsibility are aware of this policy of Equal Opportunity and that there is no unlawful discrimination of any kind. For an Equal Opportunity policy to be effective it must be adopted at all levels of management and supervision.
5.3. Disability Liaison Officer
The Disability Liaison Officers are named on the DFID intranet.
The main responsibilities of the Disability Liaison Officers are to develop, promote, co-ordinate and monitor the implementation of disablement policies in the Department. They are also available to offer advice and practical assistance (with equipment and so on) to individuals.
5.4. Line management responsibility
All staff should be aware that harassment or bullying will not be tolerated and could lead to disciplinary action against the offender. Line managers at all levels should appreciate their responsibility both to set a good example, and to deal promptly and fairly with complaints of harassment or bullying. They must give full consideration to complaints of conduct which is either deliberately, or likely to be taken as, harassing or offensive.
In addition, managers should take prompt action to discourage and stop any instance of harassment as soon as it is identified. In some cases, by pointing out that behaviour is unacceptable, a manager will be able effectively to put an end to the problem without the need for any further action.
Staff involved in training are fully aware of the Equal Opportunities policy and the need to guard against unconscious discrimination. Equal Opportunities and diversity training is included in induction, selection and promotion interviewing, staff reporting and general management courses.
5.6. Individual responsibility
The Civil Service Equal Opportunity Policy Statements cover not only Departmental responsibility but also the responsibility of individual members of staff. The existence of a law cannot of itself ensure that any policy of non discrimination will work effectively. This will only be achieved if staff at all levels examine critically their attitudes to people and ensure that no trace of discrimination is allowed to affect their judgement.
In this connection staff should be aware of the forms which unfair discrimination can take, guard against them and avoid any action which might influence others to discriminate unfairly. Care should always be taken to guard against the more subtle and unconscious varieties of discrimination which may not easily be perceived.
These may result for example from general assumptions about the capabilities, characteristics and interests of particular groups, which are allowed to influence the treatment of individuals or groups.
6. Complaints about discrimination, harassment and bullying
An Equal Opportunity complaint will be appropriate where a person feels that he or she has not been treated fairly or equally because of his or her sex or race, nationality or ethnic origin, religion or belief, sexual orientation, the fact they are undergoing gender re-assignment or disability.
It could relate to any aspect of working life, for example job allocation, probation, reporting or training. The complaint may also be based on harassment or bullying. A complaint raised under the Equal Opportunities procedure will be dealt with under that procedure, but where there is a grievance complaint or appeal procedure already under way, such procedure must first be exhausted.
The following procedure for handling Equal Opportunity complaints has been agreed by management and the unions. Staff are assured that all complaints, formal or informal, will be dealt with promptly and thoroughly. Both parties will be treated fairly and sympathetically and every effort will be made to avoid unnecessary stress.
There will be no subsequent victimisation (for example an implication in an annual report that the individual is unduly sensitive). Staff bringing a complaint can be assisted or accompanied by a friend or colleague, a Trade Union Side representative (it is open to the complainant to approach the union at any time) or their Staff Counsellor.
At all stages in the proceedings Staff Counsellors are readily available to provide counselling. Everyone involved in Equal Opportunity complaints must always respect confidentiality so that there is no unjust effect on either party.
Complaints will be assumed to have been made in good faith and treated seriously and handled objectively and without any assumptions or preconceptions being allowed to influence the outcome of the case. Where it transpires that there is clear evidence supporting the conclusion that a complaint has been made maliciously this will be treated seriously and may lead to disciplinary action.
The main aim of any investigation into a complaint will be to establish the facts of the matter and resolve the grievance, in line with the Equal Opportunity policy, as quickly as possible. An investigation will normally start within 10 days of the complaint being made and every effort will be made to have it completed with 2 months.
6.3. Informal complaints procedure
Depending on the nature of the complaint the first step might be to raise the matter informally with the person concerned or with their HR team. If an informal approach does not resolve the problem or the original complaint is of a serious nature, then the matter can be pursued through the formal complaints procedure.
6.4. Formal complaints procedure
Formal complaints about discrimination, harassment or bullying should be made through the normal channels of line/personnel management except, of course, where the line manager is the person alleged to have carried out the discrimination. In such cases the complainant may consult higher line management or go straight to HR/Staff Counselling.
