Administración de Recursos Humanos

Gower Handbook of
Discrimination at Work
Edited by Tessa Wright and Hazel Conley

Gower Handbook of Discrimination at Work
This page has been left blank intentionally
Gower Handbook of
Discrimination
at Work
Edited by
Tessa Wright
London Metropolitan University, UK
and
Hazel Conley
Queen Mary University of London, UK
© Tessa Wright and Hazel Conley and the contributors 2011
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording
or otherwise without the prior permission of the publisher.
Published by
Gower Publishing Limited
Wey Court East
Union Road
Farnham
Surrey
GU9 7PT
England
Gower Publishing Company

Suite 420
101 Cherry Street
Burlington
VT 05401-4405
USA
www.gowerpublishing.com
Tessa Wright and Hazel Conley have asserted their moral rights under the Copyright, Designs
and Patents Act, 1988, to be identified as the editors of this work.
British Library Cataloguing in Publication Data

Gower handbook of discrimination at work.
1. Discrimination in employment – Great Britain. 2. Diversity in the workplace – Great
Britain. 3. Discrimination in employment – Law and legislation – Great Britain.
I. Handbook of discrimination at work II. Wright, Tessa. III. Conley, Hazel.
658.3'008-dc22
Library of Congress Cataloging-in-Publication Data

Wright, Tessa.
Gower handbook of discrimination at work / Tessa Wright and Hazel Conley.
p. cm.
Includes index.
ISBN 978-0-566-08898-8 (hardback : alk. paper) – ISBN 978-1-4094-2629-5 (ebook)
1. Discrimination in employment – Law and legislation – Great Britain. I. Conley, Hazel.
II. Title. III. Title: Handbook of discrimination at work.
KD3102.W75 2011
344.4101'133 – dc22
2010046912
ISBN 9780566088988 (hbk)

ISBN 9781409426295 (ebk) II
Contents
List of Figures ix
List of Tables xi
About the Editors xiii
Notes on Contributors xv
Acknowledgementsxxi
List of Abbreviations xxiii
Introduction1
Hazel Conley and Tessa Wright
PART I LEGal FraMEWOrK aND tHE LiMitS Of tHE LaW 9
Chapter 1 A Right Not to be Discriminated Against: The Origins and

Evolution of Discrimination Law 11
Sonia McKay
Chapter 2 The Road to Equality: Legislating for Change? 23

Hazel Conley
Chapter 3 Dignity at Work: The Law’s Engagement with Bullying and

Harassment in the Workplace 33
Jackie Jones
Chapter 4 The Law Relating to Pregnancy and Maternity Leave 47

Grace James
PART II DiSCriMiNatiON(S) iN tHE WOrKplaCE:

GENDEr aND SEXUalitY 57
Chapter 5 Model Employment? The Challenges Ahead for Public Sector

Employers and Unions in Tackling the Gender Pay Gap 59
Carole Thornley and Dan Coffey
Chapter 6 Pay Inequality in Manufacturing Industry:

The Case of the Printing Industry 69
Tricia Dawson
vi G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t Wo r k
Chapter 7 Career Obstacles, Discrimination and Women’s Independent Networks:

Evidence from the UK and Germany 83
Nicole Avdelidou-Fischer
Chapter 8 Creating Inclusive Organisations: What do Lesbian, Gay and Bisexual

Employees in the Private Sector Think Makes a Difference? 97
Fiona Colgan and Aidan McKearney
Race, Migration and Religion 111
Chapter 9 The Racialised Organisation: The Experiences of Black Managers 113

Tracie Jolliff
Chapter 10 The Role of Trade Unions in Fighting Racial Discrimination 129

Wilf Sullivan
Chapter 11 Migration and Work: Discrimination Obligatory? 139

Nick Clark
Chapter 12 Management Handling of Religion and Belief in the Workplace:

Challenges and Solutions 155
Martin Mitchell, Chris Creegan and Sarah Dickens
Disability 171
Chapter 13 Understanding Workplace Adjustments for Disabled Employees:

The Law and Good Practice 173
Deborah Foster
Chapter 14 Mental Health and Discrimination:

A Short Guide to Being Unreasonable 185
Alex Tambourides
Age 201
Chapter 15 Demographic Change and Implications for

Workforce Ageing in Europe 203
Andrea Winkelmann-Gleed
Chapter 16 Ageism, Solicitors and Female Mature Entrants:

An Awkward Combination 219
Alexandrine Guyard-Nedelec
Chapter 17 The ‘Duty to Consider’: How Employers are Managing Requests from
Employees to Delay Retirement 235
Matt Flynn
Contents vii
PART III Equality – New Approaches 247
Chapter 18 Measures to Tackle Disadvantage and Discrimination in

Access to Employment: The Role of Employers 249
Anna Paraskevopoulou and Monika Beutel
Chapter 19 ‘Eyes and Ears’ in the Workplace: The Developing Role of

Equality Representatives 265
Sian Moore
Chapter 20 Strategies for Equality: The Norwegian Experience of the Use of

Gender Quotas in the Private Sector 279
Cathrine Seierstad
Chapter 21 Tackling Gender Segregation in the UK Transport and

Construction Sectors: Recent Initiatives and Procurement Strategies 293
Tessa Wright
Index309
List of Figures
Figure 11.1 Percentage of UK employees not born in UK 141

Figure 18.1 A model of critical success factors: tackling disadvantage,
disengagement and discrimination 260
List of Tables
Table 1.1 Outcome of tribunal claims, 2007–2008 20

Table 3.1 Average employment tribunal costs to employers 43
Table 6.1 Gross pay per week for full time workers – percentages by sex 73
Table 6.2 The sexual division of labour by department 76
Table 6.3 The sexual division of labour within each department 76
Table 11.1 Percent of workforce in main industrial sectors by country of birth 142
Table 16.1 Age distribution of solicitors admitted to the Roll in 2006–2007 223
Table 20.1 Affirmative action strategies in place in Norway 282
Table 20.2 Human development report, equality ranking 284
Table 20.3 The requirement for representation of both sexes on public
limited companies boards of directors by the gender
representation law in Norway 285
Table 20.4 Women’s representation on boards 287
Table 20.5 Share of women as chairs on boards 287
About the Editors
Tessa Wright
Tessa Wright has written and researched in the areas of discrimination and equality at
work for many years. During her 12 years as an equality researcher and editor at the
Labour Research Department, she wrote and researched widely on the discrimination
faced by women, ethnic minorities, disabled workers and lesbians and gay men in the
workplace, as well as trade union responses. Since moving to the Working Lives Research
Institute at London Metropolitan University, Tessa has continued to develop her interest
in effective measures to combat discrimination at work, working on a range of European
and UK research projects. She is completing a PhD at the Centre for Research in Equality
and Diversity, Queen Mary, University of London on the experiences of women working
in non-traditionally female occupations, examining the intersections of gender, sexuality
and class.
Hazel Conley
Hazel Conley started her working life as a bank clerk, where she quickly noted gendered
and racialised workplace segregation along with the subtle and not so subtle discrimination
that followed. In 1989 Hazel decided to enter higher education. It was here that she
began to understand the theories and concepts that sought to explain discrimination at
work. She has researched and published extensively, particularly on the ways in which
labour market segmentation, especially in relation to non-standard forms of work, can
result in discrimination and disadvantage. Her recent work focuses on the discrimination
and equality legislation, examining its strengths and limitations as a tool for fighting
discrimination.
Notes on Contributors
Nicole Avdelidou-Fischer
Nicole Avdelidou-Fischer earned her PhD from the Centre for Research in Equality and
Diversity at Queen Mary, University of London. Having worked for over a decade in
German and British corporations, Nicole has witnessed and personally experienced
patriarchal structures that create barriers for women to access powerful coalitions. Familiar
with the topic of networking and inspired by gaps in the academic literature, Nicole
embarked upon an investigation of independent networks for business and professional
women at the crossroads of feminist and social movement theories.
Monika Beutel
Monika Beutel is a freelance consultant and trainer for the public and third sectors. Her
career has been mostly in universities, as a sociology lecturer and academic manager. She
has a range of interests, including women’s entrepreneurship and adult education. She
coordinated a London Learning Partnership as well as ‘Disadvantage, Disengagement and
Discrimination in London’, a Working Lives Research Institute project which examined
learning and skills development approaches for adults from diverse deprived communities.
Nick Clark
Nick Clark is Senior Research Fellow at the Working Lives Research Institute (WLRI).
He has worked at the Labour Research Department (1983–1987), print union Society of
Graphical and Allied Trades (SOGAT) (1987–1994), the Trade Union Congress (1994–
2005) – where he helped develop the TUC’s work on migrant workers – and in the
General Secretary’s office at the Public & Commercial Services Union, joining WLRI in
April 2009. He was a member of the Gangmasters Licensing Authority board from 2005
until January 2009.
Dan Coffey
Dan Coffey is a Senior Lecturer at Leeds University Business School. His research interests
include various aspects of the employment relation, in both the public and private sectors. He
is co-author with Carole Thornley of Globalization and Varieties of Capitalism (2009) and co-
editor with Carole Thornley of Industrial and Labour Market Policy and Performance: Issues and
Perspectives (2003). He is widely published, and author and co-editor of several other books.
xvi G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t Wo r k
Fiona Colgan
Fiona Colgan is Director of the Comparative Organisation and Equality Research Centre
and a Senior Research Fellow in the London Metropolitan Business School (LMBS) at
London Metropolitan University. Her research interests include equality, organisation
and employment relations focusing in particular on gender, sexual orientation and race/
ethnicity. Previous publications include two co-edited books, Women in Organisations:
Challenging Gender Politics and Gender, Diversity and Trade Unions. She is currently
publishing European Social Fund (ESF)- funded research on sexual orientation and
equalities in the workplace.
Chris Creegan
Chris Creegan is Director of Corporate Affairs at the National Centre for Social Research.
He has researched and written widely on equality and diversity at work. He was previously
a senior official for the public services trade union, UNISON.
Tricia Dawson
Tricia Dawson has been a Senior Lecturer in HRM at Westminster Business School since
2008. She previously spent over 20 years working for the printing trade unions as a
researcher and then as equality policy adviser with responsibility for developing and
implementing equality policy across all equalities. She currently lectures in employee
relations, human resource management and organisational behaviour.
Sarah Dickens
Sarah Dickens was formerly a Research Director at the National Centre for Social
Research, and is now a freelance social researcher. She has a strong interest in teasing
out how social legislation is experienced in practice by the people it is targeting. In this
context, Sarah recently worked with Martin Mitchell on a study of the impact of the Civil
Partnership Act (2004), Adoption and Children Act (2002) and Employment Equality
(Sexual Orientation) Regulations (2003) on the lives of same-sex couples. Sarah also has a
strong research interest in the effects of social policies aimed at families and children and
recipients of state welfare.
Matt Flynn
Matt Flynn is a senior lecturer at Middlesex University Business School in the UK.
His main area of expertise is age management. He has carried out research for the UK
government, European Union, Economic and Social Research Council and British
Council on age discrimination, age diversity and retirement. He has co-written the age
Notes on Contributors xvii
management guide for the Trades Union Congress and Chartered Institute of Personnel
and Development (CIPD).
Deborah Foster
Deborah Foster is Senior Lecturer in HRM at Cardiff Business School, Cardiff University.
Deborah’s research interests include workplace equality and diversity, trade unionism
in the UK and EU public service sector and women in Asia. Recent publications include
articles in Work, Employment & Society (2007) and the British Journal of Industrial Relations
(2010): findings from an ESRC-funded study that examined disabled employees’
experiences of negotiating workplace adjustments under the terms of the UK Disability
Discrimination Act (DDA).
Alexandrine Guyard-Nedelec
Alexandrine Guyard-Nedelec teaches English for social sciences at the Ecole des Hautes
Etudes en Sciences Sociales (EHESS), Paris, France. She has recently completed a PhD on
‘Intersectional discrimination against women lawyers and judges in England and Wales’ at
Université Paris Diderot and has worked under the supervision of Prof. Kate Malleson (Queen
Mary, University of London). She is part of a team working on the translation into French of
British legal texts for a series of books on the Fundamentals of Anglo-Saxon Feminism.
Grace James
Grace James is a Reader in Law at the University of Reading. She teaches Employment
Law, Discrimination Law and European Law and her research interests focus upon family-
friendly employment policies and discrimination law.
Tracie Jolliff
Tracie Jolliff has a background in social work and has worked in British public services
as a professional and manager. As an organisational development consultant and co-
founder of JT&C The Knowledge Group, she continues to influence change on issues such
as ethical leadership development, systems transformation and equality creation. She is
an associate consultant with the Bristol Business School and has developed innovative
leadership programmes engaging with themes mentioned in this chapter. She lectures,
writes, speaks and is an active member on various boards.
Jackie Jones
Jackie Jones is a Senior Lecturer in Law at Bristol Law School, University of the West
of England. Her research interests include discrimination and equality laws, gender, EU
xviii G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k
constitutional law and human rights. She has written numerous articles and books on these
topics. Her latest co-authored book is entitled Gender, Sexualities and Law (forthcoming).
Sonia McKay
Sonia McKay is Professor of European Socio-Legal Studies at the Working Lives Research
Institute, London Metropolitan University. She heads a number of research projects,
mainly focusing on discrimination, migration and collective organisation. She holds a
law degree from Queens University, Belfast and a PhD in employment law from Wolfson
College, Cambridge. She previously worked for the Labour Research Department (LRD)
where she held the post of employment law researcher from 1983 until 2004.
Aidan McKearney
Aidan McKearney is a Senior lecturer on the MA Human Resource Management programmes
at London Metropolitan Business School (LMBS), London Metropolitan University. He
oversees and teaches on the MA HRS course at the Moscow International Higher Business
School (MIRBIS) Institute. Aidan is a member of the Comparative Organisation and
Equality Research Centre based in the LMBS. His research interests include diversity and
equality with a specific focus on exploring issues surrounding organisation sexuality and
sexual orientation in the contemporary workplace.
Martin Mitchell
Martin Mitchell is a Senior Researcher in the Qualitative Research Unit at the National
Centre for Social Research (NatCen). He has conducted a number of studies and reviews
related to religion and belief, sexual orientation and equal opportunities. He also has a
background in sociology and health services research.
Sian Moore
Sian Moore is a Reader at the Working Lives Research Institute at London Metropolitan
University. Her research focuses upon the relationship between class and gender and
upon trade union activism, recognition and learning. She currently has a Leverhulme
Fellowship to look at the outcome of the UK’s statutory recognition legislation; her book
New Trade Union Activism: Class Consciousness or Social identity? looks at the fused identities
of class, gender, sexuality, race and age in new trade union activism.
Anna Paraskevopoulou
Anna Paraskevopoulou is a Research Fellow at the Working Lives Research Institute,
London Metropolitan University. After completing her doctorate on ethnicity and ethnic
Notes on Contributors xix
minorities at the London School of Economics, Anna has worked on a range of projects
on disadvantage and discrimination in the labour market.
Cathrine Seierstad
Cathrine Seierstad is a PhD student in the Centre for Research in Equality and Diversity in
the School of Business and Management, Queen Mary, University of London. Her main
research interests are women, leadership and the use of affirmative action strategies. In
particular, her research has focused on the Scandinavian countries, Norway, Sweden and
Denmark, in relation to the share of women and the use of affirmative action strategies
in areas such as politics, academia and company boards of directors.
Wilf Sullivan
Wilf Sullivan has worked for the TUC since December 2004 as TUC Race Equality Officer.
Previously he worked in local government as a residential social worker. As a lay trade
unionist, Wilf held a range of posts in National Association of Local Government Officers
(NALGO) (now UNISON) and became a regional full-time officer in 1990 and UNISON’s
National Black Members Officer in 2000. Wilf is a member of the Ethnic Minority
Advisory Group that supports the Government’s Ethnic Minority Employment Taskforce.
He represents the TUC at the European Trade Union Confederation (ETUC) on migration
issues, is Vice-Chair of the UK Race and Europe Network, and an adviser to the board of
the European Network Against Racism.
Alex Tambourides
Alex Tambourides is the Workplace Lead for Mind and is Deputy Chief Executive for
Hammersmith and Fulham Mind. Alex has been working in the field of mental health
for over five years, driven by a passion caused by his own experience of depression. Alex
manages a number of projects at local and national level, including Mind Workplace,
a consultancy and implementation service which allows employers to measure how
mentally healthy their workplaces are and provides recommendations for improvement,
and In Work Support which provides support to people in employment with mental
health problems.
Carole Thornley
Carole Thornley is a Professor in Keele Management School at the University of Keele.
She researches equalities, employment, and public policy. She is an Associate Editor for
Gender, Work and Organization, and with Dan Coffey is co-author of Globalization and
Varieties of Capitalism (2009) and co-editor of Industrial and Labour Market Policy and
Performance: Issues and Perspectives (2003). She is widely published and has given evidence
to many official enquiries and reviews.
xx G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t Wo r k
Andrea Winkelmann-Gleed
Andrea Winkelmann-Gleed is a Senior Research Fellow based at the Working Lives
Research Institute, London Metropolitan University since 2004. She holds a PhD from
the University of East Anglia (2005) and her expertise is in demographic change, health
care and international migration related to the employment of marginalised workers,
including refugees, migrants, ethnic minorities and older workers. She is currently
conducting research into innovative approaches to the management of workforce ageing
in the UK and Europe.
Acknowledgements
The editors would like to thank the contributors to this edited collection for their
patience and readiness to update their chapters in what has been a turbulent time for the
legislature, politics and economy of the UK. We would like to thank Jonathan Norman
at Gower for commissioning the Handbook and the rest of the team at Gower for their
expert and gentle guidance. Lastly we would like to thank Winnie and George for the
distraction.
List of Abbreviations
AA Affirmative Action
Acas Advisory, Conciliation and Arbitration Service
ACE Age Concern England
BAME Black, Asian and minority ethnic
BEO Branch Equality Officer
BME Black and minority ethnic
BPIF British Printing Industries Federation
CBI Confederation of British Industry
CIPD Chartered Institute of Personnel and Development
CoJ Court of Justice
CPE Common Professional Examination
CSR Corporate Social Responsibility
DDA Disability Discrimination Act
DED Disability Equality duty
DES Disability Equality Scheme
DLOs Direct Labour Organisations
DLR Discrimination Law Review
DRC Disability Rights Commission
DWP Department for Work and Pensions
EAT Employment Appeals Tribunal
EE(A)R Employment Equality (Age) Regulations
EEA European Economic Area
EFA Employers’ Forum on Age
EHRC Equality and Human Rights Commission
EO Equal Opportunities
EOC Equal Opportunities Commission
EOR Equal Opportunities Review
ER Equality Rep
ESA Employment and Support Allowance
ESF European Social Fund
ESOL English for Speakers of Other Languages
ESRC Economic and Social Research Council
ETD Equal Treatment Directive
GED Gender Equality duty
GEM Gender empowerment measure
GLA Greater London Authority
GLC Greater London Council
GOR genuine occupational requirements
GPMU Graphical, Paper and Media Union
xxiv G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k
HCAs Health Care Assistants

