Memorandum from the Equality and Human
Rights Commission
1. EQUALITY AND
HUMAN RIGHTS
COMMISSION
1.1 This written submission sets out the
evidence of the Equality and Human Rights Commission (the Commission)
in relation to recruitment and retention of personnel in the Armed
Forces.
1.2 The Commission was established on 1st
October 2007 under the Equality Act 2006. It champions equality
and human rights for all, works to eliminate discrimination, reduce
inequality, protect human rights and build good relations, and
to ensure that everyone has a fair chance to participate in society.
1.3 The new Commission brings together the
work of the three previous equality commissions, the Commission
for Racial Equality (CRE), the Disability Rights Commission (DRC)
and the Equal Opportunities Commission (EOC). The Commission's
remit now covers race, disability, gender, gender reassignment,
age, sexual orientation, religion or belief and the application
of human rights. Working across Britain, the Commission has offices
in Manchester, London, Cardiff, Glasgow and Edinburgh.
2. THE COMMISSION'S
WORK WITH
THE ARMED
FORCES AND
THE MOD
2.1 The Commission welcomes the opportunity
to provide evidence to the Committee on the issue of recruitment
and retention in the Armed Forces. The Commission does note and
echo the Committee's concern that the Ministry of Defence (MoD)
failed to achieve most of its diversity targets, particularly
the recruitment and retention of people from ethnic minority communities.
With that in mind the Commission does have concerns that limiting
the focus of this Inquiry to the Armed Forces may be to take too
narrow an approach. The Commission believes that there needs to
be a holistic strategy which ensures fair recruitment across the
board and an environment which welcomes all. For example tackling
issues of retention for all strands should enable the MoD to create
the diverse culture which is needed to meet its diversity targets.
2.2 The armed forces and the MoD are all
subject to the statutory duties to eliminate discrimination and
to promote equality on the grounds of race, gender and disability.[13]
The Commission would expect measures to improve the recruitment
and retention of ethnic minority servicemen and women to figure
prominently in the current and future equality priorities of the
MoD and the individual armed forces, under the race and gender
duties. The statutory equality duties require proportionate action
to promote equality, and the armed forces and the MoD will have
to address these significant issues if they are to meet their
statutory legal obligations
2.3 The Commission's broad remit provides
an opportunity to approach issues in a more co-ordinated way than
was possible for the previous single issue equality commissions.
However the evidence set out below is divided into separate sections
relating to race (Section 3); gender (section 4); disability (section
5); sexual orientation, religion or belief and age (section 6).
2.4 There are two reasons for dividing the
Commission's evidence in this way:
— in practice, the work currently
done by the Commission in relation to the Armed Forces derives
from and continues the work of the three predecessor commissions
(and in particular that of the CRE and EOC);
— though some issues, for example
harassment, are common to all, others may have a greater or different
impact on service personnel or potential service personnel who
are, for example, of a particular ethnicity or gender.
3. RECRUITMENT
AND RETENTION
OF ETHNIC
MINORITY PERSONNEL
3.1 The terms of reference of the Committee's
Inquiry refer specifically to the need to identify the factors
hampering recruitment of ethnic minority personnel. This section
of the Commission's submission to the Inquiry is divided into
two parts. The first part of this section (3.2 to 3.15) briefly
summarises the CRE's work with the Armed Forces and MoD since
2001, when the Committee last heard evidence on this subject.
The second part of this section (3.16 onwards) sets out the Commission's
views on the issues affecting the recruitment and retention of
ethnic minority personnel in the Armed Forces, drawing on the
experience and knowledge gained by the CRE in its work with the
Armed Forces and the MoD.
The CRE's work with the Armed Forces since 2001
3.2 In 1998, the CRE entered into a five
year partnership agreement with the MoD and Armed Forces. This
was as a result of a Formal Investigation into the Household Cavalry,
which found evidence of direct and indirect racial discrimination
in recruitment and selection of officers and soldiers and postings
of other corps and regiments; racial harassment; and instructions
or inducements to discriminate.