Where a formal complaint is made and is subject to a formal investigation, this will be conducted by a senior person or persons with knowledge, training and experience in the type of issues involved, as far as possible.
The nature of the complaint will be made clear to the alleged offender who will be given an opportunity to respond.
Each party to a complaint will be advised of the account of the other party and have an opportunity to comment on it.
Consideration will be given as to whether disciplinary action is appropriate.
Both parties to any complaint will be advised whether the complaint is upheld. Staff are reminded of their right to appeal against a decision made under the personal grievance procedure and the disciplinary procedure.
The follow up action which might be taken following the outcome of a complaint of discrimination could include any of the following, as appropriate:
- the recognition that counselling and support may be needed in certain situations and advice sought from the Staff Counsellor, or another suitable member of staff
- training as appropriate for either party to a complaint, for example training a manager in Equal Opportunity issues
- appropriate redress for a person found to have been discriminated against, for example amending a discriminatory staff report
- the transfer of one or other part to the complaint, as appropriate in the circumstances, whilst taking account of the requirement to avoid victimisation
- disciplinary proceedings against a person found to have discriminated against, harassed or bullied someone
- disciplinary proceedings, if appropriate, against a complainant who makes an ill-founded complaint and who does not hold an honest belief in the complaint made
- a review of policies and/or procedures where appropriate.
6.6. Individual complaints about discrimination which cannot be resolved internally
Staff who think they have been discriminated against and who consider they have failed to secure adequate redress have a legal right to take their case to an Employment Tribunal and to seek the assistance of the Equal Opportunities Commissioner, or the Commission for Racial Equality or the Disability Rights Commission.
Staff have the right to continue to pursue a complaint through internal proceedings after making a complaint to an Employment Tribunal (Employment Tribunals will generally agree to postpone hearings in order to facilitate this.)
In these circumstances complaints can be brought against managers as well as the employing department.
Individual complaints may be about:
- discrimination over employment; or
- discrimination over education, goods, facilities, services and premises.
6.7. Complaints about discrimination over employment
An individual may complain to an employment tribunal within 3 months from the date of the act which led to the complaint of discrimination (6 months under the Equal Pay Act). The Department is required to enter a notice of appearance within 14 days if they intend to resist the claim.
Advisory Conciliation and Arbitration Service (ACAS) conciliation officers have a duty to help the parties to reach a settlement without a Tribunal hearing.
Complaints are referred to conciliation officers by the Tribunal. They try to promote a settlement if they consider that they could act with a reasonable prospect of success; or if asked to do so by both parties.
ACAS is willing to help before a complaint has been formally made, if it is asked to do so by either or both parties.
Any information given to a conciliation officer will not be passed on to a Tribunal without the consent of the person who gave it.
Where a complaint goes to a Tribunal, and the Tribunal decides in favour of the complainant, the Tribunal may:
- make an order which sets out the rights of the parties
- make an order for the respondent to pay compensation to the complainant.
Compensation may cover:
- special damages. These are expenses and any other losses such as loss of earnings which can be measured; and
- general damages. These are losses which cannot be measured exactly, such as prospective loss of earnings or injured feelings.
Under the Equal Pay Act a Tribunal may:
- award arrears of remuneration or damages for a period of up to two years before the application was made to the Tribunal; and
- make a recommendation that the respondent take a particular course of action. The Tribunal will say when the action has to be taken. The Tribunal may order additional compensation if the action is not taken.
Duties of the Commissions
The duties of the Commissions are:
- to work towards the elimination of discrimination
- to promote:
- EOC: Equality of opportunity between men and women
- CRE: Equality of opportunity and good relations between persons of different racial groups
- DRC: Equality of opportunity and elimination of discrimination against disabled people
- to keep the working of the Race Relations Act, the Sex Discrimination Act, the Disability Discrimination Act and the Equal Pay Act under review.
Investigations by the Commissions
The Commissions may carry out formal investigations, either on their own initiative or when required to do so by the Secretary of State.
Legal proceedings
Only the Commissions may institute legal proceedings in cases involving advertisements, instructions and pressure to discriminate.
