Memorandum SUBMITTED by UNION OF SHOP, DISTRIBUTIVE AND ALLIED WORKERS (USDAW) (E 58)

 

 

1. Usdaw is the UK's fourth largest Trade Union. We represent in excess of 370,000 members working primarily in retail, warehousing, home shop and food and chemical manufacturing. Just under two-thirds of our members are women. Issues of equality inform every aspect of our work.

 

2. There is much to welcome in the Equality Bill. The Bill harmonises and in many areas strengthens protection. We congratulate Government for introducing protection from discrimination for carers and strengthening existing protection for disabled people by using the Bill to reinstate the concept of disability-related discrimination, recently damaged by the Malcolm Ruling. The introduction of indirect discrimination in respect of disability will encourage employers to think more broadly about whether policies and practices put disabled workers as a group (rather than simply consider the effect on the individual worker) at a disadvantage. The measures concerning positive action and the strengthening of employment tribunal powers to make recommendations to employers are also to be welcomed and have the potential to make a real difference to our members.

 

3. In this submission we concentrate on where we believe the Bill should be strengthened in order to ensure the proposals deliver what they promise and what we think is missing from the Bill.

 

4. Usdaw's priorities are as follows:

 

· Further measures are needed to embed equality in the private sector and to address the slow rate of progress there.

 

· Further measures are required to improve the enforcement of discrimination law.

 

· We are concerned about the proposal to extend the definition of harassment currently found in the Sex Discrimination Act to others with 'protected characteristics'.

 

· There is an urgent need for equality reps to be put on a statutory footing.

 

5. We are disappointed that the Bill pays little attention to those working in the private sector. Over three quarters of the entire UK workforce is employed in the private sector. Usdaw negotiates with the biggest private sector employer of women and it is hardly controversial to suggest that any serious attempt to close gaps in equality, both in terms of pay and opportunity, must engage private sector employers. At present despite working together with employers to develop initiatives to promote equality where we can, opportunities to do so are invariably limited and as such progress has been slow and inconsistent. Usdaw is of the view that the time is now right for the public sector equality duty to be extended to the private sector.

 

6. As we made clear in our original submission to the Discrimination Law Review, we are not opposed to the idea of a voluntary equality standard, although this early proposal appears not to have found its way into the final Bill. Accreditation schemes can help to influence workplace culture where they are credible and meaningful. However any such programmes need checks, measures and regular reviews in place in order to ensure that employers act to guarantee that equality initiatives reach all parts of the business and impact on workers at all grades and levels, not just those at the top. There is always the danger that a company draws up excellent policies and practices that look very good on paper but when it comes down to it they fail to make any difference to workers on the shop floor. Unions have an important part to play in the assessment process as we represent the voice and views of staff. Having said this, the voluntary approach often is not sufficient to ensure real progress. In our experience such schemes are only of interest to those employers who are already on the ball when it comes to promoting equality and diversity in their business. It is difficult to imagine employers with poor equality track records (those who precisely such programmes need to reach) engaging voluntarily with such a programme.

 

7. We are disappointed that the Bill only goes so far as to propose a power to require reporting on the gender pay gap by employers with 250 or more employees and that such a power will not be used until 2013 at the earliest and only then if sufficient progress on reporting has not been made. As we said in our original submission to the Discrimination law review the light touch approach has had little or no effect on the gender pay gap. We repeat here what we said then, namely that the problem is partly one of motivation. For the majority of employers unless they already know that they have a problem with discrimination in pay systems they have very little incentive for conducting a review. There may be very few, if any, visible signs that the company has a problem with pay discrimination. There may be a high staff turnover or a lack of motivation amongst women staff but many front line managers may be too busy to notice poor motivation or see high turnover as part of operating in a sector which historically has high levels of staff turnover. In fact we believe many employers have real incentives not to conduct pay audits. Some of the employers with whom we work, large and small, tell us they view pay reviews as being time consuming and a diversion from the real job of growing the business. Worst of all, employers feel that conducting a review is tantamount to admitting they have pay systems in place that are discriminatory.

