RACE RELATIONS AMENDMENT ACT 1. The general duty and the specific duties What is the general duty? Section 71 (1) of the Race Relations Act 1976 places a general duty on universities to promote race equality. The duty means that, in everything they do, these authorities must aim to: eliminate unlawful racial discrimination; promote equality of opportunity; and promote good relations between people of different racial groups. The duty is obligatory (which means it must be met) and it must be applied to all „relevant‟ functions and policies. The weight given to race equality should be in proportion to its relevance. The parts of the duty are complementary (which means they are all necessary to make up the duty). Examples: Eliminating Unlawful Racial Discrimination A University used a computerised system to select students. The program was developed to mimic the admissions tutors‟ selection criteria. „Caucasian‟ and male applicants were given greater weight than ethnic minority and female applicants. The computer programme institutionalised the admissions tutor‟s discriminatory bias. Promoting Equality of Opportunity A University finds that ethnic minority staffs are under-represented in senior posts. To tackle this, it takes various steps. These include running a positive action training course in management skills for under-represented groups, and setting up a mentoring scheme and support group for its ethnic staff. Promoting Good Race Relations A University in a rural area with few ethnic minorities made links with an inner city college with a large ethnic minority student population. The colleges ran student exchange programmes and gave students active support in some subjects. What are ‘functions’ and ‘policies’? This guide follows the code in using the term „functions‟ to mean the full range of a public authority‟s duties and powers. „Public functions‟ means functions that affect (or could affect), the public. While only the courts can decide this, public functions would normally not include internal management or contractual matters such as staff employment, purchasing goods, works or services, or acquiring or disposing of premises. „Policies‟ means the formal and informal decisions about how a public authority carries out its duties and uses its powers. What does the duty mean in practice? ‘Obligatory’ Promoting race equality is not something you can choose to do or not do: you must make race equality a central part of any policy or service that is relevant to the duty. You must also assess how all your development and planning processes affect race equality, and make sure that you take account of race equality within all your monitoring, reviewing and evaluation systems. ‘Relevant’ The general duty will be more relevant to some public functions than others. You will therefore have to look at if, where and how race equality is relevant. While it may not be relevant to some purely technical functions (such as property management), race equality will always be relevant to service delivery and employment. ‘Proportionate’ Under the duty, public authorities must have „due regard‟ for race equality. This means that the weight it is given should be in proportion to its relevance. In practice, you should give the highest priority to those of your functions and policies that have the greatest effect on the public and that could affect different racial groups in different ways. The duty will be particularly relevant to functions such as student admissions; assessments; raising achievement levels; delivering the curriculum; discipline; guidance and support; and staff selection and recruitment. When you judge „relevance‟ or „proportionality‟, the size of the ethnic minority population in your area does not matter. Race equality is important, even if there is no-one from an ethnic minority group in your school or local community. Education plays a vital role in influencing young people, because the views and attitudes they form as pupils or students will probably stay with them for the rest of their lives. Also, racist acts (such as handing out racist literature) can happen in FE and HE institutions with no ethnic minority students. ‘Complementary’ The general duty has three parts: eliminating unlawful racial discrimination; promoting equality of opportunity; and promoting good relations between people from different racial groups. These three parts complement each other, which means they are all necessary to meet the duty. Sometimes they may overlap, so you could find that a decision you have made, or a policy that you have introduced, only meets one or two parts of the duty. For example, you may be involved in a project to tackle racial harassment or abuse. This may contribute to eliminating unlawful racial discrimination, but may not, by itself, promote good race relations or equality of opportunity. You will have to take other measures to make sure your institution is meeting each part of the duty. Promoting Race Equality Following an audit of its curriculum materials, a University produced a poster and put it up in the staff room and near photocopiers all around the University. The poster said: “Tutors, check your materials! Have you checked your favourite materials for equal opportunities issues?” Do you think that all your resources do the following? Promote equality of opportunity? Celebrate cultural diversity? Present positive role models? Challenge stereotypes? Educate your students for life and work in a multi-ethnic society? If you answered „no‟ to any one of the above, what are you going to do now? Please remember that a minor change to your course materials could make a major change to the way a student responds to the course”. How does the general duty apply to contracted services? You are responsible for meeting