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UNISON RACE RELATIONS AMENDMENT ACT 2000 A GUIDE FOR BRANCHES

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UNISON RACE RELATIONS AMENDMENT ACT 2000 A GUIDE FOR BRANCHES

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									             UNISON
       RACE RELATIONS
  AMENDMENT ACT 2000
A GUIDE FOR BRANCHES




         Membership Participation Unit
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
The Legal Background . . . . . . . . . . . . . . . . . . . . . .3
The Race Relations (Amendment) Act 2000 . . . . . . .4
The General Duty . . . . . . . . . . . . . . . . . . . . . . . . . 4
Specific duties . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Policy & Service Delivery . . . . . . . . . . . . . . . . . . . . .5
Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
The Trade Union response . . . . . . . . . . . . . . . . . . .5
Specific duties for schools . . . . . . . . . . . . . . . . . . .6
Specific duties for higher and
further education institutions . . . . . . . . . . . . . . . . . .6
Dealing with Race Equality Schemes . . . . . . . . . . . .6
Dealing with the Employment Duties . . . . . . . . . . . . .7
Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . .8
Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
Involving Members . . . . . . . . . . . . . . . . . . . . . . . . .9
Contracted out services/Procurement . . . . . . . . . . .10
A checklist of issues to raise with employers
about Potential and current contractors . . . . . . . . . .12
Code of practice . . . . . . . . . . . . . . . . . . . . . . . . .13
Getting Information . . . . . . . . . . . . . . . . . . . . . . . .14




                                                                              1
    RACE RELATIONS AMENDMENT ACT 2000

              Introduction                           employ local labour. This means        The Legal                                 Indirect Discrimination is more
                                                                                                                                      complicated and can be difficult
                                                     the workforce are also service
              UNISON believes that the Race          users. It also means that almost all
                                                                                            Background                                to prove in a court or tribunal.
              Relations (Amendment) Act 2000         aspects of the way that public         Race discrimination occurs when           Indirect discrimination flows from
              provides a framework in which real     authorities operate can have a big     a person is treated less favourably       some condition put on applicants
              progress on race equality in the       impact on the local community as       on the grounds of race, colour, and       for a job if the condition:
              public sector can be achieved.         a whole and black communities in       nationality, ethnic or national origin.   ■ is likely to lead to preference
              However legislation alone will not     particular
                                                                                            It is unlawful to discriminate              being given to one or more
              achieve a improvements in
                                                                                                                                        racial group rather than others;
              eliminating race discrimination.       Clearly UNISON branches will be        against any worker on racial
              The Race Relations Act 1976 has        particularly concerned with the        grounds. The Race Relations Act           ■ it cannot be justified by the
              been with us for almost 30 years.      employer’s employment duties           1976 makes it unlawful to                   requirements of the job.
              The UNISON ‘Facing the                 under the Act. However, it is hoped    discriminate in:                          Victimisation is straightforward
              Challenges’ report published in        that UNISON branches will also get                                               and occurs if you are treated less
                                                                                            ■ recruitment
              2003, demonstrates black workers       involved in discussions on their                                                 favourably because you have taken
              are still poorly represented in the    employer’s overall race equality       ■ pay (including bonuses and              action under the Race Relations Act.
                                                     scheme. The policy and services          shift premiums)
              work place and face high levels of
              discrimination and harassment.         duties of the employers may            ■ other terms and conditions
                                                     impact on the way that services          (e.g. holidays)
              If we are to ensure that progress is   are delivered and therefore on the     ■ access to opportunities or
              made in the work place then we as      way that jobs are done. Branches         benefits (e.g. promotion,
              trade unionists will need to be pro-   need to be involved in this as it        training, bonuses)
              active in representing the views of    may have a direct impact on work
              black members and negotiating on                                              ■ dismissal
                                                     organisation.
              their behalf. Whilst public                                                   ■ or by disadvantaging a worker
              authorities have legal duties under                                             in any other way on racial
              the Act, we should not rely on                                                  grounds.
              what they do to improve the                                                   There are three different kinds of
              working lives of our fellow black                                             discrimination forbidden by law.
              trade unionists.
                                                                                            Direct Discrimination occurs
              UNISON believes that high                                                     when a worker is treated less
              quality service delivery and                                                  favourably on the grounds of race,
              good employment practices are                                                 colour, and nationality, ethnic or
              complimentary. Often, public                                                  national origin. Direct discrimination
              bodies are the biggest employer                                               is relatively easy to identify but can
              in the area and they are likely to                                            be more difficult to prove.
2                                                                                                                                                                            3
    RACE RELATIONS AMENDMENT ACT 2000