3.3 The terms of the partnership agreement
were that the MoD would:
— improve recruitment, career
progression and retention levels for ethnic minorities;
— aim to bring about cultural
change through eliminating discrimination and harassment; and
— ensure leadership and corporate
accountability to meet the terms of the agreement.
3.4 The Armed Forces reported annually to
the Commission on performance. This was supported by regular detailed
reports to and discussions with the CRE.
3.5 During the life of the first agreement,
the CRE had concerns about the persistent failure of the tri-services
to increase representation of ethnic minority nationals. The CRE
was also concerned about the disproportionate rates of ethnic
minority personnel leaving the services through premature voluntary
release and dismissal; and their career progression. The services'
explanations for these failings were:
— difficulties with the IT system,
which was unable to produce figures on selection;
— disproportionate drop-out rates
for ethnic minority applicants, who tended not to turn up for
testing (31% ethnic minority applicants compared to 20% white
applicants);
— disproportionate failure rates
in recruitment tests for ethnic minority applicants; and
— disproportionate premature voluntary
release (PVR) rates of ethnic minority ethnic personnel—which
showed retention was an issue.
3.6 The CRE considered that the services
needed to analyse the reasons for the disproportionality in drop
out rates, test failures and PVR rates to enable them to identify
obstacles to ethnic minority applicants in recruitment, retention
and career progression.
3.7 In 2003, following the expiration of
the first partnership agreement, the CRE and MoD entered into
a second agreement for a three year period. The new agreement
had a specific purpose "to achieve further progress with
measurable outcomes in recruitment, retention, career progression,
cultural change, complaints procedures and leadership and accountability".
The agreement set out the outcomes which the CRE expected from
the services (see appendix 1).[14]
3.8 As part of the arrangement, the MoD
provided documentary information annually to the CRE on progress
against the expected outcomes. The CRE and the MoD met three times
a year to discuss progress and actions for achieving outcomes.
3.9 In the three years of the agreement,
the CRE, while acknowledging the steady progress made and commitment
of the services, continued to be concerned about recruitment and
retention of ethnic minorities. The Army appeared to have made
progress in recruiting at lower levels but this was not repeated
at officer level. The RAF and RN however, consistently had difficulty
achieving the agreed outcomes for recruitment. For example, the
target goal agreed by the CRE and the MoD was for each service
to increase representation by 0.5% year on year. The recruitment
goals for the RAF during the life of the agreement (2003—2006)
were 2.6%, 3.1% and 3.6%. They achieved 1.8%, 1.7%, and 1.5%.
The goals for the RN were 2.5%, 3% and 3.5%. They achieved 2.1%,
2.3% and 2.0%.
3.10 The CRE was particularly concerned
about the achievements of the RAF and RN on recruitment. It was
aware of a number of initiatives which both services were engaged
in that were producing results but at a very slow pace. However,
the problem was exacerbated when all forces were required to reduce
their trained strength: the RAF had the highest reduction rate—8,000
until 2008, which it sought to achieve by restricting its intake.
3.11 The culture of an organisation is significant
to how individuals see opportunities within that organisation.
In the case of the Armed Forces, there was a perceived—real
or actual—culture of racial discrimination and harassment
in many areas such as career progression and day to day working
practices. Continuous General Attitude surveys for all
services, however, showed that perceptions of harassment and discrimination
were greater than the reality. Lack of corporate commitment to
equality also seemed to allow racial discrimination and harassment
to pervade. Leadership and Corporate accountability was a very
important term of the agreement for the CRE. It is notable, that
with clear corporate commitment to equality that the services
seemed to make relatively significant progress in all areas covered
by the agreement.
3.12 Monitoring equality impact and outcomes
is also highly important for identifying trends and patterns of
inequality. Throughout the working relationship the services consistently
had difficulty monitoring and capturing data on equality. On numerous
occasions the services could not produce the data necessary to
determine how successful they were at achieving the expected outcomes
in the agreement.
3.13 The Commission notes that there did
not seem to be any discernible improvements by the Armed Forces
in recruiting ethnic minorities during the first and second cycle
of the relationship.
3.14 The working relationship between the
MoD and the CRE in relation to the second agreement came to an
end in 2006. Both parties were in negotiations for a new arrangement
but due to the closure of the CRE this was never finalised.