the general duty in all your relevant functions, including those that are carried out by someone else through a contract or a service-level agreement. This means you first decide whether the function has any impact on race equality. If it does, you must then ask how it affects the function and what you need to do to meet the duty. You should then make sure that you make this clear in service specifications and in contracts or agreements. You should also build them into the process you use to choose a contractor. How does the general duty affect partnerships? You are responsible for meeting the general duty when you carry out your functions with other organisations. If your partners are other public authorities who are also bound by the duty, each authority will be responsible for meeting its general duty and any specific duties. If your partners are private or voluntary organisations, you will need to be sure that the work you do jointly meets your race equality duties. Your private and voluntary partners do not have any similar obligation. What role do auditing and inspection agencies have? Agencies that carry out statutory inspections and audits of public authorities are bound by the general duty. They are responsible for making sure that they take account of the duty in their inspections and monitoring. In practice, this means that agencies like the Higher Education Funding Council will have to examine, and report on, whether you are meeting your general and specific duties. How are the duties enforced? Under the Act, the CRE has the power to enforce the specific duties. If we believe that you are not meeting those duties, we can issue a „compliance notice‟. This is a legal document that orders you to meet your specific duties within a certain time scale. You will also have to tell us how you will meet the duty and obey the notice. If you do not obey any part of the notice, we can apply to the High Court for a court order to make you so. If the court issues the order and you still do not obey, you will face legal action for contempt of court. The general duty can also be enforced through a judicial review. This means that the High Court will consider whether you took appropriate action to meet your duty (for example by dealing with any patterns of racial inequality that you found through monitoring). If the court finds that you did not take appropriate action, you will not have met the general duty and so you can be ordered to do something about it. Anyone who has an interest in the matter, including the CRE, can apply for judicial review. The code of practice can be used as evidence in any legal action. Although you do not have to follow the code, you will have to show that you are meeting your duties. Our advice is that you should be fully aware of the code‟s guidelines. 2. Specific Duties: Policies and Services Higher Education institutions have specific duties to: 3 (1) … before 31st May 2002, (a) prepare a written statement of its policy for promoting race equality(referred to in this article as its ‘race equality policy’) and (b) have in place arrangements for fulfilling, as soon as is reasonably practicable, its duties under paragraph (3) (2) Such a body shall, (a) maintain a copy of the statement, and (b) fulfil those duties in accordance with such arrangements. (4) It shall be the duty of [such] a body … to - (a) assess the impact of its policies, including its race equality policy, on students and staff of different racial groups; (b) monitor, by reference to those racial groups, the admission and progress of students and the recruitment and career progress of staff; and (c) include in its written statement of its race equality policy and indication of its arrangements for publishing that statement and the results of its assessment and monitoring under sub-paragraph (a) and (b). (5) take such steps as are reasonably practicable to publish annually the results of its monitoring under this article. Preparing and maintaining a written Race Equality Statement What is a race equality policy? Code 6.23 A race equality policy will help the institution to tackle racial discrimination, and promote equality of opportunity and good race relations across all areas of activity. To do this effectively, the policy needs to go beyond words and be put into action. Does the race equality policy have to be a separate policy? Code 6.26 The race equality policy can be combined with another policy, such as an equal opportunities or diversity policy. However, to meet the statutory requirement, the race equality policy will need to be clearly identifiable and easily available. To meet the duty, we suggest that, if you have a general equal opportunities or diversity policy, you should make race equality a separate section (or series of sections) within it. What should the race equality policy cover? Code 6.24 The policy should be a written statement linked to an action plan. A good policy would: set out the institution’s commitment to tackling race discrimination and promoting equality of opportunity and good race relations, and explain what this means for everyone connected with the institution; give details of how the institution will monitor and assess the policy’s effectiveness; clearly define roles and responsibilities so that people know what is expected of them; clearly explain what the institution will do if the policy is not followed; and set out how the institution will publish its monitoring results every year. We suggest that your policy should set out: how you will monitor and assess your progress towards meeting race equality targets; your general duty to promote race equality; and a timetable for regular policy reviews. Whom should we consult about the race equality policy? When drawing up the race equality policy, you