HRM Human Resource Management
IAPT Improving Access to Psychological Therapies
IAS Immigration Advisory Service
ILO International Labour Organisation
ippr/IPPR Institute for Public Policy Research
IRLR Industrial Relations Law Reports
LDA London Development Agency
LFS Labour Force Survey
LGB Lesbian, Gay or Bisexual
LGE Local Government Employers
LGPC Local Government Pay Commission
LPC Legal Practice Course
LSCs Learning and Skills Councils
MRN Migrants Rights Network
NEET Not in Employment, Education or Training
NERA National Employment Rights Authority
NJC National Joint council
NVQ National Vocational Qualification
ODA Olympic Delivery Authority
OGC Office of Government Commerce
ONS Office for National Statistics
PBS Points-Based System
RDAs Regional Development Agencies
SAWS Seasonal Agricultural Workers Scheme
SDA Sex Discrimination Act
SMEs small and medium-sized employers
SOGs Self-Organised Groups
SRA Statutory Retirement Age
TAEN The Age and Employment Network
TfL Transport for London
TUC Trades Union Congress
UCATT Union of Construction, Allied Trades and Technicians
UKBA UK Border Agency
ULRs Union Learning Representatives
UMF Union Modernisation Fund
WAMT Women and Manual Trades
WERS Workplace Employee Relations Survey
WINs Women’s Independent Networks
WLRI Working Lives Research Institute
WPCs Workplace Coordinators
WRS Workers Registration Scheme
Introduction
HAZEL CONLEY AND TESSA WRIGht
These are exciting, if somewhat challenging, times to edit a book on discrimination at

work in the UK. For almost the entire period that this book has been in production so too
was the Equality Act 2010. The Equality Act was devised out of the general accord that
the existing legislation was no longer fit for the purpose of combating the many forms of
discrimination facing people in the UK. Despite this consensus the process of attempting
to reform the legislative framework has been something of a roller-coaster with raised
expectations that have sometimes failed to materialise in statute. Even now the Equality
Act is in place, it is drafted in such a way that only a government with a strong commitment
to equality and social justice need implement some of its more ambitious and innovative
clauses. In addition to the uncertainty created by the most radical overhaul of the UK
equality legislation since its inception, the Act received Royal Assent only weeks before
a general election that changed the political context. The outcome of the election also
brought relatively uncharted political territory with a coalition government. It is therefore
in the midst of legislative and political uncertainty and change that this book was written
and we would like to thank the contributors for their patience and understanding of the
extended deadlines to accommodate the protracted reading of the Equality Bill followed
by the result of the general election. We hope that in deciding to await these two outcomes
this volume will be amongst the first to offer analysis of the new landscape of anti-
discrimination policy and practice. In its broadest sense the word discrimination simply
means to discern difference. However, for most of us, discrimination is a pejorative term
because the action often involves attaching value judgements to differences between
people that result in inequitable treatment. When this happens in the workplace the
result is often heartache and hardship. Discrimination at work is therefore a social justice
issue where one remedy is considered to be legal regulation. Whilst the main premise of
this book is that the law, on its own, is not sufficient to combat discrimination at work, it
is clear from its content that equality and the attempts to reduce discrimination at work
are ‘juridified’ and take much of their lead from legal requirements. Having said that, a
number of the chapters report on the limitations of the law, both in its conceptualisation
and in its application. Other authors utilise ‘business case’ arguments in which the
emphasis is on persuading employers that non-discrimination makes good business sense
for a variety of reasons.1 The locus of business case arguments favours diversity rather
than equality as a conceptual framework. As such, social justice and legal requirements
not to discriminate are relegated to the cost–benefit equation implicit in a business case
1 For an excellent analysis and critique see M. Noon (2007) ‘The fatal flaws of diversity and the business case for
ethnic minorities’, Work, Employment and Society, 21:4, 773–784.
2 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t Wo r k
analysis (see Dawson, Chapter 6; Colgan and McKearney, Chapter 8; Jolliff, Chapter 9;
Guyard-Nedelec, Chapter 16).
In its entirety this book argues, from both social justice and business case perspectives,
that discrimination at work is an experience that continues to blight the lives of thousands
of workers each year despite four decades of equality legislation. However the message is
not a negative one. Most of the chapters offer insights about existing positive international
and domestic developments and make suggestions for the ways that positive change can
be realised – using the law or not. Reflecting these aims, the book is structured in three
parts; Part I provides the legal background including a critical analysis of the law as it,
until recently, existed, as it currently stands and how it may be developed in the future;
Part II provides analyses of discrimination in the workplace in relation to the main strands
protected by the legislation; Part III, contains chapters that examine novel and innovative
approaches to combating discrimination at work and looks forward to how these may be
further developed to contend with inequality. In Chapter 1, Sonia McKay provides the
historical background and antecedents of the legislative framework for equality in the UK.
McKay examines key legal concepts such as less favourable treatment, direct and indirect
discrimination, harassment and victimisation. Her analysis particularly highlights how
the limits of Statute law result in complex and often contradictory case law, which in turn
results in poor outcomes at employment tribunals for victims of discrimination. McKay
also illustrates how cumbersome the anti-discrimination law was and how difficult it had
become for employers to interpret and implement.
Following on from McKay’s analysis, in Chapter 2, Hazel Conley examines the debates
that preceded and accompanied the reform of the anti-discrimination legal framework
that resulted firstly in the public sector equality duties, followed by the Equality Act 2010.
She outlines some of the key features and innovations contained in the legislation and
the arduous process by which they were negotiated. Conley argues that the potential
for far-reaching positive change has been tempered by political concerns that legislative
measures to curb discrimination have the capacity to be antithetical to business efficiency
if not applied sparingly. In so doing she identifies a key contradiction in business case
arguments.
In Chapter 3, Jackie Jones broadens out the conceptualisation of the anti-discrimination
legislation by examining the concept of dignity at work and the argument that the right
not to be discriminated against is part of the human rights framework. The focus of this
chapter is on workplace harassment as a form of discrimination. Although Jones provides
an in-depth legal analysis of this complex variety of discrimination, she also illustrates
the human cost of bullying and harassment at work and how this might be facilitated in
organisational culture and management styles that demand competitive behaviour and
long working hours.
The final chapter in Part I, by Grace James, examines legislation that regulates a
specific but endemic form of discrimination at work – that which is precipitated by the
pregnancy of a worker. In a detailed historical analysis, James shows how protection for
pregnant workers was surprisingly marginal to the Sex Discrimination Act (SDA) until
relatively recently and following intervention by the Court of Justice (CoJ – was ECJ).
James illustrates that the legal requirement for a male comparator, while clearly absurd
in the case of pregnancy discrimination, has for years thwarted the ability of pregnant
workers to use the SDA as a remedy for discrimination in the workplace. As such, she argues
that pregnancy discrimination does not fit easily into the equality model that shapes
Introduction 3
the anti-discrimination legislation. Her conclusion is that advances in reproductive technology