3.15 However, throughout 2007, the CRE's
enforcement team were also making enquires with the MoD in an
attempt to establish the extent to which the MoD as a whole, including
the Armed Forces, was meeting the specific race equality duty
relating to employee monitoring[15]
(known as "the employment duty"). The employment duty
forms part of the MoD's obligations under the race equality duty
and requires it to carry out monitoring of employees and job applicants
by racial group. This work followed the findings of the CRE's
Enforcement and Monitoring Project, which suggested that the MoD
(as well as several other central Government departments) was
not fully meeting the requirements of the employment duty. The
Commission is continuing these discussions and some of the issues
arising are set out in the following paragraphs.
Factors affecting recruitment and retention of
ethnic minority personnel in the Armed Forces
3.16 The Commission considers, drawing on
the work of the CRE, that some of the following factors might
hamper recruitment to the services:
— Perception of discrimination
and harassment within the services—continuous attitude surveys
carried out by the services always showed that the perception
of discrimination and harassment was far higher than the reality.
Ethnic minority personnel often had a greater perception of discrimination
and harassment compared to white personnel.
— Lack of robust monitoring data
to identify specific problem areas eg what might be the obstacles
for different services in recruiting? The MoD often failed to
provide data which would be useful for analysing discriminatory
impact. (see paragraph 3.18 below)
— Many of the positive action
initiatives engaged in by the services seem to be slow burn and
would not be expected to lead to sustainable change in the short
to medium term. For example, all services undertake outreach programmes
working with gatekeepers and local communities to raise awareness
of the services. However, the Commission considers that such programmes
would take time to build confidence in the local community that
the services could be a career of choice.
— Tendency for the services to
see themselves as monolithic thus relying on the same methods
to deal with under-representation but not necessarily recognising
their differences in terms of for example the types of work undertaken
by each service and entry requirements.
External factors affecting recruitment and retention
3.17 The Commission is also aware that there
are a number of external factors which could impact on the Armed
Forces ability to recruit. These include for example:
— Government cuts to all services
especially the RAF;
— Public Service Agreement targets
on equality means that many public services are seeking to attract
ethnic minorities to work for them, providing increasing competition
for the Armed Forces efforts to recruit.[16]
3.18 Some of the factors mentioned above
are also relevant to matters of retention eg perception, inadequate
monitoring and data collection and positive action programmes
which are slow burn. It should be noted that according to the
information made available to the CRE that retention rates for
ethnic minorities were comparable to white personnel. However,
the caveat to this is that the inadequate monitoring and data
collection by the services meant it was not possible to determine
whether the rates were truly comparable. The CRE consistently
asked that data systems should be given priority.
3.19 The Commission believes that a more
rigorous and sophisticated approach to the collection and analysis
of data about employee ethnicity could lead to better informed
decisions about the steps needed to improve recruitment and retention
in the Armed Forces. It would also ensure that the MoD complies
with the requirements of the employment duty. The employee monitoring
data provided by the MoD for 2005-06[17]
(which appeared to include the Armed Forces) was deficient in
a number of areas, for example.
3.19.1 The MoD did not consistently collect
data by racial group. For some areas 14 categories were used but
for other areas only three categories ("ethnic minority",
"white" and "unknown") were used.
3.19.2 Overall, 15% of staff were recorded
as "unknown", a proportion that the CRE regarded as
significant and making it difficult to conduct meaningful analysis
of the rest of the data. Of further concern was the high level
of unknowns in particular areas, for example the proportion of
leavers whose ethnic group was unknown was 34%. Such gaps in data
can make analysis very difficult or render it meaningless.
3.19.3 Applications for employment and promotion
are monitored. However, there is no measure of the numbers who
were successful in their application for promotion, by ethnic
group.
3.19.4 Data on staff that cease employment
is not broken down by reason for leaving.
3.20 The MoD has indicated to the Commission
that it has put in place new monitoring arrangements and that
the report for 2006-07 will be an improvement on previous reports.
This is a welcome development that we hope will include improvements
in monitoring for the Armed Forces.
