Thursday 8 March 2018

A one-day conference
Unite the Union, Liverpool
9.30am - 3.00pm

Organised by the Institute of Employment Rights

About the Conference

On 08 March 2018, delegates met at the Unite North West Regional Offices for the Institute of Employment Rights' Racism at Work conference.

Below is a summary of each speaker's contribution with links to the papers and presentations they used on the day.

Shavannah Taj, PCS - Racism at work and organising migrant workers: a PCS perspective

Shavannah Taj shared with delegates the work her union has undertaken to protect migrant workers in the public sector and promote equality at work. She stressed that "Equality at the heart of everything we do" is a reality at PCS and not just a slogan.

Drawing upon the information PCS has collected, she took delegates through the issues affecting their members, and particularly minorities. These included the public sector pay cap, office closures, discriminatory HR policies, bullying and harassment, concerns over immigration status (such as threats of deportation), and a significant rise in racism and islamophobia both in the workplace and society at large.

In particular, she highlighted the union's success in challenging discriminatory Performance Management Systems. Members of the union successfully campaigned to have these systems dismantled in Civil Service Departments after research by Keele University - commissioned by the union - showed men, older workers, part-time staff, black workers and disabled workers were more likely to receive a "must improve" grade and less likely to receive an "exceed" marking. The union's success in this campaign was put down to its use of several different strategies, including mobilisation of its members and activists to assert their rights as well as the preparation of a legal argument highlighting discriminatory practices.

In addition to campaigns like this, PCS conducts equality mapping and ensures that employers undertake Equality Impact Assessments.

Turning to the government's Equality, Diversity & Inclusion Strategy and Action Plan, which used the Civil Service as an initial testing ground, Shavannah said its recommendations go some way to improving equality but are negated by Tory attacks on union facility time. Despite this, PCS has worked to put procedures in place that protect ethnic minorities, including producing a practical guide for branches called Collective Bargaining for a Fair Workplace - Negotiating for Race Equality; and training activists in order to both increase their understanding of the issues facing members and build their confidence in how to resist unfair treatment.

As well as encouraging equality at work, PCS has undertaken exercises to promote equality within its own organisational structure. Through a national union strategic review, PCS found that BAME workers showed more interest in getting involved with their union but faced more barriers in doing so. In response, the union is identifying, training and developing black union advocates; setting up pan-equality regional networks to organise for equality, freedom and justice; and campaigning on those issues that members and non-members say they care the most deeply about. It has produced the PCS Charter for Equality - a six-point checklist against which decision-making bodies within the union can ensure they are doing everything they can to support equality.

Shavannah concluded her presentation with a call for unions to continue making their voices heard against austerity and its damaging effects, as well as working with anti-racist/fascist organisations to resist racial hatred.

Laurence O’Neill, OH Parsons – Proving Race Discrimination: the shifting burden of proof

Laurence covered a number of tribunal cases which all demonstrated how the burden of proof has changed in racism claims. He initially discussed the test for direct discrimination and the use of comparators in tribunals. He then went on to say that racism is very hard to prove in court, as there is a two-stage burden of proof.

Laurence then went on to discuss the best way for claimants to bolster their cases from the start, by exhausting company procedures first, and also requesting disclosure through ACAS guidance and requesting a subject access request for as much information as possible, which the case may later rely on.

Download Shavannah's presentation

Dr Wanda Wyporska, Equality Trust – Racism: recognising and responding

Dr Wanda Wyporska began her presentation by reminding delegates that equality is not about treating everybody exactly the same way or separating people into groups based on protected characteristics. Rather it is "the state of being equal, especially in status, rights, or opportunities".

She pointed out that equality is facing new challenges in a changing landscape that includes cuts to the funding received by Equality and Human Rights Commission and local resources such as the Citizens Advice Bureau, Brexit, and the rise in food banks.

Wanda led delegates through the Equality Act 2010, with particular focus on the Public Sector Equality Duty, which requires that public authorities pay due regard to how they can eliminate discrimination, advance equality, and foster good relations between different social groups in the carrying out of their functions.

She defined explicit discrimination and victimisation, such as through harassment, as well implicit discrimination through recruitment practices, marketing and media, the organisation of shifts and holiday allowances, the provision of promotions and training, and the structure of organisations themselves.

Wanda concluded by talking through the various means of response available to equality campaigners in the face of discrimination, including Equality Impact Assessments and empowering union members to get involved.

Download Wanda's presentation

Owen Espley, War on Want - Challenging Hierarchies, Building Solidarity: Migrant Workers & Precarious Contracts

Owen Espley began his presentation by noting the many hierarchies of rights within the British legal system. This includes the legally defined distinction between 'employees' (who are eligible to receive all rights), 'workers' like those on zero-hour contracts and people employed through agencies (who are eligible to receive only fundamental rights, such as the minimum wage and holiday pay), and 'self employed' people (who have no legal rights). Owen pointed out that many people who believe themselves to be - and have been informed by employers that they are - self employed are actually legally defined as 'workers' or 'employees' and are being exploited. Owen highlighted that migrants are more likely to be precarious 'workers' or bogus self employed and are therefore both entitled to fewer rights, and more difficult to protect, because it is much harder to challenge sexism or racism when you risk losing shifts as a result.