should consult and involve anyone who is affected by it, including: ethnic minority staff and students; trade unions; and associations for ethnic minority staff or students. Using Ethnic Minority Networks A University was concerned about the under-representation of ethnic minority staff in senior positions, so it set up a network for ethnic minority staff. The network: gives ethnic minority staff the opportunity to support each other; speaks on their behalf; and puts the case for better training and development. The network has he full backing of senior managers, who regularly consult it on questions of equality. The network also helps to put the college‟s strategic and equality plans into practice. The network supported the college when it introduced its management development programme. The programme included training, mentoring and work-shadowing schemes. A number of ethnic minority staff on the programme applied for and were successful in achieving promotion to senior posts. How should we put the policy into practice? You should link your race equality policy into an action plan, and follow it through. The plan could be part of your school‟s strategic plan and you could develop and introduce it through the school‟s existing planning and decision-making process. Your policy should be approved by your governing body, because they are ultimately responsible for seeing that the institution meets the duty. Your policy should explain how you will train staff and governors in their new responsibilities. Staff and students will also need to know about the policy and understand what it means for them. We suggest that you make it clear in the policy how you plan to tell them about it, and keep them up to date with progress. Assessing the impact of policies What is the duty? Code 6.27 Under the duty, further and higher education institutions must assess the impact of their policies (including the race equality policy) on students and staff from different racial groups. When should we assess our policies? Code 6.29 Further and higher education institutions should assess the impact of their policies on students and staff from different racial groups, and build this assessment into their existing policy review arrangements. You are not expected to assess all your policies at once, but you should be able to show that you have a timetable for assessing them all. You must also be able to show that you will take account of race equality when you review your policies, and when you draw up and consider new policies. How should we assess our policies? To assess you policies you need information, by racial group, on needs, entitlements and outcomes for students and staff. The information will tell you whether your policies are affecting some racial groups differently. If you do find differences, you will need to explain them, and then consider what you might do to remove them. Code 6.30 Questions for assessing the impact of policies could include the following: 1. Is the institution helping all staff and students to achieve as much as they can, and get as much as they can from what is provided for them? 2. If not, which groups of students and staff are not achieving as much as they can? Why not? 3. How does the institution explain the differences between groups of students in terms of teaching and learning: drop-out rates; student progression and achievement; assessment; access to learning resources; support and guidance; and curricular and other opportunities? 4. Are these expectations justified? Can they be justified on non-racial grounds (for example, English language difficulties)? 5. How does the institution explain the differences between groups of staff in terms of grade and position; type of contract; career development; training; and other opportunities? 6. Are these explanations justified? Can they be justified on non-racial grounds (for example, a change in institution-wide policy on permanent recruitment)? 7. What is the institution doing to: raise achievement levels and tackle race inequalities in staff recruitment and student performance and progress; promote race equality and harmony; and prevent or deal with racism? 8. Can the action be traced back to individual policy aims and related targets and strategies? 9. does each relevant policy include aims to deal with differences, or possible differences, between groups of staff or students from different racial groups? 10. Do the policy’s aims lead to action to deal with the differences that are identified? 11. Is the action appropriate and effective, or likely to be effective? Are there any unexpected results? If so, how are they being handled? 12. What changes does the institution need to make to policies, relevant policy aims, and related targets and strategies? Using Equal Opportunities Groups A University has an equal opportunities group. The group has representatives from: teaching and non-teaching staff at various grades; ethnic minority employee groups; and trade unions. The group‟s role is to assess equal opportunities in the college and to advise on how all important policy developments will affect equal opportunities. The group reports directly to the college‟s executive board. From time to time, the group carries out surveys among staff and students to see how much they know about the college‟s policies and procedures for promoting equal opportunities and tackling discrimination. The equal opportunities group uses questionnaires, meetings and interviews – with groups and individuals – and makes recommendations to the board. What information can we use to answer these questions? Code 6.31 To answer these questions, further and higher institutions should consider: collecting and analysing relevant monitoring and other data; talking to staff and students from all