mean that the limitations of the existing legislation are likely to become even more pronounced
unless there is a re-conceptualisation of how far we, as a society, value parenthood.
Building on the critical legal analysis in Part I, the chapters in Part II provide detailed
empirical evidence of how discrimination is experienced on the separate grounds covered
(and in the case of migrant workers not covered, see Clark, Chapter 11) by equality
legislation. Some may see this as an ‘old-fashioned’ approach contrasting with the more
recent emphasis on generic ‘equality’ or ‘diversity’, and which is reflected in the move
to a merged equality commission and a single Equality Act (2010). However we believe
that the arguments and evidence provided in this volume make a compelling case for
retaining and targeting the specific forms of inequality or disadvantage faced by different
groups, many of which persist despite years of anti-discrimination legislation. We have
chosen to group the chapters in this Part to cover gender and sexuality; race, religion
and migration; disability and finally age. This is not to say that we do not recognise the
differences or overlaps between individual strands, or that understanding intersecting
forms of discrimination between these strands is not important. Indeed several chapters
address the ways in which multiple forms of discrimination occur, or take a more generic
approach to equality (see for example Guyard-Nedelec, Chapter 16; Paraskevopoulou and
Beutel, Chapter 18; Moore, Chapter 19) and point out that more subtle measures may be
needed to ensure that the needs of these groups are not overlooked.
Whilst the chapters in Part I examine the role of the State as legislator, Carole Thornley
and Dan Coffey, in Chapter 5, consider the role of the State as employer. The theme of
their chapter, equal pay in the public sector, is both topical and controversial. First, they
problematise the concept of the State as a ‘model’ employer by drawing attention to
the feminised and gender segregated nature of its workforce and the extensive gender
pay gap that accompanies this key feature of public employment. Thornley and Coffey
also report on recent tensions in local government in relation to equal pay, triggered by
legislation, complex collective agreements and compounded by cuts in public spending.
However rather than taking a wholly gloomy view of the prospects for equal pay, they
argue there exists an ‘unusual potential convergence of interests between employers and
unions which offers much to build upon if approached in a spirit of a problem to be
resolved’. On this basis they offer an analysis of best practice on equal pay for the future.
Analysis of the struggle for pay equality is continued by Patricia Dawson in Chapter 6,
this time in the private sector setting of the print industry. Dawson’s case study highlights
that although the economic relations in the print industry are clearly different from
the public sector, the gendered social relations between female and male workers, their
employers and trade unions are remarkably similar. Building on previous analyses of
women workers in the print industry (Cockburn 19832) the emphasis is here on the
gendered conceptualisations of skill and technology but with the material outcome
of pay inequality as its focus. Dawson explains how the power to create and recreate
gendered social relations and concepts of skill relies on and is diffused through particular
forms of social networks.
The power of social networks is a theme carried forward in Chapter 7 by Nicole
Avdelidou-Fischer. However, here the argument is about the usefulness of social networks
as support mechanisms for women workers. Avdelidou-Fischer studied four women’s
2 Cockburn, C. (1983), Brothers: Male Dominance and Technological Change, London: Pluto Press.
independent networks (WINs) in Germany and the UK and argues that, for their members,
WINs go some way to replacing the networks closed to them both in the workplace, family
and wider society. The comparative nature of Avdelidou-Fischer’s research highlights that
national culture, politics and welfare regimes also play a large part in shaping equality of
opportunity and outcome for women workers, but not always in the direction that one
might expect.
Chapter 8, by Fiona Colgan and Aidan McKearney moves the discussion away from
sex discrimination to discrimination based on sexual orientation. More precisely, their
chapter examines examples of good practice in creating inclusivity for lesbian, gay and
bisexual (LGB) employees in five private sector organisations, in contrast to most previous
research in the area which has focused on the public sector, considered the ‘pioneer’ in
sexual orientation equality. Colgan and McKearney identify that, even in ‘good practice’
organisations, LGB employees in the private sector feel that there is an implementation
gap between policy and practice. However the focus of this chapter is again largely
positive, providing an encouraging analysis of measures that lead to good practice in the
experience of LGB employees and which move beyond legal compliance.
Tracie Jolliff’s analysis of discrimination faced by black managers in Chapter 9 moves
the debate on further. Jolliff includes both a strong theoretical and empirical basis
for her arguments that the fabric of any organisation is racialised and claims to racial
neutrality are therefore inevitably flawed. She deftly applies her theoretical position to
workplace incidents to show how race gives rise to differential and negative treatment
for black managers. In doing so, Jolliff produces a powerful critique of the organisational
preference for diversity and business case arguments. Her conclusions are, however,
positive providing thoughtful and useful pointers for acknowledging and acting upon
racialisation in organisations.
A collective approach to confronting racism at work is provided by Chapter 10, in
which Wilf Sullivan, TUC Race Equalities Officer, introduces a reprinted3 section of a
TUC/Working Lives Research Institute publication ‘Working Against Racism. The Role of
Trade Unions in Britain’ by Mary Davis, Roger McKenzie and Wilf Sullivan. The section
we have chosen to reproduce in this volume examines how trade union policies on
racism can help to combat discrimination at work. Similar to Jolliff’s previous chapter,
the pamphlet identifies overcoming denial of racism as the first hurdle to tackling it.
Interestingly, the authors argue that when race discrimination is taken to an employment
tribunal it represents a failure of trade unionism, particularly collective bargaining, to
address racism in the workplace. They further argue that, to ensure collective bargaining
plays its part, the representation of black workers at all levels should be increased in trade
unions.
Nick Clark, in Chapter 11, continues the discussion of race discrimination at work,
but in the different legal context afforded to migrant workers. Clark provides an analysis
of the often contradictory and fast-changing systems in place that face those seeking to
come to the UK to work from within and outside the EU. In doing so he points out that
the role of the majority of the law in relation to migrant workers is designed to reduce
rights and protections rather than provide them. Following on from this Clark shows
how a lack of rights inevitably results in discrimination and poorer terms and conditions
of work for many migrant workers. He considers the difficulty of establishing rights for
3 Kindly reprinted by permission of the TUC and WLRI.

Introduction 5
migrants whose very existence as workers may be ‘tainted by illegality’. Despite these
conceptual difficulties, Clark provides pointers for good practice, but ultimately argues
that there needs to be a separation between immigration status and worker rights to
prevent discrimination in the workplace. Such an approach also puts the emphasis on
enforcing employment rights to the ultimate benefit of all workers, not only migrants.
While discrimination based on race and on religion may sometimes overlap, separate
legislation on religion and belief was introduced in 2003. In Chapter 12, Martin Mitchell,
Chris Creegan and Sarah Dickens provide a detailed analysis of research covering the
management of religion and belief in the workplace. Their analysis, which also examines
a number of employment tribunal cases on religion and belief discrimination, reveals
that the occurrence of discrimination at work on the basis of religion or belief is
widespread, with the dominant form being the failure of employers to allow employees
to participate in religious observances. Mitchell, Creegan and Dickens also show that
poor management often results in employees resorting to the law. However, the way
employment tribunals have interpreted the law has allowed employers to ‘objectively
justify’ discrimination in relation to religion and belief on business grounds. Based on a
‘deliberative event’ methodology which brought together managers from small, medium
and large organisations, the authors identify challenges that may prevent employers from
successfully managing religion and belief in the workplace, including the competing and
sometimes conflicting needs of different groups of workers. Building on their analysis,
Mitchell et al. suggest a range of solutions to how the management of these issues could
be improved.
The following chapters in Part II focus on the workplace context of disability
discrimination. Debbie Foster, in Chapter 13, examines the Disability Discrimination
Act (DDA) 1995 as amended and the Disability Equality Duty 2006, providing an analysis
of how these two pieces of legislation are incorporated into the Equality Act 2010. Her
focus is, however, on an aspect of the legislation that is distinctive and particularly
pertinent to counteracting discrimination at work – the requirement for employers
to make ‘reasonable adjustments’ that allow workers with disabilities to participate
fully in organisational life. Foster argues that a failure by employers to understand
their obligations under the legislation often results in a failure to make the reasonable
adjustments that workers with disabilities are entitled to. Based on her research on the
experiences of workers with impairments, Foster provides good practice guidelines for
employers and trade unions.
Complementing Foster’s chapter, Alex Tambourides extends the discussion to cover
mental health – one of the most prevalent forms of disability amongst workers. In
Chapter 14 Tambourides provides a unique account of his experience of addressing mental
health issues in the workplace, based on his work in a voluntary sector organisation, the
National Association for Mental Health (Mind), which supports those with mental ill-
health. He argues that the DDA has been particularly poor at preventing discrimination
against workers with mental health disabilities. His analysis of this failure is that the law,
on its own, could never be sufficient to prevent the discrimination that is deeply rooted in
historical, social and cultural attitudes that pervade mental health. Tambourides provides
a tool to help managers open constructive discussions with workers with mental health
conditions and pointers for the ways in which organisations can be proactive in planning
for adjustments.
The final three chapters in Part II examine the issue of age discrimination in the
workplace, the most recent strand to be covered by legal protection since 2006. In Chapter
15 Andrea Winkelmann-Gleed provides an overview of workforce ageing in Europe and
outlines some of the key policy debates it has prompted, notably in relation to the burden
on healthcare services, immigration, pensions and retirement ages. Drawing on research
in five European countries, Winkelmann-Gleed provides case study analysis of initiatives
in different member states to retain older workers, but also to combine a balance between
working life and transitions to retirement.
In Chapter 16 Alexandrine Guyard-Nedelec provides a detailed analysis of how age
discrimination intersects with gender to prevent mature women law students entering the
legal profession, even when they achieve high academic performance. Guyard-Nedelec
illuminates the ways in which institutional requirements to gain training contracts
with employers prevent mature women law graduates from turning their qualifications
into careers in the legal profession. She then examines the Employment Equality (Age)
Regulations 2006 and, drawing on her own research, argues, in common with a number
of other authors in the volume, that denial of age discrimination and ignorance of the
Regulations is likely to limit the effectiveness of the legislation in the legal profession.
The three chapters included here on age, although primarily focusing on older rather
than younger age, reveal the variety of ways in which discrimination may be experienced,
both in entry to work and, in Chapter 17, on when to leave it. Matthew Flynn examines a
specific aspect of potential age discrimination concerning requests to delay retirement. He
begins the chapter by positioning requests to delay retirement within the Employment
Equality (Age) Regulations 2006 and the social policy debates that surrounded the
introduction of the Regulations. His analysis focuses on the ‘duty to consider’ requests to
delay retirement contained in the Regulations. Drawing on primary research data, Flynn
examines how public and private sector managers have implemented the Regulations
and ‘duty to consider’, reporting on innovative management practices that have allowed
workers to delay retirement. His conclusions are mixed, finding that the Regulations have
not resulted in the culture change in relation to older workers that the government had
hoped for, but that innovative solutions have been adopted by a minority of employers
where there is a business incentive to do so.
As we noted earlier, this book has been written during times of great legal and political
change and uncertainty, making it somewhat challenging to speculate on possible future
developments in the field of equality. Yet Part III presents evidence from research that
may indicate potential future directions for tackling inequality and disadvantage at work.
Anna Paraskevopoulou and Monika Beutel, in Chapter 18, address the discrimination,
disadvantage and disengagement (referred to in the chapter as the ‘3Ds’) faced by many
groups seeking work. In contrast to the majority of chapters in this book, the focus is
on those seeking to enter the labour market, rather than discrimination faced by those
already in the workplace. The research described in the chapter analysed over 500 projects
in London that aimed to increase the employability of disadvantaged social groups
and sought out individuals experiencing multiple disadvantages and discrimination in
accessing employment. In concentrating on projects that were supporting those facing
multiple forms of disadvantage, this research is in tune with contemporary developments
in thinking around inequality in two ways. First, they highlight that discrimination often
takes multiple or intersecting forms, and shows that only by understanding these multiple
disadvantages can effective measures to address them be deployed. Second, the chapter
Introduction 7
takes a wide definition of disadvantage and covers issues such as ‘postcode discrimination’,
low skills, lack of work experience, lack of social networks and participation in the
informal economy, all of which are outside the protections offered by the six strands of
anti-discrimination law, but which could have been encompassed under provisions in
the Equality Act 2010 that required public bodies to address socio-economic disadvantage
had the duty been taken up by the coalition government. Although the requirement
would not have directly covered employment and offered nothing like the protection
of the other strands, it indicated a shift in thinkingthat recognises that social class can
be a significant root of disadvantage that needs legal remedies, alongside other forms of
discrimination.
Trade unions, however, were established to combat class-based inequality, and have
at times been slow to see the relevance to their struggle of forms of inequality based on
gender, race, disability and so on. However Sian Moore, in Chapter 19, shows us how a
new form of union representative, the Equality Representative (ER), may be ideally placed
to promote fairness by taking up the issues of discrimination so commonly experienced
in the workplace. In this sense, ERs have an important role to play in ensuring that the
gap between employer policy and practice – as identified by Colgan and McKearney in
Chapter 8, – is minimised. In her evaluation of the Equality Rep project in public services
union UNISON, Moore suggests that the ER role may be attracting new forms of activists
to the union. However she warns of the risk that the ER role may reinforce trends towards
the individual representation of workers at the expense of collective action, unless ERs
are sufficiently involved in the union’s collective bargaining activities. Although the
Equality Act did not concede statutory rights to time off for ERs, despite union lobbying,
it is likely that the role of ERs will be a developing one in many trade unions. As it
encompasses a broad definition of equality, ERs can take up many and multiple forms of
discrimination.
The private sector has, in the UK, been subject to less stringent demands from equality
legislation than the public sector, as several chapters show (Conley, Chapter 2; Thornley
and Coffey, Chapter 5; Wright, Chapter 21). But Catherine Seierstad, in Chapter 20,
offers a glimpse of what can be done to tackle gender inequality in the private sector, by
examining the use of gender quotas on company boards in Norway. Seierstad shows how
Norway has traditionally been seen as one of the most equal countries in the world for
men and women, but that women failed to achieve equality with men on private company
boards, in common with many other countries. This led to the introduction of the law in
2004 that requires public limited companies to have 40 per cent of women on their board
of directors. The law has resulted in a remarkable improvement in the gender composition
of boards, although Seierstad’s analysis draws attention to the phenomenon of the ‘Golden
Skirts’ – women on large numbers of different boards. Nonetheless, the chapter provides an
innovative example of what can be achieved by effective legal intervention.
In the final chapter, Tessa Wright takes as her starting point the persistent gender
segregation in the UK workforce which is a major contributor to the gender pay gap. Wright
argues, however, that recent government attention to the long-standing gender pay gap
had resulted in some measures to attract women into traditionally male occupations,
particularly in London. Drawing on research examining the intersections of gender,
sexuality and class in the two UK sectors with the lowest proportion of women – transport
and construction – the chapter examines some of these initiatives and explores in greater
detail one particular strategy, that of linking equality with public procurement. She argues
that public authorities are increasingly taking equality into account in the tendering
process and in the contracts awarded to private contractors for public sector projects or
services. Despite some initial legal uncertainty, using equality in procurement has been
given momentum by the requirements of the public sector equality duties, and Wright
considers whether this is taken further by the Equality Act 2010.
Many provisions of the Equality Act 2010 will be implemented gradually (see
Conley, Chapter 2) – and some may never be fully enacted, depending on government
commitment – but in any case it will be some time before we can see the effects of
this wide-ranging overhaul of anti-discrimination provisions on the everyday lives of
working people. However, we hope that the contributions in this book provide a timely
reminder of the extent and scale of discrimination still facing many workers, as well as
some practical guidance and recommendations that can offer pointers to those seeking
to challenge workplace discrimination.
It is hoped that this Handbook of Discrimination at Work will be of use to a variety
of readers. The chapters have been written by authors with a huge combined breadth
and depth of experience in understanding workplace discrimination, as academics and
researchers, as well as managers, consultants and trade union officials. Much of the
research has contributed to policy formation, either through direct commissions or more
diffuse means, and most of the authors are concerned to see their work have an impact
on improving lives for people at work. We therefore hope that academics, researchers,
policymakers, practitioners and students will all find something of value in this book.
Note
As already pointed out, this handbook was prepared during a time of change and
uncertainty surrounding the legal framework of UK discrimination law, culminating in
the passing of the Equality Act 2010 in April 2010. While chapters have been updated
to reflect any substantive changes to the legal position in the Equality Act, some
chapters refer to the provisions under the previous anti-discrimination Acts, for example
the Disability Discrimination Act 1995 (DDA) or the Employment Equality (Sexual
Orientation) Regulations 2003. The substance of the law described here has not changed,
although these Acts have now been incorporated into the Equality Act 2010, as described
in McKay, Chapter 1.
I
part
Legal Framework
and the Limits of
the Law
1 A Right Not to be
chapter
Discriminated Against:
The Origins and
Evolution of
Discrimination Law
SONIA McKAY
Introduction
This chapter begins by looking at the origins of UK discrimination laws, noting that
earliest legislation, the Equal Pay Act 1970, represented the government’s response to
industrial action taken by women workers who were being paid less than male colleagues
doing similar work. The chapter then turns to consider how the law developed around
concepts of non-discrimination, direct and indirect discrimination, together with the
principle of no less favourable treatment. These concepts are explained and the key legal
cases are reviewed. The chapter then discusses whether the law has been effective in
countering discrimination and notes that the complexity of the law and the difficulties
faced by applicants taking cases means that the likelihood of success is very low. The
public sector duties not to discriminate, initially introduced into race discrimination
legislation and gradually extended to other strands of discrimination, are not covered in
this chapter, but are discussed in full elsewhere (see Conley, Chapter 2).
Nearly 40 years ago the first piece of legislation aimed at tackling discrimination in
employment – the Equal Pay Act 1970 – was introduced in the final days of the Labour
government of 1964–1970, as the government’s response to a strike in 1968 of women
workers at the Ford Motor Company. The women had demanded equal pay with men
working on comparable, but different work, in other sections of the factory. Their
strike had been partially successful and had highlighted that pay discrimination was
systemic, with employers, and often unions, accepting that women could be paid less.
Job segregation – the division of men and women into different types of work – assisted
in this discriminatory process; since men and women often did not work alongside one
another doing exactly the same jobs. The next two advances in discrimination law were
the Sex Discrimination Act 1975 and Race Relations Act 1976. The Acts were introduced
at around the same time as European level legislation began to concern itself with issues
of discrimination, with a directive, on equal pay in 1975 and another on equal treatment
in 1976. However, while UK legislation also applied in relation to race discrimination,
at European level the law dealt only with sex discrimination. It was not until 2000 that
two new directives going beyond this were introduced: Directive 2000/43/EC, which
implements the principle of equal treatment between persons irrespective of racial and
ethnic origin; and Directive 2000/78/EC, which establishes a general framework for equal
treatment in employment and occupation on the grounds of religion or belief, disability,
age or sexual orientation.
From 1976 and for the next 20 years sex and race were the only areas covered by UK
discrimination law. However, in the last 15 years, the range of issues covered by discrimination
law has grown significantly. The Equality Act 2010 incorporates all of the following laws into
one statute. The aim has been to standardise the legislation and to ensure that it reflects the
decisions of the courts in a number of key legal rulings interpreting the legislation:
• Equal Pay Act 1970 (as amended): provided a right to equal pay with a comparable
worker of the opposite sex;
• Sex Discrimination Act 1975 (as amended): prohibited discrimination on the grounds
of sex, gender reassignment, marriage or civil partnership;
• Race Relations Act 1975 (as amended): prohibited discrimination on racial grounds –
colour, race, nationality, ethnic or national origins;
• Disability Discrimination Act 1995 (as amended): prohibited discrimination against
disabled persons;
• Sex Discrimination (Gender Reassignment) Regulations 1999: prohibited
discrimination against transsexuals and those in the process of gender reassignment;
• Employment Equality (Sexual Orientation) Regulations 2003: prohibited
discrimination on the grounds of sexual orientation;
• Employment Equality (Religion or Belief) Regulations 2003: prohibited discrimination
on the grounds of an individual’s religion or belief; and
• Employment Equality (Age) Regulations 2006: prohibited discrimination on the
grounds of age.
In addition, there are two other areas of law related to non-discrimination, on part-
time workers and on fixed-term (temporary) employees. The relevant legislation is:
• Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 gave a