              The Race                                should have due regard to the          Policy & Service                      ■ Producing a Race Equality
                                                      need to:                                                                       Scheme not an end in itself
              Relations                                                                      Delivery                                but a minimum standard
                                                      ■ Eliminate unlawful racial                                                    necessary to meet the
              (amendment)                               discrimination.                      Under these duties public
                                                                                                                                     general duty.
                                                                                             authorities will have to identify
              Act 2000                                ■ Promote equality of                  the relevant functions and policies
                                                        opportunity.
              The Race Relations (Amendment)                                                 (including proposed policies that     Employment
              Act 2000 gives public authorities a     ■ Promote good race relations          are relevant to the general duty.
              new statutory duty to promote race        between people of different                                                Most public bodies must also monitor
                                                                                             They should review this list at
              equality. The aim is to help public       racial groups.                                                             their employment procedures and
                                                                                             least every three years.
              authorities to provide fair and                                                                                      practices. This means they must
                                                      The aim of the duty is to make
              accessible services, and to                                                    Each public authority covered by      monitor, by ethnic group: -
                                                      the promotion of racial equality
              improve equal opportunities in                                                 the Act as part of the specific
                                                      central to the work of the public                                            ■ Staff in post
              employment. The Race Relations                                                 duties on policy & service delivery
                                                      authorities. The general duty also                                           ■ applicants for employment,
              (Amendment) Act has introduced                                                 is required to produce a Race
                                                      expects public authorities to take                                             training and promotion.
              new general duties for public                                                  Equality Scheme (RES).
                                                      the lead in promoting equality of
              authorities and some specific                                                  The scheme must set out the
                                                      opportunity and good race relations,
                                                                                             arrangements to: -
              duties that are designed to help        and preventing unlawful                                                      The Trade Union
              public authorities meet the                                                    ■ assess whether their functions
              requirements of the legislation.
                                                      discrimination.
                                                                                               and policies are relevant to
                                                                                                                                   response
              The CRE has produced a statutory                                                 race equality                       Where a public authorities has a
              code of practice, and four non-         Specific duties                        ■ monitor their policies to see
                                                                                                                                   150 or more full-time staff they
              statutory guides, to help authorities                                                                                must also monitor the numbers of
                                                      The Act also gives the Home              how they affect race equality
              in England and Wales meet their                                                                                      staff from each ethnic group who:
                                                      Secretary power to place specific      ■ assess and consult on policies
              duty. This advice can be found on
                                                      duties on public authorities to help     they are proposing to               ■ receive training
              the CRE website: www.cre.gov.uk
                                                      them meet the general duty               introduce                           ■ benefit or suffer detriment as
                                                      described above. The specific                                                  a result of performance
                                                                                             ■ publish the results of their
              The General Duty                        duties are “a means to achieving         consultations, monitoring and         assessment
                                                      the general duties in the Act rather     assessments
              The new general duties for the first                                                                                 ■ are involved in grievance
                                                      than an end in themselves.”
              time require public authorities to                                             ■ make sure that the public             procedures
              pro-actively fight racism. This                                                  have access to the information      ■ are subject to disciplinary
              general duty means that, in                                                      and services they provide             procedures
              everything they do (in relation                                                ■ train their staff on the new        ■ cease employment
              to policy, service delivery and                                                  duties
              employment), public authorities                                                                                      ■ the results of this monitoring
                                                                                                                                     must be published once a year.
4                                                                                                                                                                         5
    RACE RELATIONS AMENDMENT ACT 2000