racial groups to find out their needs and opinions; and carrying out surveys and research studies. Course Options and Representation An art department monitored applications by subject and found that Asian students – mainly those of Pakistani background – were well represented on all courses except the fine arts course. A survey of Muslim students found that they were interested in some of the other fine art modules. The department responded by reviewing its course options, and made sure that fine art modules were available as options to students on other courses. What should we do with results of impact assessments? Code 6.32 Further and higher education could use these assessments to: rethink their race equality aims, targets and strategies (where necessary); and influence and guide their planning and decision making. How can we take account of everyone’s views and needs? Code 6.33 Institutions should consider the views and needs of students and staff from different racial groups. This means clearly explaining to the groups concerned what the institution is doing and why. It also means that the institution should look at how it could communicate better (formally and informally) with staff and students from different racial groups, and involve them in planning and decision making. It is important that you get feedback on the methods you use to reach various groups, so that you know whether they are working. Monitoring What is the duty? Code 6.34 Under the duty, further and higher education institutions must monitor, by racial group, student admission and progress, and staff recruitment and career progress. What is monitoring? Code 6.35 Monitoring involves collecting data, and then analysing and assessing it to measure the institution’s performance and effectiveness. It also involves finding out how the institution can improve. Monitoring Checklists A University use the aims set out in its race equality policy to draw up responsibility checklists for its staff. For example, the checklists for teaching staff included: curriculum content; teaching methods and materials; classroom values; guidance and referrals to counselling and support services; and assessments Personal tutors, course tutors and heads of department also had their own checklists. The college has used feedback from the surveys to review and improve its staff training and support – together with monitoring data on performance and progress – to assess its policies and strategies for teaching, learning and the curriculum. Students: what should we monitor? Code 6.36 Institutions should monitor all stages of the student admissions process, from applications to outcomes. To help interpret the information, institutions might also consider monitoring other areas that could have an adverse impact on students from some racial groups, such as; choice of subject; home or international status; and selection methods. Code 6.37 Institutions should monitor all students’ achievements and progress. To help interpret the information, institutions might also consider monitoring other areas that could have an adverse impact on students from some racial groups, such as: student numbers, transfers and drop-outs, for each course; student assessment, including the results of different assessment methods, such as tests, exams, course projects, dissertations and continuous assessment; work placements, including success rates, satisfaction levels and job offers connected to placements; the results of programmes targeted at people from specific racial groups; and racial harassment. Student Work Placements A department monitored its student work placements. This included monitoring: access to work placements; progress reports; student complaints of discrimination or harassment; and job offers following the placement. The data showed that ethnic minority students: were more likely to be refused placements; were given less support by some employers; made a number of complaints of racism; and were less successful than white students in getting jobs with their placement employer after their work experience. As a result of their monitoring, the department made a number of changes. It introduced a „standards contract‟, which it sent to every work-placement provider. The contract set out what the college expected from providers, concerning equal opportunities, as well as the standard of support all students should get all the way through their placement. The department also introduced a policy of not using employers who failed to meet these standards. Individual course tutors took responsibility for making sure that recruitment to work placements was fair. They also gave students individual support before and during their placement, and regularly contacted the work provider to discuss students‟ progress. The department‟s swift action led to a marked fall in the disparities between ethnic minority and other students. The department‟s action plan included a target to remove the disparities completely within three years. Staff: what should we monitor? Code 6.38 Institutions should monitor all activities that related to staff recruitment and selection, and to career development and opportunities for promotion. Monitoring should be done for each department as well the whole institution. This is likely to include: the selection and training of panel members; applications and appointments; success rates for the different selection methods used (for example, psychometric testing); permanent, temporary or fixed-term appointments; and home or international; status. Code 6.39 Institutions should monitor all areas that could affect career development and promotion. This is likely to include: staff, by their grade and type of post; staff, buy their length of service; staff training and development, including