 

8. There is extensive evidence that the voluntary approach is not working. In 2004 the Government set a PSA target that by April 2008, 45% of all large firms should have undertaken pay reviews¹. In 2008 only 17% of all firms and 32% of large firms (with more than 500 employees) had actually completed a review with a further 5% of all firms and 15% of large firms having a review in process. Over three quarters of organisations (76%) had no plans to undertake an equal pay review². In short equal pay reviews are still not perceived to be within the range of 'normal' for most employers. Compared to filing tax returns or drawing up staff rotas, equal pay reviews are simply not on the radar. Usdaw repeats its call for employers to be placed under a positive duty to conduct equal pay audits.

 

9. We very much welcome the proposals in the Bill to enable employers to take positive action to address under-representation at all levels and grades in company structures. The retail sector, for example, is still highly segregated with women dominating the shop floor but barely visible in middle or senior managerial roles. Giving employers the option to appoint a member of an under-represented group with a protected characteristic may go some way to help redress the balance, however a recent survey conducted by law firm DLA Piper³ confirms that employers are very wary of taking this action. Given that taking positive action is encouraged in the Bill but is by no means compulsory, employers will need to be persuaded to make use of this clause. As it stands many employers may find admitting that two candidates are equally qualified is too risky and prefer instead to continue the practice of finding some reason for concluding one candidate is better qualified than the other. More needs to be done to encourage employers to adopt this approach. As we said in our original submission to the Discrimination Law Review, given the bad press this section of the Bill has attracted and the way in which positive action measures are viewed more generally, clear guidance needs to be published reinforcing positive action as a legitimate and essential tool in the pursuit of equality. Employers need to understand how they might use this measure and the business benefits of doing so need to be clearly spelt out. Concrete examples of where business has used positive action to good effect can be persuasive.

¹Equal Pay Reviews Survey, IFF Research for Equal Opportunities Commission, 2006.

²Equal Pay Reviews Survey 2008, Equality and Human Rights Commission.

³Equality Bill: Justice For All? Available at www.dlapiper.com/equalitybill

 

10. We welcome the proposal to extend the power of tribunals to enable them to make recommendations that employers amend their policies and practices where there has been a finding of discrimination. We however, echo concerns expressed by others that the effectiveness of such a clause is greatly reduced by the absence of a mechanism for monitoring employer action to implement any such recommendations. Trade Unions have a role to play here, as does the Equality and Human Rights Commission. Publishing recommendations may help to ensure employers are held accountable as would a requirement compelling an employer to report back at regular intervals on any action taken.

 

11. We are disappointed that representative actions are not included in the Bill. We are strongly of the view that representative actions are a vital part of ensuring access to justice, and that furthermore they may act as a powerful incentive to employers and service providers to get their policies and practices right in the first place to ensure they deliver for women on the shop floor.

 

12. We are very concerned that the Bill applied the 'three-strike' rule now found in the Sex Discrimination Act to third-party harassment in respect of all other protected characteristics. Such a rule leaves workers vulnerable to repeated harassment and potentially lets employers off the hook in terms of effectively dealing with it. In order to prevent a culture where harassment and intimidation is allowed to flourish employers must act quickly. The 'three-strike' rule undermines this approach, for example:

 

· A black driver delivers goods to a store where he is subjected to racist abuse. He returns to the distribution site and complains about it to his employer, who does nothing. He is instructed to return to that store a second time when he is again abused. He complains to his employer who chooses not to send him back but sends another black driver, who experiences abuse. The three-strike rule permits the employer to act in this way with impunity. Nether driver can seek legal redress as neither has been subject to racist harassment on at least two other occasions.

 

· A female checkout operator is subjected to sexist abuse by a customer. She complains to her manager who does nothing. The same customer returns to the store and acts in the same way. The manager does nothing. The next time the customer enters the store the manager re-directs the customer to another female checkout operator (of the 12 operators in store, only two are men) who is abused in the same way. Neither can bring an action because they have not been subject to sexist harassment on at least two other occasions.

 

As the above examples illustrate, at best the three-strike rule is unhelpful. At worst it
condones harassment and leaves those who have experienced it without legal redress.

 

13. Usdaw is currently in the process of putting in place a framework for 'equality champions'. We are however, concerned that the take-up and effectiveness of this role is severely damaged by the absence of statutory rights for equality reps. We echo the TUC's call for statutory recognition and rights to paid time off to undertake the training and duties related to the role.

 

June 2009