right to no less favourable treatment to part-time workers; and
• fixed-term employees (Prevention of Less Favourable Treatment) Regulations 2002:
gave a right to no less favourable treatment to temporary employees.
There is therefore now a well-established body of law prohibiting discrimination at

work and the range of issues covered is extensive. However, discrimination remains a
constant feature of workplace experience in the UK (Hepple et al. 2000; Dickens 2007;
Fredman and Spencer 2003; Wrench 2007). Women continue to earn around 20 per
cent less than men (Ashe,2009); black and minority ethnic workers are more likely
to be working in low-paying jobs and are also more likely to be unemployed than
are white workers (ippr, 2010); lesbian, gay, bisexual and transgendered workers also
experience discrimination and exclusion at work (Wright et al. 2006); disabled workers
A Right Not to be Discriminated Against 13
are disproportionately excluded from employment (Gore and Parckar 2010); part-time
workers earn less per hour than full-time workers; and temporary workers are the most
at risk when it comes to redundancies and cutbacks. The reasons for these continuing
discriminatory outcomes are partly because the mere existence of a law cannot of itself
guarantee equality, if the mechanisms in place to challenge discrimination are weak and
where the structural basis of discrimination is strong. Persistent reported high levels
of discriminatory treatment have also been consequent upon the nature of the laws
themselves, which are unduly complex, procedurally difficult and have continuingly low
success rates. Whilst the Equality Act 2010 may have some impact on this, the problem
is more complex than one that can be rectified through consolidating the existing laws.
It lies in the definitions of discriminatory treatment and in the inability of the legal and
social mechanisms to commit to and to deliver equality.
This chapter examines the key principles of the law, exploring the barriers that prevent
it from being effective. It refers to a number of landmark court rulings that have shaped
discrimination law and then reflects on the consequences of taking cases to tribunals for
the individuals concerned, by looking at the data on outcomes and settlements.
The Concepts of Discrimination and Less Favourable Treatment

Discrimination law is constructed around the following principles:
• The right not to be directly or indirectly discriminated against;

• the right to be treated no less favourably than comparable workers;
• the right not to be subjected to harassment on discriminatory grounds;
• the right not to be victimised for having brought a discrimination complaint; and, in
the case of disabled workers
• an obligation on the employer to consider suitable adjustments.
These concepts appear in both the UK legislation and in the EU directives. On the face
of it they appear to differentiate between two models – one of the prohibition of direct or
indirect discrimination, harassment or victimisation and the other around the concept
of ‘no less favourable treatment’. In practice the difference between these two models is
not significant. In essence, whether the model is direct/indirect discrimination (sex, race,
disability, sexual orientation, religion or belief, age) or less favourable treatment (part-time,
fixed-term) the mechanism for taking a discrimination claim is similar. The individual
must meet the requirements set out in the legislation and must generally show why the
treatment complained of is as a consequence of unlawful discrimination, even if the precise
tests, to show direct/indirect discrimination or less favourable treatment, may differ.
Direct Discrimination
An employer directly discriminates against a person where that worker is treated less
favourably than someone else (of the opposite sex, of a different racial group and so forth).1
An employer indirectly discriminates against a person where conditions are imposed which
1 Now, s.13 of the 2010 Act.

apply to the workforce generally but which adversely affect one group and which the employer
cannot objectively justify.2 Collins et al. (2005) make the point that the ‘dividing line between
direct and indirect discrimination is not entirely clear’ but for lawyers the main distinction
is that the legislation provides that direct discrimination cannot be justified (save in relation
to disability and to age) whereas indirect discrimination can be, whether by reference to
the business case, the impact non-discrimination would have on the workforce generally,
or other reasons. Under the age discrimination regulations an employer may treat people
differently on the grounds of age if it is ‘a proportionate means of achieving a legitimate aim’
which could include business needs and efficiency; health, welfare and safety and for the
particular training requirements of the job. In the age regulations there was also a default age
of 65 after which an employer could dismiss an individual simply for age reasons although
this provision is repealed with effect from October 2011. This had been viewed as a major
deficiency in the law, but one that was upheld by the Court of Justice.
Less favourable treatment, amounting to direct discrimination, can occur in a number
of ways, including asking only women about their caring responsibilities; questioning only
workers believed to be gay about their sexuality, failing to apply a procedure to a minority
ethnic worker, when the procedure would have been applied to a worker of a different
ethnicity. Cases of direct discrimination are less likely now to be taken to the tribunals
than are cases of indirect discrimination. That is not to say that such cases never occur,
but rather that employers are generally aware of the existence of discrimination laws
and that they have a duty not to treat workers differently on account of their ethnicity,
gender, sexuality, disability, age or religion. An example of a direct discrimination case
that was argued in the courts is the landmark case of Shamoon v Chief Constable of the RUC
[2003] IRLR 285. Ms Shamoon had some of her duties removed from her post specifically
because she was a woman and the duties, which included being armed, were considered
unsuited to her gender. Even though she had experienced no loss in pay or grading she
took a sex discrimination claim against her employer. The House of Lords (hereinafter
referred to as the Supreme Court, the UK’s highest appeal court) held that the employer’s
actions, in removing the duties in question did amount to direct discrimination. Another
example of direct discrimination is in the case of James v Eastleigh Borough Council [1990]
2 AC 751 (HL), again a case that went to the Supreme Court. Mr James, who was over
the age of 60 at the time but was not yet 65, had been charged to use his local swimming
pool while his wife, who was the same age as him, was not. The existing rule was that
free entry was only obtained after the person had passed state pension age, but since
pension ages differ for men and women it meant that women were entitled to the benefit
of free entry five years earlier than men. Mr James argued that the council had directly
discriminated against him as a man and the Supreme Court agreed. James’ case led to
service providers having to amend their rules where they offered age-related benefits.
James took the case before the age discrimination laws came into force, and so had to
argue the claim on the basis of sex discrimination law. A similar case today might also be
argued using age discrimination law.
Direct discrimination does not depend on the employer’s intention or motivation.
The fact that, as a result of an employer’s actions, an individual is directly discriminated
against, makes it irrelevant whether the employer intended the discrimination to occur
or even discriminated for benevolent reasons (such as not giving a worker the chance to
2 Now, s.19 of the 2010 Act.

carry out their full range of duties to keep them out of danger – the Shamoon case), if that
action is applied in a discriminatory manner in areas protected by the law.
For the case to be successful the worker has to show that a comparable worker (of
the opposite sex/race and so on) would be or has been treated differently. The test is
usually referred to as the ‘but for’ test, when the tribunal will ask the question whether,
but for the fact that the individual was female/of a particular ethnicity and so on, the
discrimination would have occurred. The law does not therefore attempt to enforce
specific standards of behaviour on employers. There is no general obligation to act fairly
or to treat all workers well. It is only in comparison with the treatment of other workers
in the opposite category that a claim can be brought. If an employer decides to treat all
workers badly, for example by stopping workers taking their holidays, a claim cannot be
taken under discrimination law. Nor does the treatment have to be identical as long as
it is comparable. For example, if there is an employer rule which imposes a dress code
on only one sex, this would amount to sex discrimination. However, if dress codes were
imposed on both sexes, even if the dress requirements differ (by sex/race and so on),
these would not amount to discriminatory treatment (see: Schmidt v Austicks Bookshops
[1978] ICR 85 (EAT)). Once the worker has shown that there has been discrimination, the
burden of proving that this has not occurred shifts to the employer (see below: ‘Proving
Discrimination’).
Indirect Discrimination
Indirect discrimination is intended to tackle cases where employers have seemingly

neutral rules, which apply generally but which in practice disadvantage groups of people
defined by sex, race, religion, sexual orientation, disability3 or age. The law refers to
the employer having a ‘provision, criteria or practice’ which is generally applied but
which disadvantages a member or members of a protected group. Indirect discrimination
involves the application of a criterion or practice that is shown to:
• Put members of the protected group at a particular disadvantage;