applications and selection, if appropriate; the results of training and career-development programmes or strategies that target staff from particular racial groups; staff appraisals; and staff promotion, including recruitment methods and selection criteria. Extensive and Intensive Monitoring A University revised its monitoring systems to include data collection on ethnic background, sex, disability, nationality, home and international status, and grade. When the college analysed the data it revealed that ethnic minority staff (particularly women) were under-represented in full-time and permanent teaching posts, and in senior positions, throughout the college. The data also showed that it took longer for them to get promotions than other staff. The University decided to investigate this more thoroughly and launched a detailed study of its ethnic minority staff. The study found that ethnic minority staff: were more highly qualified than their white colleagues; made on average, twice as many applications as white staff before getting a promotion; and had fewer opportunities for training and career development, partly because they were more likely to be in part-time positions. As a result, the University took a number of steps, including: reviewing and revising its recruitment and selection policy and procedures, to make sure they took account of equal opportunities; training all recruitment and selection staff in equal opportunities; reviewing and revising its policy and procedures for creating teaching posts – and for deciding whether whey were full time or part time – so that there was consistency across all departments; checking that monitoring reports were produced for creating teaching posts – and for deciding whether they were full time or part time – so that there was consistency across all departments; checking that monitoring reports were produced once a year and that they went to all planning and decision-making groups in the college, and to the ethnic minority support group, trade unions and staff groups; making sure that copies of reports highlighting inequality problems or patterns in certain departments actually went to these departments each year, and that they produced action plans setting out how they planned to deal with the issues; setting up a support group for ethnic minority staff, which reported directly to the college principal; revising the selection criteria and procedures for training and development, so that part time staff were not left out; a positive action plan to offer ethnic minority staff training in management skills; and a mentoring scheme for ethnic minority staff and other groups who were under-represented in various ways. This action programme led to an increase in the number of people from ethnic minorities achieving senior posts and permanent positions in the college. Ethnic minority women made the biggest improvements. How should we use the monitoring data? Code 6.40 Institutions will find it useful to assess their monitoring information to evaluate the progress they are making towards meeting their race equality targets and aims. These assessment will help the institution to: highlight any differences between staff and students from different racial groups; ask why these differences exist; review how effective their current targets and aims are; decide what more they can do to improve the performance of students from different racial groups (including positive action as stated in section 35 of the Race Relations Act) and to improve the recruitment and progression of staff from different racial groups (again including positive action as stated in sections 37 and 38 of the Race Relations Act); and rethink, and set targets in, relevant strategic plans. Using Mentoring A teacher training institution was worried about the low number of ethnic minority students who were enrolled, so it introduced a „mentoring‟ programme. Students who volunteer for this programme are attached to a mentor (adviser) who is a specially trained teacher. The mentors are themselves either from an ethnic minority group or have a considerable understanding of racism (or both). They advise students on both personal and professional problems. Their job is to listen, advise, serve as an advocate and help with job applications. The mentors are supported by the college‟s counselling services. A written statement What is the duty? Code 6.41 Under the duty, further and higher education institutions must include a statement in their written race equality policy about their arrangements for publishing the race equality policy, and the results of assessment and monitoring. What should the statement cover? Code 6.42 The statement should give details of what will be published and how it will be published. Code 6.43 details of how the consultation, assessment or monitoring was carried out; a summary of the comments and responses received from consultations; a summary of the main findings of assessments or monitoring; as assessment of the policy options, including conclusions about promoting race equality and tackling problems; and details of what the institution will do. Who should get information? We suggest that all staff and students are given either a copy or a summary of the race equality policy. In the case of assessments and monitoring reports, you can limit the information to those who might be affected by the policy. 