Action by staff
Any officer(s) receiving notification of:
- EOC, CRE and DRC formal investigations
- EOC, CRE and DRC enquiries about advertisements, instructions and pressure to discriminate; and
complaints made to Employment Tribunals must refer these to HR who will in turn refer the matter to the legal adviser.
8. Combining work and domestic responsibilities
It is in the interests of the department that we retain trained staff. Therefore consistent with the justifiable needs of the work as much help as possible is provided to staff to reconcile departmental work with their domestic responsibilities.
Opportunities for part-time working and job-sharing have been made available for some time in most parts of DFID. Line managers who refuse to accept part-time or job-share arrangements have to explain to HR how the needs of the office would be adversely affected.
New rights for parents were introduced in 2002 with the Employment Act 2002, giving all parents with children under the age of six (eighteen where the child is disabled) the right to request flexible working. The Act requires all employers to consider such requests and, except where there is a justifiable business reason for refusing, if at all possible agreeing to them.
Requests for Special Leave for exceptional domestic reasons are treated sympathetically. The arrangements for reinstatement are explained by personnel officers to staff who resign. Requests for reinstatement are considered sympathetically in the light of existing vacancies and previous reports.
In both Abercrombie House and Palace Street there are playschemes which go some way to providing childcare facilities for school age children during the school holidays. Details of these schemes (the location, cost and so on) are made available to staff via the DFID intranet prior to each school holiday. The Department can also reimburse extra childcare expenses incurred in having children looked after, where the job demands that the normal working routine has to be broken.
Anyone who would like help because their domestic responsibilities have changed and are making it difficult for them to carry on working should discuss their circumstances with the person most able to deal with it. Usually this will be their personnel officer. A Trade Union representative may also be able to help. They will discuss the case with the individual, advise on how it might be dealt with, and try to arrange something acceptable to both the member of staff and the department.
9. Equal Opportunity monitoring
To measure the effectiveness of their Equal Opportunity policy the Department collects data, via its computer systems, on the gender, ethnic origin and disability of staff and applicants. This is used to monitor and analyse staff in post and the affects on each group of key personnel procedures, including recruitment, career development, promotion, job allocation, resignations, personal review, performance pay and access to training and development opportunities and part-time working. All data collected on the ethnic origin of staff is treated as confidential. The department also makes statistical returns to the Cabinet Office (OPS) who monitor the overall effectiveness of the Civil Service Equal Opportunities policy.
The criminal offence of harassment is described in section 2.1 above. Examples of harassment which will amount to a disciplinary offence and may also amount to acts of discrimination under the relevant legislation include:
- verbal or physical threats or abuse, including racially or sexually derogatory or stereotyped remarks and statements
- mocking someone undergoing gender re-assignment
- innuendo, mockery, lewd or racist jokes or remarks
- an offensive manner of communication, for example leering and lewd gestures, touching, grabbing or brushing up against others, in the case of sexual harassment
- the display or circulation of sexually or racially offensive material, for example sexually suggestive material, graffiti
- using a religious symbol in a mocking or derogatory way
- unwarranted, intrusive or persistent questioning about a person's marital status, sexual interests or orientation in the case of sexual harassment or similar questioning about a person's racial or ethnic origin, including their culture and religion in the case of racial harassment
- suggestions that sexual favours may further a person's career or that not offering them may adversely affect their career
- sexual teasing, or suggestive remarks, sexual assault, sexist jokes and patronising or derogatory behaviour
- teasing someone about their religion or belief or about the religion or belief of a family member or friend of that member of staff
- deliberate exclusion from social activities.
For the purposes of DFID's disciplinary procedures, bullying is defined as abusive, intimidating, malicious or insulting behaviour which is likely to involve the misuse of power, position or workplace relationships to attempt to disadvantage, threaten, humiliate, undermine or ridicule others. It may be a single act, occasional or persistent in nature. It may sometimes be carried out concertedly by more than one individual.
Bullying may include:
- shouting at staff in public or in private
- personal insults
- sudden rages often for trivial reasons
- persistent criticism or condemnation
- unreasonably removing areas of responsibility
- ignoring, excluding or ostracising an individual
- setting menial or demeaning tasks
- setting impossible deadlines
- inconsistent demands
- always shifting the blame
- humiliating or dangerous "practical jokes"
- deliberate and avoidable overloading with work
- sending or circulating abusive or insulting notes or email.