              Specific duties for                     The Race Relations (Amendment)
                                                      Act gives branches an opportunity
                                                                                            scheme that your authority has          Dealing with the
                                                                                            produced. If you have not got a
              schools                                 to think about what improvements      copy of the scheme write to your        Employment
              Schools (outside Scotland) must         need to be negotiated to terms        authority and ask for one.              Duties
              prepare and publish a race equality     and conditions or policies and
                                                      procedures to improve the lives       When examining the scheme               UNISON welcomes the introduction
              policy and monitor and assess how
                                                      of black workers in the work place    branches need to ask themselves         of monitoring. It is a means of
              their policies affect ethnic minority
                                                                                            what effects the scheme will have       measuring whether the workforce
              pupils, staff and parents. The emp-
                                                      Whilst the Race Relations             in improving the lives of members       is representative of the wider
              hasis is on pupils’ achievements.
                                                      (Amendment) Act 2000 serves as        in the work place.                      community and of ensuring that
                                                      a guide to the issues that need to                                            no particular group of workers is
                                                                                                How will the scheme affect the
                                                      be considered, it is important that                                           disproportionately affected by any
              Specific duties                         we as trade unionists establish our
                                                                                                way that the service is
                                                                                                                                    policies or procedures. In many
                                                                                                delivered to black & minority
              for higher and                          own priorities for the improvements       ethnic communities?                 authorities some collection of data
              further education                       that we want to see.
                                                                                                Will the scheme have an effect
                                                                                                                                    may already be taking place but
                                                                                                                                    this may have to be extended into
              institutions                            Branches in conjunction with black        on the way that the service is
                                                                                                                                    areas that authorities have not
                                                      members need to establish a list          delivered by members?
              Higher and further education                                                                                          traditionally monitored. In other
                                                      of issues which they prioritise and   Branches should remember that
              institutions must prepare a race                                                                                      authorities the introduction of
                                                      establish when and how they are       the scheme should be realistic and
              equality policy, assess how their                                                                                     monitoring workforce factors by
                                                      going to present these issues to      should encourage authorities to
              policies affect ethnic minority                                                                                       race may be new.
                                                      their employer.                       include trade unions in the
              students and staff and arrange to
                                                                                            consultation process. If your           Branches need to ensure that they
              publish their policy, and the results
                                                                                            authority simply publishes the          explain to their membership why
              of assessments and monitoring.          Dealing with Race                     schemes and starts implementing         monitoring is taking place and
              Fighting race discrimination is         Equality Schemes                      it without involving the union, there   ensure that authorities introduce
              primarily a negotiating issue.                                                is a danger of a negative reaction      monitoring in a sensitive and
                                                      The purpose of Race Equality                                                  collaborative way. Branches should
              In the past the emphasis has                                                  amongst the workforce. If your
                                                      Schemes is to set out how public                                              check to ensure that individual
              been on dealing with individual                                               authority has not talked to you
                                                      authorities are going to meet their                                           confidentiality is protected. Some
              complaints of racial discrimination.                                          about the scheme, set up a
                                                      responsibilities under the Act.                                               of the issues that will need to be
              However, this emphasis has not                                                meeting as soon as possible.
              improved the working lives of           The scheme should include how                                                 discussed and addressed are: -
              black workers. UNISON believes          they are going to meet the                                                    ■ How will monitoring take
              that it is more effective to combat     employment duties as well as the                                                place?
              race discrimination collectively        policy and service delivery aspects
              by negotiating agreements and                                                                                         ■ Where will the information be
                                                      of the legislation. Your branch may