3. Specific duties: Employment Higher education institutions are not directly bound by the employment duties. However, you will need to take account of employment matters to meet your general duty. It is important, therefore, that you examine the employment duties and the guidance set out in the code of practice. Code 5.1 The specific duty on employment applies to most of the public authorities bound by the general duty. Schools and further education and higher education institutions are not bound by the employment duty, as they have separate employment responsibilities. A few, mainly advisory, agencies are also not bound by the employment duty. Code 5.2 Sections 5 (1) (2) and (3) of the Race Relations Act (Statutory Duties) Order 2001, state the following: 5 (1) A person to which this article applies shall, st (a) before 31 May 2002, have in place arrangements for fulfilling, as soon as is reasonably practicable, its duties under paragraph (2); and (b) fulfil those duties in accordance with such arrangements. (2) It shall be the duty of such a person to monitor, by reference to the racial groups to which they belong, (a) the numbers of – (i) staff in post, and (ii) applicants for employment, training and promotion, from each such group, and (b) where that person has 150 or more full-time staff, the numbers of staff from each such group who (i) receive training; (ii) benefit or suffer detriment as a result of its performance assessment procedures; (iii) are involved in grievance procedures; (iv) are the subject of disciplinary procedures or (v) cease employment with that person. (3) Such person shall publish annually the results of its monitoring under paragraph (2). Code 5.3 Public authorities that must produce Race Equality Schemes should include their arrangements for meeting their employment duty in their schemes. Code 5.4 All local education authorities (LEAs) have a specific duty to monitor current and prospective staff at every maintained school in their area, by their racial groups. Code 5.5 The specific duties on employment are meant to provide a framework for measuring the progress of equality of opportunity in public sector employment. The specific duties are also meant to provide monitoring information to guide initiatives that could lead to a more representative public sector workforce; for example setting recruitment targets for under- represented racial groups, or targeting management development courses at racial groups that are under-represented at certain levels. This duty will help public authorities to meet their general duty to promote race equality in all areas of their work. Code 5.6 Ethnic monitoring is central to providing a clear picture of what is happening during the authority’s employment cycle – from job application and joining the authority to leaving it. The monitoring helps to measure overall progress and to demonstrate the success of equal opportunities policies. Monitoring is the essential tool in assessing progress – or lack of it – in removing barriers to equality of opportunity in the public services. Code 5.7 It is important that the authority explains to applicants and existing staff why they are monitoring employment. People will normally only have to give information about their racial group voluntarily, and the authority should explain the conditions of the Data Protection Act (about processing such information) to them. Code 5.8 Wherever possible, public authorities should combine monitoring data with their existing information systems. The authorities may be able to publish their monitoring results each year through the reporting systems they already use. In their published results, they should explain how they are dealing with trends or problems highlighted by their monitoring. Public authorities may also find it useful to combine and analyse ethnic monitoring data with other data; for example on sex, and disability. Code 5.9 To meet the specific duty on employment, public authorities should: collect ethnic monitoring data; analyse the data to find any patterns of inequality; take any necessary action to remove barriers and promote equality of opportunity; and publish the results of the monitoring each year. Code 5.10 If the monitoring shows that current employment policies, procedures and practice are leading to unlawful racial discrimination, the public authority should take steps to end the discrimination. As a first step, the authority should examine each of its procedures closely to find out where and how discrimination might be happening, and then consider what changes to introduce. Code 5.11 On the other hand, the monitoring may show that current policies, procedures and practice have an adverse impact on equality of opportunity or good race relations (even though they are not causing unlawful discrimination). If this is the case, the public authority should consider changing its policies or procedures so that they still meet the same aims, but do not harm equality of opportunity or race relations. Positive action Code 5.12 If monitoring reveals that some racial groups are under-represented in the workforce, the public authority could consider using ‘positive action’. This allows employers and others to target their job training and recruitment efforts at their workforce generally. Positive action does not allow discrimination when deciding who will be offered a job. Ethnic categories and the 2001 census Code 5.13 Public authorities are encouraged to use the same ethnic classification system as the one in the 2001 census. Some public authorities already have systems in place. If public authorities choose to collect more detailed information, they should make sure that the categories are similar to those used in the 2001 census. Any extra ethnic categories added to reflect an authority’s particular circumstances should aim to fit in with the 2001 census categories. Code 5.14 Public authorities should make realistic and carefully time-tabled plans to adapt their ethnic monitoring systems to meet the specific duties. Code 5.15 The 2001 census used different ethnic classifications for England and Wales and Scotland.
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