Migration status also has a hierarchical structure, from those with UK; those who have their right to work attached to them as a person; those who have their right to work attached to a particular employer or sector through the Work Permit System; and undocumented workers, who are the most vulnerable.

The effect of these hierarchies is to reduce a migrant's leverage against an employer and thus make them more vulnerable to exploitation. For instance, a person on a zero-hours contract may feel pressured to agree to short-notice shifts in case they are otherwise let go; a migrant on a seasonal contract must work according to the employer's timescale; a migrant who is sponsored by an employer is dependent upon them; migrants may feel compulsed to take any offer of work by either the welfare system or by fear of returning to a nation that may be wartorn or impoverished.

The current political situation in the UK may embed these hierarchies further: insecure work is on the rise, a new migration regime may be implemented after the UK leaves the EU, austerity and a push towards privitisation are ideologically preferred by the current government (who are also eroding the universality of rights, such as to NHS healthcare), and in response to a sense of threat, racial and gendered divides are being deepened. The current government, Owen pointed out, are helping to strengthen these divides by rationalising precarious working conditions by the existence of non-traditional workers, such as seasonal staff; and promoting a narrative that distinguishes between 'shirkers' and 'strivers'.

To remove the hierarchies that create vulnerability and encourage exploitation, War on Want is campaigning for a universal status of worker (which is also a key recommendation in the Institute of Employment Rights' Manifesto for Labour Law) and equal labour and social rights for migrants regardless of the path they took to enter the country. The charity is also mobilising migrant communities to campaign for equal treatment.

Download Owen's presentation

Professor Sonia McKay - A track record of a Conservative ministry of labour: undocumented migrants and sanctions

Professor Sonia McKay focused on government policies on undocumented migrants. She reported that sanctions have been repeatedly increased against both employers and migrants for working without permission. Raids of businesses are not informed by intelligence, but are targeted according to sector. Most of these raids turn out to be unjustified, and the businesses targeted are almost entirely those operated by ethnic minorities.

Trade unions and employers are against the sanctions, Professor McKay noted. This is because of the deleterious and counterproductive effect they have on the safety of workers and erosion of workers' rights. Studies suggest they result in more exploitative working relationships as migrants are too afraid to report violations or join trade unions. Case studies from the USA have shown that raids are often used to bust worker organisation. Moreover, rather than the sanctions solving the issues associated with undocumented work, it simply forces the practice underground, with migrants pushed into the margins of the informal economy, given poor wages, and under increased threat from their employers.

Download Sonia's presentation

Emma Game, Thompsons Solicitors - Race pay disparity and how to tackle it

Emma Game focused on the issue of poor pay and progression for ethnic minority workers, sharing statistics that illustrate the persistent wage gap they experience. Race pay disparity has a complex array of root causes, from a higher concentration of BAME workers in low-paid, lower-status, and precarious employment; to unconscious biases in recruitment and promotional practices; to outright discrimination.

Emma proposed several areas where existing laws can be used to help protect workers from ethnic minorities and close the pay gap. These included employing the Direct race discrimination and public sector equality duty (PSED) sections of the Equality Act 2010, as well as the National Minimum Wage Act and Regulations. She underlined the fact that it is unlawful for a worker to be treated less favourably because of race than another worker not of the same race has been or would be treated in not materially different circumstances. This applies to recruitment practices; terms of employment; access to promotion, transfer or training; access to benefits or facilities; and dismissal or any other detriment.

The PSED requires public sector bodies to consider how inequalities can be eliminated, and good relations can be fostered between different demographics, before a decision is taken. This is called the 'General Duty' and bodies must be able to demonstrate compliance. In England, there is also a specific duty to publish information on recruitment, pay, training, grievances, disciplinaries and dismissals where the organisation has 150 employees or more. In Wales, the PSED is wider and includes the requirement to prepare and publish equality objectives; assess and monitor the impact of policies and procedures; publish information broken down according to protected characteristics; identify the causes of unequal pay and set objectives to reduce the gap; make a strategic equality plan (SEP) in consultation with those affected; and produce an annual report.

In Scotland, employers must involve representatives of protected groups, assess and review policies and procedures to ensure they meet the General Duty, publish gender pay gap information where the organisation has 20 employees or more, and publish statements on equal pay and occupational segregation of those who fall into an ethnic minority group.

Outside of legislation, the ACAS code of practice, recommendations made in official reports, and collective bargaining can also be useful tools.

Download Emma's presentation

Speakers

James Harrison, IER
Chair

Shavanah Taj, PCS
Racism at work and organising migrant workers: a PCS perspective
Download Shavannah's presentation

Laurence O'Neill, OH Parsons Solicitors
Proving Race Discrimination: the shifting burden of proof

Wanda Wyporska, The Equality Trust
Racism: recognising and responding
Download Wanda's presentation

Owen Espley, War on Want
Challenging Hierarchies, Building Solidarity: Migrant Workers & Precarious Contracts
Download Owen's presentation

Prof. Sonia McKay
A track record of a Conservative ministry of labour: undocumented migrants and sanctions
Download Sonia's presentation

Emma Game, Thompsons Solicitors
Race pay disparity and how to tackle it
Download Emma's presentation

Click here to download full programme