Siobhan Bishop: Welcome to our podcast on respect at work. In this podcast we are looking at the legal and practical issues for employers who are looking to ensure an inclusive workforce. Now this is an increasingly relevant issue for organisations, both from a talent management perspective and also risk management. Respect at work initiatives go beyond discrimination and the gender pay gap.
We will look at some of these issues and how the initiatives are trying to address them and how employers can go about tackling them effectively. I'm delighted to introduce Laura Clark and Vivienne Reeve, both associates here in our Employment and Equalities team at Wragge Lawrence Graham & Co. Firstly, I'd like to introduce Laura Clark to talk about the very topical issue of gender pay gaps and equal pay. We've seen that equal pay is a hot issue and one that affects even the most successful Hollywood actresses. While that example is somewhat unrelatable, tell us what equal pay is and also about the gender pay gap and what it means for the UK workforce.
Laura Clark: So, paying men and women differently for the same job has been unlawful for the last 40 years but equal pay and the gender pay gap are not the same thing. Rather than showing unequal pay, the gender pay gap is looking at the difference in average earnings of men and women as a percentage of men's earnings. And the Office of National Statistics has been looking at this for several years through the annual survey of hours and earnings and it's calculated the overall gender pay gap as 19.1%. Whilst this is the lowest it has been for, well since the records began, it's a significant drop from the pay gap in 1997 of 27.5%. So, I suppose, we should be encouraged to a certain extent but the pay gap is obviously still pretty large, but when you look at full time earnings, it's more encouraging, so it's reduced to 9%.
Pay gaps are also different in different professions. So, in the financial and insurance activities the pay gap is 35.2%, whereas in water supply, sewage, waste management and remediation activities, it is a mere 0.8%. So it's different in different industries and the amount of women in those industries might affect that. So, the pay gap is different depending on which way you cut it but there's obviously still some work to do and section 78 of the Equality Act 2010 gives the government the power to make regulations requiring employers to publish information relating to the pay of employees so that they can show whether, by reference to factors of whatever description is given by the government, there are differences in pay between male and female employees. So, the regulations went out to, well they had a consultation on the regulations over the summer, and we're still waiting for the results of those, but it's expected that they'll come in in the spring of next year and will affect employers with at least 250 employees. And we expect that they'll be phased in. So a bit like auto-enrolment so that they'll affect larger employers before they affect smaller employers.
For the purposes of the regulations; who is an 'employee'? Well, that'll be someone who is employed under a contract of employment, a contract of apprenticeship or a contract personally to do the work. But as we can see from a difference between how you cut the pay gap in respect of full time work, or work as a whole, how you cut the cake makes a difference on the results and we are still waiting to hear from that as a result of the consultation.
Siobhan: So we can see that there's been some improvement in the gender pay gap but it is still a serious and persistent problem in many occupations. A related issue is the extent of inclusion among women especially at the more senior levels. How far can employers go to redress the balance by positive action?
Laura: So, I think employers sometimes struggle with the extent to which they can lawfully take steps to achieve a more inclusive workforce. It's worth flagging the public sector equality duty but that's quite an extensive topic and is probably worthy of a podcast on its own. But there's a general rule permitting positive action where an employer reasonably thinks that persons with a particular protected characteristic suffer a disadvantage, connected with the characteristic, where they have different needs or are disproportionately represented.
In that case, an employer can take proportionate measure to enable or encourage persons with the relevant protected characteristic to overcome the disadvantage. So, there is not any case law on this yet but the Equality and Human Rights Commission Code has said that some evidence will need to be provided. But you do not need to do a sophisticated data analysis and the general sorts of examples, that you would expect to rely on the general rule for, are things like prayer facilities at work for religious minorities or English lessons for non-English speaking employees.
There is also a rule allowing positive action in recruitment and promotion. So, that would be where an employer reasonably thinks that persons with a protected characteristic suffer a disadvantage connected to the characteristic or participation in an activity by persons who share a protected characteristic are disproportionately low. In that case, an employer can treat person A more favourably in connection with recruitment or promotion than person B. To use it safely, an employer has to show that the successful candidate is from a protected group which is disadvantaged or underrepresented and that the candidate is "as qualified" as any other applicant. They should also have no general policy of more favourable treatment, so we are talking targets rather than quotas.