• that is not justifiable; and
• that is to their detriment.
Thus the test is first to see whether a rule that the employer has applied is particularly
disadvantageous to members of the protected group. Disadvantageous rules might
include: requiring workers to do certain shifts which it is more difficult for those with
caring responsibilities (predominantly women) to do; language tests which disadvantage
ethnic minority workers; or requiring specific levels of agility, which disadvantage
disabled workers. If such rules are applied the courts investigate whether the employer
is able to justify the rule, even though it is discriminatory, for example, by showing a
clear business need for the rule which could not be otherwise accommodated and which
is a proportionate means of achieving a legitimate aim. In essence the court must try to
weigh up the discrimination suffered by the employee against the employer’s reasonable
needs. It is up to the employer to provide sufficient justification (see below: ‘Proving
Discrimination’).
3 Disability is included within the area of indirect discrimination under the Equality Act 2010.
Thus the difference between direct and indirect discrimination is that in the case of
the latter the employer can defend the claim by citing reasons that justify the indirect
discrimination, which the tribunals will take into account in deciding whether or not
the discrimination claim is upheld. The courts will thus examine the rule and determine
whether it is justified. The landmark case here is London Underground v Edwards (No. 2)
[1997] IRLR 157 (EAT). In this case London Underground had imposed a requirement
on its entire train staff that they had to work shifts. Ms Edwards was a single parent and
was not able to work the new shift system due to her caring responsibilities. The EAT
noted that the employer did have a rule obliging all workers to work shifts. It then noted
that for women like Edwards, with caring responsibilities, shift working was much more
problematic. It then went on to hold that the requirement for shift working did indirectly
discriminate against Edwards and that the employer had not provided an acceptable
justification, as other ways could have been found to cover the shifts.
However, the fact that the courts are left to interpret whether employer rules or
actions are justified or not means that there is both uncertainty in how the law is applied
and also it results in discriminatory impacts being condoned. The key case is Hampson v
Department of Education and Science [1989] ICR 179 (CA). Ms Hampson, a Hong Kong
Chinese teacher who had qualified in Hong Kong applied for teacher recognition in the UK.
She was told that her teaching qualification was not comparable to the UK qualification.
Hampton claimed that the rules for qualification disadvantaged her on the grounds of
her race. The Court of Appeal rejected her claim on the ground that the rule, although
having a discriminatory impact, was justified by the objective of maintaining standards.
Commenting on the impact of the Hampson and other rulings on justification, Connolly
(2001) argues that the justification test ‘upsets the theory of indirect discrimination by
sanctioning a certain amount of discrimination and blurring its causes. It also weakens
the attack on business inefficiencies that benefits all’.
Another failing of the law on indirect discrimination had been that, until the
introduction of the Equality Act 2010, the concept did not apply in disability discrimination
cases. Individuals who claimed that they had been discriminated against on the grounds
of disability could only claim if they had been directly discriminated against (see below).
The Equality Act 2010 includes the right to claim indirect discrimination in disability
discrimination cases.
Less Favourable Treatment
A central feature of discrimination law is the focus on a concept of ‘no less favourable
treatment’. This means that the treatment complained of has to be compared to that
experienced by members of the comparator group. In the case of women, it is male
workers. In the case of disabled it is the non-disabled. In the case of homosexuals it is
non-homosexuals, and so forth. The comparable worker can be actual or, where there is
no actual comparable employee, it can be hypothetical, in other words it is possible to
take a discrimination claim on the basis of how an employer would have treated someone
of the comparator group.
In equal pay claims, however, there is no provision for a hypothetical comparator.
The comparable employee has to be someone of the opposite sex who is in employment
and who is also paid more. It is, however, left to the individual making the claim to
choose who the comparator should be. It does not matter whether, for example, there
are also individuals of the opposite sex being paid the same as the individual making the
claim, as long as she can show that there is one or more comparator who is paid more.
The comparator must be employed in the same workplace or, if at a different workplace,
under the same terms and conditions. The aim is to avoid individuals being able to
compare their pay with that of workers with different employers, as the law does not
have the aim of generally improving the rates of pay of the disadvantaged group. If an
employer pays everyone a low rate of pay or, for example, only employs women and pays
them a low rate of pay, they cannot point to another employer who is paying more to
workers of the opposite sex doing similar work. In equal pay claims only there are also
two types of comparison. The first is with individuals doing the same or similar work. The
second is with individuals doing different work, but where its value is equal, with value
usually being determined through some form of job evaluation exercise.
Unlawful Harassment
It is unlawful to subject a worker to harassment on discriminatory grounds. In most
harassment cases the worker will be complaining about a sustained record of harassment
but the courts have also held that a single incident of harassment can amount to
unlawful discrimination, depending on its seriousness and the impact it has had on the
worker who was harassed. The key case is Strathclyde Regional Council v Porcelli [1986] ICR
564. Ms Porcelli had been subjected to sustained sexual harassment of a physical and
verbal nature and claimed that she had been discriminated against on the grounds of
her sex. The Court of Session held that the treatment she had received amounted to sex
discrimination since a male employee would not have been subjected to the same form
of sexual harassment.
While the protection from harassment is an important right, the way that the courts
have applied the law has meant that it is not in every case that the outcome is favourable
to individuals, as in the Porcelli case, particularly where the courts decide that the
harassment is not specific to gender (or on any other discrimination ground), but that it
just denotes general harassment not protected by discrimination law. This point comes
out clearly in the case of Pearce v The Governing Body of Mayfield Secondary School [2003]
ICR 937. Ms Pearce was a teacher and was also out as a lesbian and as a consequence pupils
at the school subjected her to verbal abuse. Pearce claimed that she had been subjected
to harassment on the grounds of her sex4 but the court disagreed that the discrimination
against her was sex-based, using the argument that a gay male teacher would have been
subjected to the same abuse. The court’s position was that since male teachers would have
been equally badly treated by the school’s pupils, there was no sex discrimination.
Unlawful Victimisation
The law gives specific protection to individuals who take discrimination claims as it is
recognised that if this were not the case, employers would be free to victimise workers
4 The case was taken prior to the regulations on sexual orientation coming into force meaning that Pearce could only
take a claim using sex discrimination laws..
because they had challenged discriminatory practices. A recent case on victimisation is

the case of St Helens MBC v Derbyshire and others [2007] UKHL 16. This was an equal pay
case in which the employer, in an attempt to get women to withdraw existing equal pay
claims that had already been submitted to a tribunal, wrote to all council staff pointing
out that a successful equal pay claim would jeopardise future pay improvements since the
employer would not have the money to pay the women and to pay all workers a reasonable
annual increase. The Court of Appeal held that the writing of the letter amounted to
victimisation. Another key case is that of Nagarajan v London Regional Transport [2000] AC
501. Mr Nagarajan had previously taken a claim of race discrimination. He subsequently
applied for a promotion and was unsuccessful and claimed that he had been victimised
because of his earlier claim. He succeeded, since the Supreme Court ruled that he was
not required to show that the interview panel had consciously discriminated against
him. It was enough that there had been unconscious discrimination, on the basis of their
existing knowledge of his earlier claim.
However, while the law is clear that victimisation is unlawful, again the interpretation
that is applied by the courts means that it can also exclude individuals from its protection
in some situations. In the key case of Chief Constable of West Yorkshire Police v Khan
[2001] ICR 1065 (HL), Mr Khan, a police officer, had asked for a reference, which was
refused because at the time Khan was pursuing a race discrimination claim over non-
promotion. The Supreme Court ruled that the refusal did not amount to victimisation as
it had occurred, not because Khan had taken a claim, but because that claim was still in
progress. The mere fact that his case was still in progress was sufficient to deny him the
right to protection from victimisation.
Disabled Workers
The law on disability discrimination, while containing many of the same concepts
as other discrimination laws, such as the issue of less favourable treatment and the
provisions on victimisation and harassment, has differed in a number of respects from
the treatment of other forms of discrimination. First, as already noted, prior to the
Equality Act 2010 only direct discrimination was covered, and this had led to a ruling
by the Supreme Court in 2008 (London Borough of Lewisham v Malcom [2008] HLUK 43)
which had meant that disabled people had to compare their treatment with that of non-
disabled people, without taking account of the disability itself. In the Malcom case this
meant that a local authority was not discriminating when evicting a tenant who had
sub-let his accommodation in breach of the tenancy agreement, given that the same rule
would have been applied to a non-disabled person. The fact that it was the disability that
had made him susceptible to distortions in thinking and had led him to sub-let, in breach
of the tenancy agreement, was not relevant, according to the court. Furthermore an
employer can directly discriminate against a disabled worker if the discrimination can be
justified. This justification test was changed with the introduction of s.19 of the Equality
Act 2010 (on indirect discrimination) and s.15 specifically on discrimination arising from
disability. S.15 does not require a comparator. However, the test of objective justification
does apply and there is additionally a defence of the employer not reasonably being
expected to know that the employee had a disability. The way that the law operated, prior
to the 2010 Act, meant that there were situations where disabled workers were treated less
favourably without the right to protection under the Disability Discrimination Act 1995
(as amended) because the employer provided justification for the treatment.
A disability can be physical and some forms of mental ill health are also covered but
is defined in relation to the existence of medical evidence (for fuller discussion of mental
health at work see Tambourides, Chapter 14). Addictive illnesses connected with alcohol
and drug additions are not, however, covered. This leaves many workers with addictions
that affect their ability to work outside the protection of the legislation.
The less favourable treatment has to be in comparison to non-disabled workers.
However, there is a concept of ‘associative discrimination’, where an individual may
be held to have been discriminated against for reasons associated with disability, even
though the individual her/himself is not disabled. This ruling is in the landmark case
at the Court of Justice (Coleman v Attridge Law [2008] IRLR 722) when it was held that
discrimination against a worker who required more flexible work arrangements, due to
her caring obligations for a disabled child, and was refused them, had been subjected
to discrimination on the grounds of disability. Section 13 of the Equality Act, which
protects against direct discrimination, ‘because of’ a disability, intended to extend the
protection from discrimination in line with the Coleman decision, which held that that
parent of a disabled child could claim disability protection, when discriminated against
for undertaking caring responsibilities to her child.
A second important difference is that the law places a greater burden of proof on
the worker to show that they are disabled. There are a number of tests that must be
met. First, the disability must amount to an impairment, which is long-term and second,
which inhibits the individual from carrying out normal day-to-day activities. The latter
represents an unusual element in the construction of disability law since the normal
day-to-day activities are generally activities exclusive of those connected solely with the
individual’s employment. Thus, for example, if the job requires that the individual lift
heavy weights, which their disability prevents them from doing, but these are beyond
what an individual in normal day-to-day activities would lift, they cannot claim under
disability discrimination law. Similarly if an individual’s disability restricts some other
activity that is not defined as ‘normal’ and ‘day-to-day’ it does not come within the
definition.
The third important concept in disability law is the duty (on the employer) to
make adjustments that might enable the disabled worker to continue in employment
(see Foster, Chapter 13, for further discussion). The tribunals will look at whether the
adjustment would actually remove the disadvantage faced by the employee and whether
it is reasonable. This can be said to represent one of the major weaknesses in the legislation
in that it puts the obligation on the employee (not on the employer) to identify the broad
nature of the adjustment required and this is often difficult for employees since they are
unlikely to have access to the kind of expert knowledge necessary to identify what kind
of adjustments could be made. Furthermore, the fact that the requirement is constrained
by the concept of what is reasonable means that employers can avoid the obligation to
make adjustments where they can argue that the costs would be disproportionate or the
adjustment would be unduly disruptive. The landmark case in relation to the duty to
make adjustments is the Supreme Court decision in Archibald v Fife Council [2004] IRLR
651, which held that the employer should consider whether there are adjustments whose
effect would be to no longer place the disabled person at a substantial disadvantage,
while there is no requirement to treat a disabled person more favourably.
Proving Discrimination
In discrimination claims the rule is that the person making the claim has to establish
that there has been less favourable treatment from which inferences can be drawn that
the less favourable treatment is on the grounds protected by the Equality Act 2010. It is
then that the burden of proof shifts to the employer, who must establish the reason for
the treatment and this cannot be merely that there was no intention to discriminate, if
the consequence is that discrimination has taken place. This provision for shifting the
burden of proof onto the employer was an important advance in discrimination law,
as it placed responsibility on the employer to prove that what had been done was not
based on discriminatory treatment. Prior to the introduction of the Equality Act 2010 the
provisions regarding the shift in the burden of proof did not apply in victimisation cases,
which meant that there was a considerable weakness in the law.
In cases of indirect discrimination where this is being justified by factors that include
an economic argument, the employer must at least set out the basic economic analysis of
the business and its needs and objectively justify the decision.
Despite this positive aspect of the legislation, discrimination claims remain among the most
difficult to win in the employment tribunals. The tribunals, while finding cases concerning
redundancy or non-payment of wages relatively straightforward to deal with, seem to continue
to struggle when dealing with concepts of discrimination. In part this reflects both their history
and also their composition, since their membership remains overwhelmingly white and male.
In the last year for which the statistics are available (2007–2008) just 489 sex
discrimination cases were successful at tribunals, while 3,100 were settled through
Advisory, Conciliation and Arbitration Service (Acas) conciliation procedures, out of
26,907 initially submitted. In race discrimination cases, out of 4,130 initial claims, just
121 succeeded at the tribunals and another 1,295 were Acas-conciliated settlements The
low level of success following submission of a tribunal application is demonstrated by
taking the successful and conciliated cases together in the two principal discrimination
jurisdictions, where they amount to just 16 per cent of applicants. There are similarly low
numbers for the other jurisdictions as the Table 1.1 shows.
Table 1.1 Outcome of tribunal claims, 2007–2008
% of all
No. No. successful submitted Median/Ave
Jurisdiction
applications at tribunals claims successful award
at tribunal
Sex 26,907 489 0.01 £5,200/£11,263
Race 4,130 121 0.03 £8,120/£14,566
Disability 5,833 178 0.03 £8,363/£19,523
Religion/belief 709 14 0.02 N/A/£3,203
Sexual orientation 582 29 0.05 £2,103/£7,579
Age 2,949 56 0.02 £1,526/£3,334
Equal pay 62,706 678 0.01 N/A
Source: Employment tribunal and EAT statistics 2007–2008.5
5 http://www.employmenttribunals.gov.uk/Documents/Publications/EmploymentTribunal_and_EAT_Statistics_v9.pdf
Not only are the chances of winning a claim very slight, but the compensation
which successful applicants receive is low, as the table shows. While a few high profile
compensation claims hit the media headlines, the reality is that, even where an individual
succeeds at a tribunal, the likelihood is that the amount awarded will be well under
£20,000. These continuing low levels of compensation (despite the fact that the law states
that there is no maximum amount that can be awarded) mean that employers who do
discriminate are unlikely to face significant financial penalties.
Time Limits
Most employment law rights are enforceable only within a specific time period from the
treatment/event having occurred. This also applies in discrimination claims which, in
general, must be submitted within three months of the discriminatory action having
occurred, save in equal pay claims, where the time limit is six months. The fact that
there is a time limit can be problematic for some claims, as the individual either needs
to have submitted the tribunal claim within the three months or to have shown that the
discrimination is ‘continuing’, in other words, while the discriminatory action occurred
at a specific point in time, its detrimental consequences continue to be felt. This is often
difficult to establish.
Procedures for Claiming Discrimination
Discrimination claims are submitted to employment tribunals, generally consisting of

two lay representatives and one legally qualified chair, who decide on the claim. The
tribunals were originally intended as a relatively informal method of pursuing claims but
over the years have become increasingly legalistic, with the parties now more likely to
appoint lawyers to present their argument. As a result the legislation itself has become
more complex, with legal precedents continuously emerging as the cases are taken
through the higher courts.
An unusual element in discrimination claims is the right of the individual who is
considering taking a claim to require of the employer that he/she complete a questionnaire
seeking information on the background to the potential claim. If the employer refuses
to complete the questionnaire, the tribunal may draw inferences of discrimination. The
questionnaire is a useful tool for employees who believe that they have been discriminated
against but who lack the necessary evidence. They can use this process to put questions
to the employer that will assist them in assessing whether or not they have a claim.
Importantly, tribunals will take account not only of what the employer puts in the
questionnaire, but can also draw inferences of discrimination if the employer refuses to
give the answers requested.
Conclusion: Revising Discrimination Laws