4. GENDER
4.1 The terms of reference of the Committee's
Inquiry do not refer specifically to the need to identify the
factors hampering recruitment and/or retention of women in the
Armed Forces. However the EOC was concerned about these matters,
particularly about retention rates for female service personnel.
This section of the Commission's evidence to the Inquiry is divided
into two parts. The first part of this section (4.2 to 4.4) briefly
summarises the EOC's work with the Armed Forces and MoD since
2001, when the Committee last heard evidence about this. The second
part of this section sets out the Commission's views on the issues
affecting the recruitment and retention of women in the Armed
Forces, drawing on the experience and knowledge gained by the
EOC in its work with the Armed Forces.
The EOC's work with the Armed Forces since 2001
4.2 Between 2001 and the end of 2002 the
EOC held tri-service meetings with the Armed Forces and MoD at
intervals of more or less six months. Those meetings discussed
issues of concern to the EOC relating to retention and promotion
of women in the Armed Forces, focussing in particular on the issues
of combat effectiveness; flexible working; harassment and poor
complaint handling. More informal contact at staff level continued
after 2002, usually relating to specific issues such as the impact
of sex discrimination law on fitness tests.
4.3 However, increasing concern about the
number of servicewomen contacting the EOC for advice and/or assistance
about sexual harassment resulted in the EOC in June 2005 launching
and immediately suspending a Formal Investigation into Sexual
Harassment of Servicewomen in the Armed Forces. The suspension
was on terms set out in a three-year agreement between the EOC
and the MoD (the FI Agreement).[18]
The agreement committed the Armed Forces and MoD to a three phase
process, the third phase being the implementation of an action
plan derived from diagnostic and planning work in phases one and
two.
4.4 The FI Agreement is due to end in June
2008 and the Commission will shortly be assessing the Armed Forces'
compliance with the terms of that agreement and deciding what
next steps are appropriate. Since the Formal Investigation is
ongoing, though suspended, legal restrictions apply to the information
received in relation to the Formal Investigation which can be
disclosed to third parties. The information contained in this
written evidence in relation to the outcomes of the FI Agreement
is therefore confined to information which is already in the public
domain.
Factors affecting recruitment and retention of
women in the Armed Forces
4.5 As will be apparent from the EOC's decision
to launch a formal investigation into sexual harassment of service
women in the Armed Forces the impact of harassment on women in
the Armed Forces was viewed by the EOC as very significant. The
Commission believes that the prevalence of sexual harassment does
have a direct impact on the retention of women in the Armed Forces
and indirectly on their recruitment. The most obvious and direct
impact is where a service woman leaves the service as a result
of suffering harassment. The indirect impact is on the perception
of the Armed Forces by female potential recruits.
4.6 Under the terms of the FI Agreement
there have now been two surveys of service women's experiences
of and attitude towards sexual harassment (reporting in 2005 and
2007 respectively) and a survey of service men's attitudes and
experiences of sexual harassment (reporting in 2007). All the
survey reports are available from the MoD website.[19]
4.7 Both servicewomen's surveys suggest
that a significant proportion of servicewomen have experienced
some form of sexual harassment, with the 2007 survey reporting
that 11% of servicewomen surveyed had experienced a particularly
upsetting incident of sexual harassment in the preceding 12 months.[20]
4.8 While the Commission cannot yet comment
on the outcome of the FI Agreement it does acknowledge the efforts
made by the Armed Forces to implement the action plan set out
at Phase 3 of the FI Agreement.[21]
The Commission understands that the Armed Forces acknowledge that
the steps taken to date will not in themselves "solve"
the problem of sexual harassment in the Armed Forces, but are
intended to put in place the conditions for success in addressing
the issue. That in term is a step towards the MoD's vision of
an "environment free from bullying and harassment, where
being a member of the Armed Forces brings with it the reality
of being treated fairly and with dignity and respect".
The role of women in the Armed Forces and combat
effectiveness
4.9 The Commission acknowledges (as did
the EOC) that nothing should be done to jeopardise the combat
effectiveness of the Armed Forces. That principle is recognised
by s85(4) of the Sex Discrimination Act 1975 (SDA) which provided
that nothing in the SDA should render unlawful an act done for
the purposes of ensuring the combat effectiveness of the Armed
Forces.