              procedures that benefit all staff.                                                                                      held?
                                                      be asked to comment on the
6                                                                                                                                                                         7
    RACE RELATIONS AMENDMENT ACT 2000
              ■ Who will have access to the          ■ What targets will be set?             Impact assessment is a systematic     authorities’ race equality strategy
                data?                                  These must be achievable and          approach to assessing who gains       as a whole. Branches should reject
                                                       practical.                            and who loses in any change that      this argument as all staff will be
              ■ In what form will the
                information be published?            ■ How will policies be reviewed         takes place. Branches will need to    required to work in a non-
                                                       and their impact assessed?            have an idea of the impact of any     discriminatory way and on the
              ■ What categories will be used?
                                                                                             claims that are put forward or        basis that frontline staff deliver
                                                     ■ How will black employees be
              ■ What happens if workers                                                      agreements that are being             services to the public and are in
                                                       consulted?
                refuse to comply with the                                                    proposed. In order to do this the     effect delivering the race equality
                monitoring?                          ■ What training will be                 following criteria can be used.       strategy.
                                                       provided?
              Information is a valuable tool in
                                                                                             ■ What are the aims of the            Public authorities will have concerns
              negotiating improvements for the       Branches need to be aware that
                                                                                               policy or agreement and how         about the financial implications of
              whole workforce as well as for         agreements or practices that have         will it work?                       training more than a few senior
              target groups. Your branch should      been negotiated at a local level
                                                                                             ■ What data and research is           managers, but if this legislation is
              make sure that getting regular         may have an adverse impact on
                                                                                               available?                          going to be properly implemented
              reports from the employer so that      black workers and may need to
                                                                                             ■ What is the likely impact on        then staff will need to know what
              it can use the information to pursue   be changed. Branches also need
                                                                                               race equality?                      they are required to do and how
              issues and claims that it may have.    to assess the impact of any claims
                                                                                                                                   they are required to behave.
                                                     or agreements that they are             ■ Who needs to be consulted
              Branches should see employment         currently negotiating or are thinking     about the effects of the policy
              issues under the Act as negotiating    of pursuing in the future.
              issues between the trade unions
                                                                                               or agreement?                       Involving
                                                                                             ■ What arrangements are in
              and the employer. Any changes to
                                                                                               place to monitor and review
                                                                                                                                   Members
              employment terms and conditions        Impact                                    the policy/agreement and its        Branches need to ensure that
              or work organisation and practices
              need to be the subject of
                                                     Assessment                                impact?                             there is a lot of discussion
                                                     Public authorities will be expected                                           amongst members so that they
              negotiations and agreement and
                                                                                                                                   understand what the legislation
              should not be brought in under the     to do impact assessments of their       Training                              says and why it is needed. Race
              umbrella of a general race equality    current and proposed policies to
                                                     ensure that they meet with the          Public Authorities are required to    equality is not just an issue for
              plan which has not been discussed
                                                     general duties under the Race           train staff in connection with the    black members and the effects
              and agreed with the trade unions.
                                                     Relations (Amendment) Act 2000.         general duty to promote race          of this legislation will effect a
              Among the employment issues that       Branches need to remember that          equality and any specific duties      lot of members because of the
              branches needs to consider are:        both formal and informal practices      that they may have under the Act.     responsibility that it places them
                                                     impact upon workers in different        It will be argued that the specific   under in the way that services are
              ■ How will the union be
                                                     ways and that this needs to be          duty is concerned with meeting        delivered and because it may involve
                consulted in the early stages?
                                                     taken account of.                       the training needs of those staff     changes in work organisation.
              ■ How often will information be                                                responsible for delivering the
                shared with the trade union?
8                                                                                                                                                                          9