The failure of the law to tackle discrimination in the workplace and the continuing
evidence of discriminatory treatment and outcomes have led to demands for changes to
the law. The government’s response was to introduce the Equality Act 2010 to replace the
existing discrimination laws. The arguments in favour are that this will simplify the law,
as the tests will apply to all forms of discrimination. However, the principal reasons why
discrimination cases remain so difficult to succeed in require more fundamental changes
that the Equality Act does not address. The following chapter by Hazel Conley discusses
recent developments in discrimination law, including the changes introduced by the
Equality Act 2010.
References
ASHE (2009) Annual Survey of Hours and Earnings, Office for National Statistics (ONS), available at
http://www.statistics.gov.uk/statbase/product.asp?vlnk=13101 [accessed 28 January 2011].
Collins, H., Ewing, K. and McColgan, A. (2005) Labour Law Texts and Materials, 2nd ed. Oxford: Hart
Publishing .
Connolly, M. (2001) ‘Discrimination law: justification, alternative measures and defences based on
sex’, Industrial Law Journal, vol. 30, 311–318.
Dickens, L. (2007) ‘The road is long – thirty years of equality legislation in Britain’, British Journal of
Industrial Relations, vol. 45, no. 3, 463–494, September 2007.
Fredman, S. and Spencer, S. (2003) Age as an Equality Issue – Legal and Policy Perspectives. Oxford:
Hart Publishing.
Hepple, R., Coussey, M. and Choudhury, T. (2000) Equality – A New Framework. Oxford: Hart
Publishing.
Ippr (2010) Recession Leaves Almost Half Young Black People Unemployed. London: Institute for Public
Policy Research.,
Gore, E. and Parckar, G. (2010) Disability and the Downturn. London: Leonard Cheshire Disability.
Wrench, J. (2007) Diversity Management and Discrimination – Immigrants and Ethnic Minorities in the
EU. Aldershot: Ashgate Publishing.
Wright, T. ,Colgan, F., Creegan, C. and McKearney, A. (2006) ‘Lesbian, gay and bisexual workers:
equality, diversity and inclusion in the workplace’, Equal Opportunities International, vol. 25, no. 6,
465–470.
2 The Road to Equality:
chapter
Legislating for Change?

HAZEL CONLEY
Introduction
This chapter charts attempts to reform UK equality legislation since 1997. After a brief
review of the academic and policy debates that called for change, the focus of the
paper is on the public sector equality duties – recent legislation, beginning with the
Race Equality Duty (RED) 2001, which began to broaden the conceptualisation of
equality legislation in the UK. The chapter analyses the opportunities presented by new
legislation and how far these opportunities have been pursued in subsequent legislation
and in the single Equality Bill/Equality Act 2010. Unfortunately the conclusions are not
altogether positive. They highlight that the conflicts of interest between achieving real
equality of outcome and the burdens this is perceived to result in for employers that
have led to historically compromised equality legislation continue to impede positive
change.
The anti-discrimination regulatory framework began to take shape in the UK in
the early 1970s with the passing of the Equal Pay Act, the Sex Discrimination Act and
the Race Relations Act. Comparable disability legislation did not follow until much
later with the Disability Discrimination Act 1995 with legislation on Sexual Orientation
(2003), Religion (2003) and Age (2006) following the European Directives on Equal
Treatment. Dickens (2007: 468) notes that, throughout its history, the development
of equality legislation has been subject to a tug of war between fairness and efficiency,
meaning that it has been introduced in very limited ways in the belief that restraint
was required to cushion employers, as far as possible, from potential adverse business
impacts of not discriminating. Apart from standing in contradiction to public policy
that claimed a ‘business case’ for equality, the problem with this approach is that the
legislation, as introduced, was in many cases not fit for purpose and, as well as having
minimal impact on efficiency, did little to tackle the multiple problems of discrimination
(see McKay, Chapter 1). The result is that most of the anti-discrimination legislation
has at some stage required amendments, resulting in ‘116 different acts of Parliament,
regulations, codes of practice and guidance’ (EHRC, Undated). Together this represents
a body of law that Hepple et al. (2000: 5) argue is ‘widely criticised for being outdated,
fragmented, inconsistent, inadequate, and at times incomprehensible’.
Calls for a review of the anti-discrimination legislation began to gain momentum
following the change of government in 1997. Academics, both from the Laws
(Hepple et al. 2000) and Industrial Relations (Dickens 1997, 2007) disciplines have lobbied
for radical change as have the leading equality bodies. In an insightful paper Dickens
(1997: 285) argued:
The current legislative approach in Britain centres on a predominantly private, individualised

model of sex and race discriminations law concerned with formal equality (equality of treatment
rather than outcomes). The main requirement is to desist from doing negative things, there is
no legal requirement to do anything to promote equality….
The Hepple et al. (2000) report called for a review of all of the equality legislation and
provides 53 detailed recommendations about how change could be achieved. The leading
claim of Hepple et al. (2000: xiii) is that ‘the present framework places too much emphasis
on state regulation and too little on the responsibility of organisations and individuals
to generate change’. Their recommendations for change include the public sector taking
a lead via the introduction of positive duties to promote equality and for a process of
negotiated change within organisations ‘… to allow the employer time to absorb the
costs of implementation…’ (ibid.: xv). Recommendation 24 calls for a single public sector
equality duty to cover race, gender, disability, age, sexual orientation, religion and for
persons with dependants.
Positive Duties – A New Direction

Not all of the recommendations of Hepple et al. (ibid.) were introduced, but the Stephen
Lawrence inquiry, which uncovered serious institutionalised race discrimination in the
Metropolitan Police Force, added impetus for the recommendations concerning public
sector equality duties to be adopted. Reflecting the seriousness of the Stephen Lawrence
Inquiry, the first of these duties, the Race Equality Duty (RED), was introduced in 2001
under the Race Relations (amendment) Act 2000. The second duty to be introduced was the
Disability Equality Duty (DED) in December 2006 as part of the Disability Discrimination
Act 2005 and the final duty, the Gender Equality Duty (GED), came into force in April
2007 as part of the Equality Act 2006. The most important point to note about the public
sector equality duties is that they are unlike any previous equality legislation in that
they do not provide additional rights for individuals but rather place responsibilities
on public authorities.1 In this respect they are considered to be a positive, proactive
approach to equality which does not depend on discrimination having already taken
place, thereby offering an additional and different approach to employment tribunals
and their associated difficulties for claimants (see McKay, Chapter 1). A second important
factor is that the duties require authorities to have ‘due regard’ in all of their public
functions to eliminate unlawful discrimination and harassment and to promote equality
of opportunity. In practice this approach is designed to ensure the mainstreaming of
equality issues and to counter the past criticisms that equal opportunities were confined
to specialist management functions and were not ‘owned’ by operational areas of public
authorities (for example, Jewson and Mason 1986; Rees 2005). Another distinguishing
1 There is a complex schedule for each duty of which authorities the respective duties apply. The duties also cover
voluntary or private sector organisations who undertake contracted out public functions.
The Road to Equality: Legislating for Change? 25
factor is that the duties cover public authorities both as employers and as service providers.
All of the duties adopt a similar format with a set of substantive ‘general duties’ placed on
public authorities to eliminate unlawful discrimination and harassment and to promote
equality of opportunity. The RED also places a general duty on authorities to promote
good relations between people of different racial groups. The general duties in relation
to DED include a duty to promote positive attitudes towards people with disabilities,
encourage participation in public life and to take into account reasonable adjustments
even where this may mean treating people with disabilities more favourably. The general
duties in the GED apply to women, men and transgendered people. Each equality duty
also contains a set of more ‘specific duties’ which are procedural requirements in relation
to the disadvantaged groups covered in each of the pieces of legislation. The specific duties
for the GED include a responsibility to consider objectives to address the causes of the
gender pay gap and to consult stakeholders, including trade unions, to determine gender
equality objectives. As with any law, the equality duties are only useful if they are also
enforceable. Given the conceptually different structure of the duties from previous anti-
discrimination legislation, enforcement mechanisms have had to take a different format.
The enforcement power for all of the equality duties now lies with the EHRC, created in
2007. If the EHRC deems that a public authority has failed to meet its responsibilities
under any of the duties it can first issue a compliance notice, giving the authority 28 days
to show how it has changed its practice to fall within the terms of the duties. A compliance
notice applies to both general and specific duties. If the public authority does not act
upon the compliance notice the EHRC can apply to the courts for a court order. If the
public authority still does not meet its responsibilities the court may find it in contempt
of court. A second method, involving an application to the High Court for judicial review,
is also available to the EHRC and other interested parties to challenge the practice of an
authority that is not considered to be meeting its responsibilities under the duties. These
enforcement mechanisms have not yet been fully put to the test by the EHRC, which in
itself offers some cause for concern. The equality duties offer an innovative approach to
equality legislation but they have not been without problems. As Fredman (2001) notes,
the success of the positive duties still hangs on convincing employers and managers
of the importance and value of equality. Early assessment of the first positive equality
duty on race found that engagement with the legislation was variable, particularly in
relation to progress on employment-related issues (Equal Opportunities Review, 2002).
The Audit Commission (2004) has similarly found an implementation gap between
policy and outcomes. Current operational concerns focus on the need to streamline this
legislation, and for further integration within the policy process. Some of the weaknesses
of the RED have been addressed in the later duties, particularly in relation to a greater
emphasis on participation of stakeholders and outcomes rather than achieving paper-
based procedures.
The Equality Act 2010 – All Change?