When it first came out the words "as qualified as" produced some confusion because obviously qualifications will rarely be the sole factor when making a recruitment decision. So, in January 2011, the government published some guidance and refers to candidates as being of equal merit stating that the equal merit test can take into account overall ability, competence and professional experience. So we're not looking at academic qualifications alone. The wording about 'no policy of more favourable treatment' is also a bit strange because, if you didn't have such a policy, why would you be taking steps to achieve positive treatment in the first place? But that's intended to emphasise that a blanket policy of more favourable treatment is not allowed. So, like I said, targets rather than quotas.
Siobhan: Thank you very much Laura. We are now joined by Vivienne Reeve to discuss some of the practical implications in the race for talent. What does respect at work mean to you?
Vivienne Reeve: For me, respect at work is made up of many elements across the whole employment cycle. The scene is set by the leadership of the organisation. Setting the right culture and ethos and leading by example, so the workforce can see what they're striving for and can buy in to a common goal. Then, each part of the employment cycle needs to be considered from recruitment to managing differences, promoting inclusion, encouraging new ways of working and fairness.
Siobhan: So, starting before the employment relationship even begins, how can employers improve their recruitment process to ensure that they have a diverse workforce?
Vivienne: By taking a fresh look at how they recruit and what the resulting workforce looks like. The summer 2015 CIPD research report states that many employers see recruitment as more of an art than a science. But supplying some science could shed light on engrained thought processes and open them up for the better. Many people fall into the trap of recruiting in their own image. But why is that? Well, it's easy, it's comfortable and it's often justified, by people who do it, on the basis that the applicant would 'fit' well in the organisation. But what does 'fit' mean? People with similar beliefs, who see where you want to get to. OK. Fine. But you could be missing out on a large talent pool if you're blinkered and only recruit people who sit comfortably with who you think 'fits'. Also, it undermines diversity and it may be discriminatory. If you recruit people who are similar, and all have the same goal, there is a tendency to start to think the same way. Sometimes, that's productive because you're all focused on the same objective. But it can stifle new ideas because there is no creative friction, not enough healthy challenge of ideas to move things forwards. So, I invite employers to take a fresh look at their organisation. How do they recruit and what is the make-up of the organisation?
Look at the breakdown of age, sex, ethnicity, background, is it varied or is there a pattern? Does requiring certain qualifications or requirements for experience impact certain groups unfairly? I would also invite them to consider removing certain applicant information to reduce the risk of unconscious bias. It is becoming increasingly common, I'm pleased to say, that more employers for some form of blind application. Here, at Wragges, we've already removed names from graduate recruitment to mitigate the risk of unconscious bias. Why name and why remove that? Well, if you think about it, a name indicates quite a lot of things, it can show gender, background, race, nationality and even age. I was interested to read that in the final round of blind auditions for some orchestras in the USA, the likelihood of females being selected for positions rose by 30% when their gender was taken out of the equation, which is astonishing.
Siobhan: Yes, I heard about that too, and it just shows there are significant cultural and systemic issues which can have an impact on recruitment. But what about once the employment relationship has started? What makes an employer stand out in promoting an inclusive workforce?
Vivienne: I think the message here is to think wide. So, if you're planning a change in your workforce, think about who you are applying it to, who makes up the groups that will be affected and what protected characteristics might they share? Think about sex, age, disability, religion are the most common things that may be relevant. How will it affect those different groups? Is the impact fair on them and proportionate to your aim or are there less discriminatory ways of doing it? Inclusive also means access to opportunities. So think about how work is handed out, what skills do you value, and are you giving everybody the same opportunities to develop those skills? Do you offer flexible working? Do you have a diverse group of mentors? Lastly, it is about levelling the playing field.
Don't just think about the obvious work case scenarios. Think about how you interact and how you plan things on a social level as well. So, if you're thinking about client or internal social events, think about the timing of those events, are they suitable for people with children or caring responsibilities, could you try and avoid religious festivals? Cafcass has recently won an award for their approach to this issue because they have set up a really simple sounding religious events and cultural events calendar. And that is something that you could easily put in place to avoid things conflicting with Eid or Jewish or Christian festivals. Think about the choice of event. Do you always end up doing the same thing, going for drinks at the pub, for example? Are some people left out by that? It's not to say that you cannot do things that you want to do. It's just thinking about it and thinking about whether you can mix things up because a change can bring some unexpected positive results.
Siobhan: Thank you very much indeed to Vivienne and also to Laura. We have covered a number of issues on the respect at work initiatives and how employers can address the issues that they are facing and this is an area of wide-ranging and increasing importance and if you have any questions on this topic you would like to raise, please feel free to contact either Laura or Vivienne. Thank you.