     RACE RELATIONS AMENDMENT ACT 2000
               Branches should be aware that          should however, try to ensure that     therefore consider the                  unlawful discrimination and
               if changes are made without            the unions voice is heard if that is   arrangements it will need. In           promote equality of opportunity
               members understanding the              the only forum that is available.      practice this means that while a
                                                                                                                                     Branches should also enter into
               context and the content of those                                              contractor may be running a
                                                                                                                                     negotiations with their authority
               changes then members might be                                                 service, the public authority retains
               resistant to those changes even        Contracted out                         responsibility for meeting its
                                                                                                                                     and get them to ask race equality
                                                                                                                                     questions to potential contractors.
               though branch officers may think       services/                              general duty under the Act.
                                                                                                                                     Authorities need to be pressured to
               that they are needed. Branches                                                UNISON does not believe that this
               should try to ensure that the          Procurement                            is a sensible position as it means
                                                                                                                                     take account of responses on
                                                                                                                                     these questions when considering
               legislation and the authority’s        UNISON lobbied the government          that authorities will be responsible
                                                                                                                                     who they award contracts to.
               proposed Race Equality Scheme          to include contractors within the      for the actions of private
                                                                                                                                     Branches should also encourage
               is discussed at work place and         scope of the new legislation and       contractors whom they have very
                                                                                                                                     authorities to include race equality
               branches meetings and the              is extremely disappointed that this    little control over.
                                                                                                                                     criteria when contract compliance
               implications of what is being          is not the case.
               proposed made clear.                                                          Despite this branches that have         indicators are being drawn up.
                                                      The current position is that private   contact with private contractors
                                                                                                                                     Many public authorities are also
               Branches also need to consider         sector firms that carry out the        should ask them if as good
                                                                                                                                     the biggest employers in the local
               how they will consult black            functions of public authorities        employers they intend comply
                                                                                                                                     area and their procurement
               employees who must be                  covered by the Race Relations          with the provisions of the Race
                                                                                                                                     practices (from buying pens to
               consulted. This is an opportunity to   (Amendment) Act 2000 are not           Relations (Amendment) Act 2000
                                                                                                                                     buildings) can influence the
               recruit and involve black workers      directly covered by the Act. Any       and how they intend to do it.
                                                                                                                                     economic opportunities of black
               in UNISON in something that can        failure to comply with the Act will
               make a difference to the quality of                                           If the authority’s race equality        businesses. Branches should ask
                                                      be the responsibility of the public
               their daily working lives. Where                                              duties are relevant to the functions    authorities what they are doing to
                                                      authority.
               branches have black members                                                   it is contracting out, it may be        ensure that their procurement
               groups they should be involved in      The CRE Code of Practice states        appropriate to incorporate those        policies eliminate race
               the process of looking at the Race     that where a public authority has      duties among the performance            discrimination and promote
               Equality Scheme and commenting         a contract or other agreement with     requirements for delivery of the        equality of opportunity.
               on its implications. Some branches     a private company or voluntary         service. For example, a contractor
               that have black members but have       organisation to carry out any of its   could be required to monitor
               not established a group should set     functions, and the duty to promote     service users by their racial group,
               one up. Advice and assistance can      race equality applies to those         to make sure the authority is
               be sought from your Regional Officer   functions, the public authority        meeting its duties. In addition,
               and the Regional Black Members         remains responsible for meeting        public authorities may promote
               Committee. Some public authorities     the general duty and any specific      race equality by encouraging
               may set up their own group of          duties that apply to those             contractors to draw up policies
               black workers to consult. Branches     functions. The authority should        that will help them to avoid