Despite their weaknesses, the public sector equality duties marked the first radical change
to anti-discrimination legislation in over 40 years and Fredman (2001: 146) argues that
they represent the ‘direction of the future.’ Most importantly, the duties have signalled
that a different approach to tackling discrimination is not only necessary but possible.
Perhaps the greatest hope for further and widespread legislative improvements for equality
at work has been pinned on a single Equality Act (Dickens 2007). The 2005 Labour Party
Manifesto, albeit on the last page, contained plans to formalise significant changes to the
equality legislation. The pledge included the drafting of a single Equality Act to ‘simplify’
and ‘modernise’ 40 years of complex equality legislation, during the 2005–2010 Parliament.
The Discrimination Law Review was established in 2005 to oversee the consultation
process and the Equalities Review was commissioned by the government to provide an
independent assessment. The Equalities Review (2007) recommended adoption of a single
positive equalities duty, and more integrated implementation strategies across equalities
areas. The Green Paper putting forward proposals for a single Equality Act was released for
consultation in June 2007 (Discrimination Law Review, 2007). The consultation document
is 187 pages in length. The longest section, Chapter 5, is dedicated to proposals to amend
the public sector equality duties. Although a great deal of work and resources were allocated
to the project, there were mixed feelings about its content. There are conceptual difficulties
in moving from legal and institutional structures originally designed to address separate
equality strands towards an approach that can challenge not only one dimensional
disadvantage, but also be applied to multiple forms and intersections of discrimination.
The method adopted has been largely one of integration (Durbin and Conley 2010). The
first phase of integration included the merger of the three existing equality bodies2 in 2007
to create the Equalities and Human Rights Commission. The creation of the new equality
body has been marred by the usual problems and power struggles associated with merger
(Peacock 2009). Second, the main proposal in relation to the equality duties was to combine
them into a single equality duty and to extend its coverage to other protected areas (age,
sexual orientation, religion and belief, gender re-assignment, pregnancy and maternity).
The move to simplify and extend equality legislation is widely supported by public
service organisations that are required to implement piecemeal equality legislation
through separate strategies. The Green Paper states that a significant number of public
authorities have already introduced integrated equalities frameworks (p. 85 para. 5.22).
However research has identified that integrated frameworks have been difficult to put
into practice. Page and Conley (2009) found that, whilst the complexity of managing six
rather than three separate equality strands within equality duty processes is the driver
for local authorities to develop integrated frameworks, in practice some equality officers
feared that, once integrated, the interests of some strands might dominate and others,
particularly gender, would be subsumed. Another concern was that the Green Paper was
silent in relation to some important principles established in the existing public sector
equality duties, such as involvement of stakeholders, the requirement to set equality
objectives; the requirement for impact assessments and the duty to consult with trade
unions. The uncertainty in relation to the status of impact assessments was a particular
concern. The separate equality duties require public authorities to conduct equality
impact assessments (EIAs) on their policies and practices to cover all of the proposed and
current activities of the authority to ensure that people from the protected strands are
not disadvantaged. Where an authority identifies a potential impact, it should give due
regard to modify the policy or practice (EOC 2006). Impact assessments are a tool that
essentially requires authorities to mainstream equality into all decision-making processes.
2 Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights
Commission (DRC).
They have been particularly useful for equality officers in local government to encourage
mainstreaming and to challenge poor practice or indifference (Page and Conley 2009).
Although two years in the making, the Green Paper produced by the DLR was met
by disappointment at its lack of ambition and vision for dealing with multiple forms of
discrimination. The consultation process that accompanied the Green Paper revealed a
great deal of disappointment with the proposals from key bodies concerned with equality.
The following extracts have been taken from responses to the Green Paper:3
The Commission regrets ... that the proposed scope of a new Equality Act, as reflected in the
Green Paper, falls far short of ministers’ stated ambitions when the DLR was established and
the expectations they had created for new legislation which is coherent, simple and derived
from fundamental principles. (Equality and Human Rights Commission undated)
... the Government’s commitment to review and simplify the law into a single Equality Act is
extremely welcome. However, we are concerned that in some places the consultation’s proposals
would weaken existing provisions, that in some parts of the document the intention is unclear,
and that in some parts there is a clear case for going further than is proposed. (EDF undated)
The Commission knows that if the current duties are replaced with a limited obligation to
take action only towards certain equality priorities then a swath of important public services
and law enforcement will proceed without any legal regard to race equality, or indeed when
race intersects with gender or disability issues. This consequence is clearly regressive and is
unacceptable. We don’t agree with the Government’s proposal to restrict the legal obligation
to only a limited set of priority equality objectives. (Commission for Racial Equality 2007)
The DLR seems to suggest that the current duties should be narrowed by requiring public bodies
to identify priority objectives and take proportionate action towards them instead of the current
requirement on public bodies to have ‘due regard’ to promote equality. We believe that it would
be a backward step to narrow the requirements on public bodies. (Thompsons Solicitors 2007)
Criticism of the Green Paper obviously elicited some concern on behalf of the
Government as the single Equality Act, due to be announced in the Queen’s Speech
in November 2007, was withdrawn until 2008. In the meantime there was a change of
government leadership and responsibility for the Equality Bill passed from Ruth Kelly to
Harriet Harman. The White Paper eventually had its first reading on 24 April 2009 and the
second on 11 May 2009. There were some improvements following the disappointment
of the Green Paper and some further innovative, and controversial, inclusions. Perhaps
the most controversial addition was the extension to permitted positive action in the
recruitment and selection of employees. This clause:
... permits an employer to take a protected characteristic into consideration when deciding who
to recruit or promote, where people having the protected characteristic are at a disadvantage or
are under-represented. This can be done only where the candidates are equally qualified, and
the clause does not allow employers to have a policy of automatically treating people who share
a protected characteristic more favourably than those who do not.4
3 All responses to the Green paper consultation can be found at: http://www.equalities.gov.uk/equality_bill/consultation_
responses/organisations_which_responded.aspx?idx=301&idxltr=C&menupage=292 [accessed 25 January 2011]
4 Part 11, Chapter 2, Clause 153.
This addition to the Bill was controversial because it moved away from the liberal,
symmetrical or sameness approach to equality that has underpinned previous legislation.
Equality legislation thus far had grasped tightly the principle that protected characteristics
could not be considered either positively or negatively in selection decisions of employers.
Only positive action to encourage under-represented groups to apply for posts was
permissible. The extension of positive action to selection does allow employers under very
limited circumstances and on a purely voluntary basis to move away from this principle.
The Bill also included a dimension of equality that goes beyond the concept of
protected characteristics by introducing a separate duty on public sector authorities, the
so-called socio-economic duty, which requires public authorities:
... when making strategic decisions such as deciding priorities and setting objectives, to consider
how their decisions might help to reduce the inequalities associated with socio-economic
disadvantage. Such inequalities could include inequalities in education, health, housing,
crime rates, or other matters associated with socio-economic disadvantage. It will be for public
authorities subject to the duty to determine which socio-economic inequalities they are in a
position to influence.5
It is important to note that the socio-economic duty does not introduce another
protected characteristic. There is no intention that people can be protected against
discrimination on the basis of their social class, but rather that socio-economic
disadvantage is related to the six established strands of discrimination. Therefore, in
considering socio-economic disadvantage when making decisions on policies or service
provision, public authorities can reduce potential negative impacts.
Despite these innovative inclusions, the details of the development of a single public
sector equality duty were partial. The Bill included only the provisions for the general
duties, and as such was rather vague on detail. The provision for specific duties was
allowed for in secondary legislation, giving Ministers of the Crown powers to impose
specific duties on public authorities. The government issued a consultation document
regarding the specific duties for the single public sector equality duty (GEO 2009). It is
clear from this document that the specific duties would in fact be far less specific than they
are currently in the separate duties. For example, the consultation proposes that public
authorities no longer be required to produce specific equality schemes. The justification
for this is that ‘preparing and publishing equality schemes as discrete documents was
burdensome and costly with little impact on outcomes’ (p. 20). The proposals are to
allow authorities to identify their own objectives as part of the core business planning
process. Given that the current long-term economic climate looks incredibly bleak for
public authorities, this proposal is somewhat worrying. These proposals also have a
knock-on effect for consultation of stakeholder groups. The DED and the GED currently
require authorities to consult with stakeholder groups and, in the GED, trade unions. The
consultation document plans for stakeholder participation were much weaker:
The current disability and gender duties require public authorities to involve disabled people/
employees, service users and trades unions when drawing up their schemes. We propose to
5 Part 1, Clause 1.
amend this, so that public authorities are required to consider how best to consult and involve
people from the protected groups when setting equality objectives, and reviewing progress.
(p. 82)
In their response to the consultation on the specific duties, the TUC (2009) highlighted
the importance of retaining the specific reference to trade unions contained in the GED
arguing:
The reference to trade unions in the gender duty has been immensely helpful in getting public
bodies to understand the important role trade unions can play in helping to engage the workforce
and achieve the organisational and cultural change that was intended when the equality duties
were introduced.
(p. 12)
A similar fate has befallen the requirement for authorities to produce equality impact
assessments. The consultation document again deferred to a more voluntarist approach to
assessing impact by arguing that a specific duty to do so is ‘burdensome and bureaucratic’
(p. 22). The emphasis has moved away from public authorities being required to complete
equality impact assessments on all of their policies and practices (EOC 2006: 37) to a
position in the single public sector equality duty where there is no legislative requirement
for public authorities to conduct impact assessments, but an expectation that impact
assessments will be carried out on ‘key policies and service delivery initiatives’ (GEO 2010:
18). In effect this means that a valuable tool for mainstreaming equality has been severely
weakened as not all policies and practices are subject to impact assessment. Similarly the
potential for stakeholder involvement is reduced because they will no longer be able
to insist on public authorities conducting equality impact assessments on anything not
considered by the authority to be a key policy or service delivery initiative.
Last, the consultation document proposed that the requirement to collect employment
data should not be expanded to the new strands of age, sexuality and religion and only
authorities with 150 or more employees be required to collect data on the established
strands exempting, for example, the majority of schools.
The results of the consultation published in a policy statement (GEO 2010) makes
interesting reading. It highlights that there was considerable disagreement on the form
the specific duties should follow, with employers’ bodies on the whole requiring less
prescription, whilst stakeholder groups required greater or equivalent levels of prescription
to that contained in the existing specific duties for race, gender and disability. Despite the
mixed response to the consultation, the policy statement does not deviate to any great
extent from the proposals in the consultation document, evident in the much repeated
phrase ‘We remain of the view that ...’ (pp. 12, 18, 22, 23).
Conclusion: The End of the Road?

Taken together, the proposals for the single Equality Act sent out a confusing message. In
one respect there are innovative attempts to address some of the failings of the existing
equality legislation and the intention of simplifying the existing web of legislation is
broadly welcomed. However the proposals for the single public sector equality duty
weaken one of the most innovative developments already made by invoking the familiar
arguments that describe existing equality measures as ‘burdens’ and ‘costs’. It would
appear that the new Act has not escaped the struggle between fairness and efficiency that
Dickens (2007) argues has dogged all previous equality legislation. The wrangling over
the content of the Equality Act 2010 was extensive. The slow progress of the Equality
Bill through the Parliamentary system was caused by amendments from both ends of
the political spectrum seeking either to strengthen weakened provisions or to limit or
withdraw some of its more innovative aspects. In addition the Royal Assent, gained on
8 April 2010, which made the Bill law coincided with an announcement of a General
Election where a change of political administration was expected and it was not clear
whether the Bill would make it through the Parliamentary process before Parliament was
dissolved. However much of the Act relies on secondary legislation to implement the
most controversial measures, which may or may not be enacted in the future depending
on the prevailing political ideology and strength of commitment to equality. Sadly it
would appear that the historic face-off between efficiency and fairness has prevented the
government from achieving the legislative innovation thought possible in 1997. One
cannot escape the feeling that the tendency for compromise that has postponed equality
for decades has won out again.
Addendum
Since writing this chapter the coalition government has decided not to bring in to force
the socio-economic duty, the provisions for gender pay gap reporting or the provisions
for dual discrimination claims. Seven other provisions are still under consideration. The
introduction of the specific duties in the Public Sector Equality Duty has been suspended
pending further consideration by the government.
References
Audit Commission (2004) The Journey to Race Equality, London: Audit Commission.
Commission for Racial Equality (2007) Response to the Discrimination law Review, ‘A Framework
for Fairness: Proposals for a Single Equality Act for Great Britain’, London: CRE.
Dickens, L. (1997) ‘Gender, Race and Employment Equality in Britain: Inadequate Strategies and the
Role of Industrial Relations Actors’, Industrial Relations Journal, 28:4, 282–291.
—— (2007) ‘The Road is Long – Thirty Years of Equality Legislation in Britain’, British Journal of
Industrial Relations, 45:3, 463–494.
Discrimination Law Review (2007) A Framework for Fairness: Proposals for a Single Equality Bill for
Great Britain, London: Women and Equality Unit.
Durbin, S. and Conley, H. (2010) ‘Gender, Labour Process Theory and Intersectionality: Une Liason
Dangereuse?’ in Thompson, P. and Smith, C. (eds) Working Life: Renewing Labour Process Analysis,
Basingstoke: Palgrave MacMillan.
EDF (undated) Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality
Bill for Great Britain, A response from the Equality and Diversity Forum (EDF), London: EDF,
available on: http://www.edf.org.uk/blog/?p=194 [accessed 10 March 2010].
EHRC (undated) http://www.equalityhumanrights.com/legislative-framework/equality-bill/summary-

of-our-response/ [accessed 22 January 2011].
EHRC (undated) Response to the Discrimination Law Review ‘A Framework for Fairness: Proposals
for a New Equality Bill for Great Britain’, London: Equality and Human Rights Commission.
EOC (2006) Gender Equality Duty Code of Practice England and Wales, Manchester: Equal Opportunities
Commission.
Equal Opportunities Review (2002) ‘Race Equality Work Needs to Focus on Outcomes’, Equal
Opportunities Review, Report 120.
Fredman, S. (2001) ‘Equality: A New Generation?’, Industrial Law Journal, 30:2, 145–168.
GEO (2009) Equality Bill: Making it Work. Policy Proposals for Specific Duties. A Consultation, London:
Government Equalities Office.
GEO (2010) Equality Bill: Making it Work. Policy Proposals for Specific Duties. Policy Statement, London:
Government Equalities Office.
Hepple, B., Coussey, M. and Choudhury, T (2000) Equality: A New Framework. Report of the
Independent Review of the Enforcement of UK Anti-Discrimination Legislation, Oxford: Hart
Publishing.
Jewson, N. and Mason, D. (1986) ‘Theory and Practice of Equal Opportunities Policies: Liberal and
Radical approaches’, Sociological Review, 34:2, 307–334.
Page, M. and Conley, H. (2009) Implementing the Gender Equality duty in Local Government: First Findings,
paper presented at the Equal Opportunities International Conference, Istanbul, July 2009.
Peacock, L. (2009) ‘EHRC Leadership Rocked by Three Resignations’, Personnel Today, 30 March.
Rees, T. (2005) ‘Reflections on the Uneven Development of Gender Mainstreaming in Europe’,
International Feminist Journal of Politics, 7:4, December, 555–574.
Thompsons Solicitors (2007) ‘Response to the Consultation – Discrimination Law Review – A
Framework for a Fairer Future: Proposals for a Single Equality Bill for Great Britain’, available at:
http://www.thompsons.law.co.uk/ltext/discrimination-law-review.htm [accessed 10 March 2010].
TUC (2009) Equality Bill: Making it Work. TUC Consultation Response to GEO Proposals for Specific
Duties, London: Trades Union Congress.
3 Dignity at Work:
chapter
The Law’s Engagement

with Bullying and
Harassment in the
Workplace
JACKIE JONES
Introduction
A gay man employed at the Church in Wales wins £37,000 after being bullied out of his
job in Coleg Trefeca in Brecon. His manager called him a ‘stupid poof’ and gave him
pink fairy toilet paper as a present. Inmates at a Leeds prison received £120,000 from the
Prison Service after suffering beatings and racial discrimination by prison officers. They
had been racially harassed and victimised. Conwy Council in Wales was ordered to pay
£10,000 to a family because it failed to deal with complaints against neighbours who
were harassing them. The family had bricks thrown through the windows, were racially
abused and their cars damaged. The family lived in housing association property and the
husband was disabled. A gay airport guard received £62,500 compensation after he was
called ‘batty boy’ and sexually harassed by a female colleague. Muslim City of London
workers won a multi-million pound out-of-court settlement for being sexually harassed,
racially and religiously discriminated against and being subjected to a sexual environment
in which clients would be taken to lap-dancing clubs, Jewish clients taken off their books
among other allegations. A culture of bullying and harassment in the kitchen of Harry’s
Bar in Mayfair led a waitress to win her sexual harassment and unlawful dismissal claim
worth £124,000. There were a series of incidences, including being pushed against a wall
and kissed on the neck by the chef. There has been much outcry over a lesbian soldier
being awarded £187,000 for sexual harassment by a male sergeant. There was a sustained
campaign of victimisation after rejecting his advances.
All of these snapshots took place within a six-month period in 2009. Bullying and
harassment at work take many forms and make headlines every day. They are a major
part of our working lives. Most people who suffer from this kind of treatment believe
they must resign or put up with it. Most never complain and never use the law as a
remedy. This chapter looks at how the law engages with workplace issues of bullying and
harassment. It is a legal overview, offering some analysis of aspects of both issues and
some thoughts on future directions. It cannot, within the space available, give a complete
picture. The law in this area is constantly evolving and fitting itself around the new
research that is being published in many countries around the world. That it is being, has
been and continues to be, led by action on an EU-wide scale is testament to the fact that
many countries have not developed domestic laws that are very sophisticated and that
are able to address the globalised market, let alone the pervasive institutionalisation of
the type of managerialism that is one of the main culprits of workplace or environmental
bullying and harassment. This is particularly the case in times of recession in which
women (more bullied and harassed than men) are often at the forefront of losing their
already marginal space within an organization (TUC 2009).
Bullying and Harassment at Work