4.10 The EOC in its engagement meetings
with the Armed Forces prior to the launch of the formal investigation
in 2005 did press the Armed Forces to ensure that any restriction
placed on women's roles in the Armed Forces was strictly necessary
to ensure combat effectiveness. The EOC's particular concern was
that such restrictions should not be based on stereotypical views
of the abilities of women to cope with pressures of frontline
fighting or notions of "societal attitudes" being unwilling
to accept a notion of women closing and killing with the enemy.
4.11 The Commission acknowledges that the
majority of roles within the Armed Forces are open to women. Despite
restrictions on roles involving "closing and killing"
with the enemy endorsed by the 2002 report on Women in the Armed
Forces[22]
women do play a frontline role in the Armed Forces. A vivid illustration
of this was the award of the Military Cross to Private Michelle
Norris in March 2007, the first time a Military Cross has been
awarded to a woman.
4.12 However, the Commission believes it
is important to constantly re-evaluate and vigorously test any
restrictions on the role of women in the Armed Forces. The report
of the 2007 Servicemen's survey identified a need to address stereotypical
views of the relative qualities of servicemen and servicewomen.[23]
The report suggested that one means of doing this would be to
publicise the contribution of servicewomen on the frontline. The
Commission believes that the report finding also points to a need
for the Armed Forces to regularly re-examine restrictions to ensure
they are not themselves rooted in stereotyped views of women's
capabilities.
4.13 Section 10.2 of the same report notes
the evidence that greater experience of working alongside women
"is linked with more positive attitudes towards working with
women and less agreement that the stereotypical and biological
differences between men and women pose challenges to mixed teams".
This underlines the "virtuous circle" that can be created
by not only increasing the number of women recruited but ensuring
that they work alongside servicemen. The findings suggest that
the more this happens, the better the attitude of service men
towards service women. This will, in the Commission's view, contribute
towards a decrease in the level of sexual harassment, which should
in turn feed into encouraging more potential female recruits to
apply to join the Armed Forces.
Flexible working
4.14 The Commission acknowledges that the
Armed Forces have made great strides since the days when servicewomen
were forced to leave the Forces when they become pregnant. The
Commission acknowledges that the Armed Services have taken steps
to ensure that servicewomen return to service after maternity
leave, for example, by restricting their deployment for the period
immediately after their return.
4.15 One area of concern identified by the
EOC and raised in the tri-service meetings in the period 2000-2002,
however, was the pressure faced by service women with families
in reconciling the demands of their role and service personnel
with their role as mothers. The statutory right to request flexible
working does not apply to the Armed Forces,[24]
although in the tri-service meetings with the EOC the MoD indicated
that it would approach any such requests in the spirit of that
legislation.
4.16 Flexible working was not within the
scope of the FI Agreement and the EOC did not engage directly
with the Armed Forces about this issue after the discussion at
the tri-service meetings. However, flexible working was the second
most common issue raised by callers to the EOC's Helpline in the
period from January 2005 until the end of September 2007. Whilst
stressing that operational effectiveness is obviously the priority,
the Commission would urge the Armed Forces to scrutinise rigorously
any policies which prevent flexible working to ensure that a requirement
to work a certain work-pattern is necessary to ensure operational
effectiveness rather than being rooted in the belief that service
in the Armed Forces is of its very nature incompatible with flexible
working.
5. DISABILITY
5.1 Employment in the Armed Forces is specifically
excluded from the scope of Part II (the employment provisions)
of the Disability Discrimination Act (DDA) by s.64(7) of that
Act. The Commission believes that this blanket exemption is unnecessary
and that the Act provides sufficient scope for sensible application
in the Armed Forces, allowing justification of less favourable
treatment where, for example, health and safety might be compromised.
5.2 The exemption mentioned in 5.1 above
does not mean that disability-related issues are irrelevant, particularly
given the need to retain and redeploy highly trained and skilled
service personnel who have become disabled in the course of their
duties. Equally, members of the Armed Forces may have partners
or children who are disabled so for example, the design and maintenance
of housing is highly relevant.