10                                                                                                                                                                          11
     RACE RELATIONS AMENDMENT ACT 2000

                                                                                       Code of practice                       explains the general duty on public
                                                                                                                              authorities to make the promotion
                     A checklist of issues to raise with                               This is a “statutory” code. This       of race equality central to their work.
                     employers about Potential and                                     means it has been approved by
                                                                                       Parliament. It also means that it      The code also gives detailed
                     current contractors                                               is admissible in evidence in any       advice on how public authorities
                 " Is there a race equality scheme in place?                           legal action, and a court or           might comply with their specific
                                                                                       tribunal should take the code’s        duties. This includes guidance on
                 " Does the workforce mirror the local population?                                                            preparing and publishing a race
                                                                                       recommendations into account.
                 " Does it reflect those to whom the service is being provided?                                               equality scheme and on monitoring
                                                                                       The Commission for Racial Equality     employment procedures and
                 " What guarantees are in place to ensure that culturally specific     have published a code of practice      practice. There is specific advice
                   services can be provided including for small ethnic populations?    with a number of non-statutory         for educational institutions on
                 " What evidence can be provided of effective consultation with eth-   guides. The guides are: -              preparing a race equality policy
                   nic minority populations?                                           ■ A guide for Public Authorities       and putting in place arrangements
                                                                                                                              for meeting their specific duties on
                 " What arrangements are in place for workforce monitoring?            ■ A guide for Schools                  policy and employment.
                 " Do these include ethnic monitoring of grievances, disciplinary      ■ A guide for institutions of
                   action and performance appraisal, as well                             further and higher education         The amended Race Relations Act
                   as job applicants, staff in post and promotions and reasons for                                            applies to England, Scotland, and
                                                                                       ■ Ethnic Monitoring: A guide for       Wales. However the specific duties
                   leaving?
                                                                                         Public Authorities.
                                                                                                                              imposed by the Home Secretary
                 " What strategies are in place for addressing adverse findings from   The statutory code and guidance        only apply to non-devolved
                   monitoring returns?
                                                                                       offer practical advice to public       authorities in Scotland. The
                 " What provision is made for staff training to ensure that            authorities on how to meet both        Scottish parliament has the right to
                   all staff are clear about their responsibilities in relation        the general duty to promote race       approve separate specific orders
                   to the race equality policy?                                        equality and the specific duties. It   for Scotland (that is, the specific
                                                                                       aims to help public authorities to     duties that will apply in Scotland
                 " Does management competency refer to race equality issues, as
                   appropriate?                                                        adopt good practice and to eliminate   and the devolved bodies to which
                                                                                       racial discrimination. UNISON          they will apply).
                 " Has the Lawrence Inquiry definition of a racist incident been       branches will want to ensure that
                   adopted?                                                            their employers, as a minimum,         The CRE in Scotland has produced
                                                                                       comply with the code of practice.      a separate code and guidance for
                 " Do harassment policies specifically cover racial harassment?
                                                                                                                              public authorities in Scotland.
                 " What provision is in place for ensuring an assessment               The code lists all those public        Copies of all the codes and guides
                   of race equality impact assessment throughout the duration of       authorities bound by the general       for England, Wales and Scotland
                   the contract?                                                       and specific duties under the Act.     can be found on the CRE website.
                                                                                       It sets out the legal framework and
12                                                                                                                                                                      13
     RACE RELATIONS AMENDMENT ACT 2000

     Getting                               If you have any specific problems
                                           or need help or advice, then your
     Information                           branch secretary should contact
     The home office website               your regional officer who should be
     www.home office.gov.uk has            able to assist.
     some information on race equality
     schemes. There is also an
     overview of the Race Relations
     (Amendment) Act 2000.

     However the statutory code and
     various guides are all on the site
     of Commission for Racial Equality
     at www.cre.gov.uk. There you
     can download a copy of the code
     of practice, a guide for public
     authorities, a guide on ethnic
     monitoring, a guide for schools,
     and a guide for institutions of
     further and higher education. The
     draft codes for Scotland are also
     on that site.

     There is a UNISON guide that may
     be of help in negotiating with your
     employer on race issues. This is
     called “Local Bargaining – A
     guide for UNISON negotiators”
     (Stock no. 1801). It is available
     through your branch or from
     UNISON’s Communications Unit.

     Information on both negotiating
     and equality issues can also be
     found on UNISON’s website at
     www.unison.org.uk.


14
Designed by UNISON’s Communications Unit. Published and printed by UNISON,
 1 Mabledon Place, London WC1H 9AJ. CU/May 2004/1407/UNP xxxx/2000

								
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