5.3 The MoD and Armed Forces are not exempt
from the other provisions of the DDA. In particular, the DDA applies
to the MoD in relation to civilian employees and applies to the
MoD as a public authority and the Armed Forces as service providers
and managers of premises.
6. SEXUAL ORIENTATION,
RELIGION OR
BELIEF AND
AGE
6.1 The Commission has more limited information
about the factors currently affecting the recruitment and retention
in the Armed Forces of service personnel who are homosexual, of
particular religions or beliefs or whose age differs from that
of other service personnel or potential recruits. The main reasons
for this limited information are:
6.1.1 Discrimination in employment on these
grounds has been unlawful only since 2003 in the case of sexual
orientation and religion or belief, and 2006 in the case of age.
As yet there is not a body of case law equivalent to that in relation
to race and gender in particular which would assist in highlighting
particular issues of concern.
6.1.2 Prior to the creation of the Commission
on 1 October 2007, there was no equivalent statutory body with
a duty to ensure the elimination of discrimination on the grounds
of sexual orientation, religion or belief or age. The Commission
has not inherited a body of knowledge and experience such as it
did from the EOC, CRE and DRC in relation to gender, race and
disability.
6.1.3 In the case of sexual orientation
discrimination, the Armed Forces' prior policy of requiring homosexual
service personnel to leave the Forces meant that there was no
need for the Forces to seek to identify and address the issues
facing gay men and lesbians in the Armed Forces.
6.2 Until further work is done it is difficult
for the Commission to provide categorical evidence on the full
range of issues which may impact in particular on service personnel
or potential recruits who are homosexual, of particular religions
or beliefs or whose age differs from that of other service personnel
or potential recruits
6.3 The Commission strongly believes, however,
that the issue of harassment is one which affects gay men and
lesbians in the Armed Forces. That view is derived both from information
provided by individuals who have contacted the Commission and
its predecessor bodies for assistance; cases in the public domain,
such as the high-profile case of Lance Bombardier Kerry Fletcher;
and information included in the 2007 Servicewomen's Survey.[25]
6.4 Although the situation is less clear
cut, the Commission and its predecessor bodies are also aware
of cases of harassment which appear to be on grounds of religion.
31 March 2008
13 although for disability, not in relation to employment
in the armed forces. Back
14
Not printed. Back
15
Article 5, Race Relations Act 1976 (Statutory Duties) Order 2001.
For further explanation see the information on the CRE's website
via the Commission's website at: http://www.equalityhumanrights.com/en/forbusinessesandorganisation/publicauthorities/raceequalityduty/Pages/Specificdutiesemploymentduty.aspx Back
16
For example, many Police Forces and Fire Brigades are increasingly
using positive action such as targeted open days to encourage
applications from black and ethnic minority people. Back
17
The monitoring report for 2006/07 has not yet been provided to
the Commission. Back
18
Available at: http://www.mod.uk/NR/rdonlyres/13856EA1-1D13-4872-A5EF-797D8EA3E025/0/mod_eoc_agreement.pdf Back
19
The surveys are available at: http://www.mod.uk/DefenceInternet/AboutDefence/CorporatePublications/Personnel
Publications/EqualityAndDiversity/Gender/ Back
20
See the table at page iv of the 2007 report and paras 12.2.3.7.
This compares with 17% in the 2005 survey but as the 2007 report
notes, changes in the survey questions mean it is not possible
to weigh the significance of this apparent decrease. Back
21
The FI Agreement and the Phase 3 action Plan are available at:
http://www.mod.uk/NR/rdonlyres/1B43BA95-6D58-4DA0-8E59-57C1B2734ABB/0/EOC_phase_3-action_plan.pdf Back
22
http://www.mod.uk/NR/rdonlyres/A9925990-82C2-420F-AB04-7003768CEC02/0/womenaf_fullreport.pdf Back
23
see in particular section 10.2 of the survey report. Back
24
See s.192 Employment Rights Act 1996 which omits the provisions
in that act which apply to flexible working (part VIIIA) from
the list of provisions applying to service in the Armed Forces. Back
25
An example is cited at paras 12.2.3.7 of the 2007 Servicewomen's
report. Back
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