Bullying is rife not just in UK workplaces, but in many countries around the world. The
International Labour Office report on workplace violence found that bullying is one of
the fastest growing forms of workplace violence (Chappell and Di Martino 2000). It has
been argued that it is a form of evil and torture (see Vickers (2002) for a particularly vivid
description of workplace bullying,). The definition of violence from the ‘Opinion on
Violence at the Workplace,’ adopted on 29 November 2001 by the Advisory Committee
on Safety, Hygiene and Health Protection at Work of the European Commission states:
Violence manifests itself in many ways, ranging from physical aggression to verbal insults,
bullying, mobbing and sexual harassment, discrimination on grounds of religion, race,
disability, sex or, in any event, difference and may be inflicted by persons both outside and
inside the working environment.
Despite this global phenomenon, there are few countries which have, up to now,
sought specifically to legislate to stop it. More often than not it is handled under
harassment laws. This is equally the case in the UK although the Employment Rights
Acts are often used as a legal vehicle.
The UK has a major bullying problem. It is often featured on the news, seen on TV
programmes and continually being ‘tackled’ in schools and the public sector. They are
right to do so as one study of UK workplaces uncovered that 10.6 per cent of the employees
had been bullied in the previous 6 months (Hoel and Cooper 2000). In another study,
approximately 90 per cent of reported cases involved managers bullying subordinates.
In addition, over 50 per cent of incidents of bullying were by females, leading one
author analysing this trend to state that ‘occupational success caus[es] a metamorphosis
into a bully’. (O’Donnell 1999). Bullying has been described as ‘a particularly insidious
form of counterproductive workplace behaviour’ with one study in the UK finding that
approximately one fourth of victims resigned voluntarily just to get away from the
violence (Meglich-Sespico et al. 2007). Bullying is a specific form of harassment, usually
developing gradually over time, with a cumulative effect that entraps the victim (Peyton
2003: 8). One definition of bullying developed by the former Manufacturing Science and
Finance (MSF) union (now part of UNITE) is:
D i g n i t y a t Wo r k 35
Persistent, offensive, abusive, intimidating, malicious, or insulting behaviour, abuse

of power or unfair penal sanctions, which makes the recipient feel upset, threatened,
humiliated or vulnerable, which undermines their self-confidence and which may cause
them to suffer stress.
(Peyton 2003: 38)
Bullying takes many forms. Some of the most common include: name calling in
public, using a scapegoat by blaming the party concerned, physical abuse, increases in
work targets, moving the individual without support. In short, it aims to undermine
your dignity as a human being (Bonafons et al. 2008, no page reference available). The
effect on individuals who have been bullied or harassed can include an increase in stress,
mental health issues, sickness absence, lack of progress in work targets, withdrawal from
colleagues, even suicide (Harvey et al. 2009: 27; Vickers 2002). It is in this context that
similarities between intimate partner violence and workplace bullying and harassment
have been identified. For example, the power differential between employer (perpetrator)
and employee (victim) plays a significant role, making it difficult for the employee to
step out of the situation for fear of losing income, and so on, as well as the psychological
and physical effect on the victim both at work (performance influencing) and at home
(relationship influencing). This describes not only the primary form of bullying by
(possibly) a colleague but also the secondary form of bullying through organisational
policies and lack of clear legal remedies (Meglich-Sespico et al. 2007: 34). So when we
spend a vast amount of time going to, being at, and leaving work, not to mention
thinking about work when not physically at work, suffering violence mentally, physically
and/or physiologically is bad for all in society (Mayhew et al. 2004). That is why it is
important to take the situation out of the hands of those most affected and treat it as an
organisational issue.
Until relatively recently, harassment was seen as a private matter that just happened
to take place at work. Sexual banter, racial jokes, comments about not being able to read,
for example, were regarded as a normal part of everyday workplaces – quite acceptable
or at least something one put up with. If someone took offence they must be sensitive
and as the workplace is for all workers, the ‘sensitive ones’ just had to take it or leave.
The legal concept of harassment (in particular sexual harassment) did not materialise
in the UK until the US jurisprudence and legal theory was established in the 1970s
(MacKinnon 1979, 1989; MacKinnon and Siegel 2004). So, for example, the struggle
to have sexual harassment seen as sex discrimination was more successful in the USA
than in many EU member states until this century. Indeed, most member states had no
national laws recognising harassment until the EU enacted Directive 2002/73/EC of the
EP and the Council amending the equal treatment Directive 76/207/EEC which required
the recognition of harassment as a violation of personal dignity and thus violence.
The EU took the lead in proposing harassment legislation as early as 1988 when the
Commission funded a research report into the pervasiveness of sexual harassment of
women in the workplace (Rubenstein, The Dignity of Women at Work, Commission of the
European Communities, 1988; see generally Zippel 2006). It concluded, inter alia, that
sexual harassment in the workplace was endemic and affected the dignity of all women
at work. The main outcome of the report and current law is the emphasis in all forms of
harassment law on the lack of respect for the dignity of a person as a woman, as a black
person, as a transsexual, as a person with a disability, as a Jew, and so on (Monaghan 2007).
Thus there has been a long struggle to make lawmakers accept the connection between
being harassed (and bullied) at work and marginalisation within an organisation for
belonging to a ‘minority’ or ‘protected’ group as well as the dynamics of workplace
progression tactics.
The Law’s Response to Harassment at Work

Originally only racial and sexual harassment were recognised by the law in UK workplaces.
They were seen as forms of direct discrimination where the conduct amounted to less
favourable treatment and there had been detriment (Sex Discrimination Act 1975 and Race
Relations Act 1976). The main problem with proving any form of direct discrimination
under the current law is the requirement for a comparator and proving that you have
been treated less favourably because of (for example) your sex (Samuels 2004). That is to
say, one has to compare oneself to another person similarly situated of (for example) the
opposite sex; as a result of that treatment one suffered a detriment. Thus it was relatively
easy to come up with defences to sexual and racial harassment claims. For example,
putting semi-pornographic calendars up in the workplace might have offended as many
men as women thus women were not treated less favourably than men (Stewart v Cleveland
Guest (Engineering) Ltd [1996] ICR 535). Clearly this situation was unsatisfactory as there is
a difference: the calendar may well offend men but it does not undermine their dignity as
men (Monaghan 2007: 347). In ‘early’ cases this type of analysis, looking at the violation
of a person’s dignity, was lacking. It was not until a freestanding anti-harassment law was
enacted that this type of situation was rectified. It had become apparent that the use of
direct discrimination with the requirement of a comparator and detrimental treatment
was a blunt instrument, disabling more claims than it enabled, especially as the focus was
clearly on what the perpetrator thought and the ‘sensitivity’ of the person targeted. Now
there is a plethora of different statutes and regulations that can be used in order to obtain
a remedy for bullying and harassment. In addition to provisions under the Equality Act
2010, these include:
• Health and Safety Act 1974;

• Employment Protection (Consolidation) Act 1978;
• Management of Health and Safety at Work Regulations 1992;
• Criminal Justice and Public Order Act 1994;
• Employment Rights Act 1996;
• National Minimum Wage Act 1998;
• Working Time Regulations 1998;
• Data Protection Act 1998;
• Protection from Harassment Act 1997;
• Public Interest Disclosure Act 1998;
• Crime and Disorder Act 1998;
• Crime and Security Act 2001; and
• Employment Act 2002.
These cover both civil and criminal remedies and include compensation, injunctions,
employment rights (dismissal) and discrimination. All the regulations regarding
discrimination, actions under the common law of negligence and contract law as an
implied term of the contract of employment of health and safety duty of the employer
and trust and confidence are also available. Compensation is the most common form
of remedy as it is awarded post facto once the harm has already been done. It is highly
unusual for an ex-employee bullied or harassed out of the workplace to wish to return to
that environment. There is no upper limit on the amount of compensation available for
discrimination claims (see below). Two particular areas of law’s engagement with bullying
and harassment will be dealt with in some detail here; the Protection from Harassment
Act in which the law tries to deal with persistent forms of harassment by using both the
criminal and civil law, and the free-standing harassment laws available for all strands
of equality. The emphasis is on the workplace, although the law does not necessarily
discriminate between places of work and elsewhere.
Protection from Harassment Act 1997

The Act covers all forms of harassment wherever it occurs and can also be used to cover
workplace harassment and bullying despite initial uncertainty (see DPP v Moseley (1999)
The Times 23 June; Majrowski v Guys and St Thomas’ NHS Trust [2006] UKHL 34). It does
not define harassment with any precision (Conaghan 1999). Section (1) states that ‘a
person must not pursue a course of conduct which amounts to harassment of another,
and which he knows or ought to know amounts to harassment of the other’. Section
(1A) covers a situation where the harassment is of more than one person and where the
harasser is trying to persuade another not to do something he legitimately is entitled to
do or to do something that he is not under any obligation to pursue. Breach of either
of these sections is a criminal offence punishable with up to six months imprisonment
(s 2 of the Act) and could also constitute a tort for which damages can be awarded or
an injunction put in place (ss 3 and 3A). A breach of an injunction under the Act is
punishable with up to five years imprisonment thus making it a rather powerful weapon
if used. The Act is a prime example of where the civil law and criminal law blur – but not
in a good way (Conaghan 1999). From the point of view of the victim of harassment the
option to ask for a criminal law remedy as opposed to a civil law remedy may be difficult.
Research on domestic violence suggests that where the option for a civil law remedy
is available, the woman will usually opt for it as she does not want to ‘criminalise’ her
partner and probably the father of her children. Given this fact, it is difficult to envisage
many workplace colleagues using such a draconian measure against a fellow employee.
The Act specifies that there must a ‘course of conduct’. That requirement makes it
more stringent than under discrimination law legislation which can be triggered with a
single incident. Under the 1997 Act a course of conduct is defined in s 7(3) as involving
‘conduct on a least two occasions.’ However, where there has been a single event, the
claimant can apply for injunctive relief (civil remedy, not criminal) where ‘an actual or
apprehended breach of section 1 may be subject of a claim in civil proceedings’ (s 3(1)).
Course of conduct means at least two incidents not too far apart in time unless there
is clear evidence that they constitute a course of conduct (DPP v Lau [2000] The Times
29 March). This is a matter of evidence before the court/tribunal. The Act is ‘reserved’
for more serious forms of harassment and, because it is reactive law-making, offers less
potential for claims of workplace harassment. Clearly the requirement of a course of
conduct is a deterrent to most situations that start with what seems like ‘trivial’/small
incidents that one may think are one’s imagination (arguably the bully’s best weapon). It
is only really when they escalate that the law is engaged in a meaningful way.
Harassment, Discrimination Law and a Freestanding Claim

The coverage of harassment law has been described as ‘perhaps one of the most successful
elements in the move to codify all the major heads of discrimination’. (Smith and Thomas
2008: 274). With the enactment of the Race Directive (2000/43/EC), the Equal Treatment
Directive (2002/78/EC) for sex discrimination and the Framework Employment Directive
(2000/78/EC) for discrimination on other grounds (although slight differences exist in
some respects) a freestanding offence of harassment was specifically created. The Equality
Act now encapsulates the claim for age, disability, gender reassignment, race, religion
and belief, sex and sexual orientation in sections 26 and 40. The sections do not cover
maternity/pregnancy or marriage/civil partnership. Section 26 refers to the general
situation of harassment, whereas section 40 covers harassment by an employer. Section
26 reads:
1. A person (A) harasses another (B) if –

a) A engaged in unwanted conduct related to a relevant protected characteristic, and
b) the conduct has the purpose or effect of –
i) violating B’s dignity, or
ii) creating an intimidating, hostile, degrading, humiliating or offensive
environment for B.
2. A also harasses B if –
a) A engages in unwanted conduct of a sexual nature, and
b) the conduct has the purpose or effect referred to in subsection (1)(b).
3. A also harasses B if –
a) A or another person engages in unwanted conduct of a sexual nature or that is
related to gender reassignment or sex,
b) the conduct has the purpose or effect referred to in subsection (1)(b), and
c) because of B’s rejection of or submission to the conduct, A treats B less favourably
than A would treat B if B had not rejected or submitted to the conduct.
The Act talks about unwanted conduct that is ‘related to’ a protected characteristic.
This moves the emphasis away from the reason for the harassment. It also means that
employees will be able to complain of behaviour that they find offensive even if it is
not directed at them. In addition, the person affected need not possess the relevant
characteristic themselves. The key to making out a claim is whether or not the unwanted
conduct complained of has the effect of violating B’s dignity or creating an intimidating
environment, and so on, as defined within the Act. Subsection (4) guides the court as to
what to take into account when making a decision as to the effect on B of A’s conduct:
the perception of B; the other circumstances of the case; and whether it is reasonable for
the conduct to have that effect. The judgment of whether or not conduct is unwanted
and what effect it may have on B is a matter of fact not law and will be left to a tribunal/
jury to determine based on the facts presented at tribunal. This can be, and frequently
is, a difficulty: what is unwanted to one may not be unwanted to another. It is therefore
important for the individual to make clear that the conduct is unwanted by telling the
person concerned or getting a representative to tell the person. Working life is rarely
this straightforward however. Thus most employers have workplace policies that direct
employees as to normally acceptable behaviour and unacceptable behaviour. Having
bullying and harassment policies in place is an important aspect of employer responsibility.
In fact, as of 1999 around 72 per cent of workplaces in the UK had a harassment policy
(Zippel 2006: 110) and as of 2004 around 82 per cent had an anti-bullying policy
(Chartered Institute of Personnel and Development (CIPD), Managing Conflict at Work,
2004), as well as a counselling service. Even where the conduct complained about is
not explicitly mentioned in the workplace policy, there is an element of common sense
that needs to be applied. So, for example, in Reed v Stedman [1999] Industrial Relations
Law Reports (IRLR) 299, the Employment Appeal Tribunal held that a sexually suggestive
remark and attempt to look up the complainant’s skirt was sexual harassment.
It is now clearly established that there need not be more than one incident that violates
a person’s dignity for it to amount to unwanted conduct (Reed v Stedman [1999] IRLR 299).
If there is more than one incidence then a tribunal will have to make a determination
based on all the facts and not just look at each individual incident in isolation to decide
if there is conduct which has the effect of creating an intimidating environment, and so
on. In this way it can give effect to the realistic situation where ‘each successive episode
has its predecessors, that the impact of the separate incidents may accumulate’ (Driskel
v Peninsular Business Services Ltd (2000) IRLR 151). It is argued that this latter situation is
one where positive duties (see Conley, Chapter 2) can play a leading role in prevention.
There is no requirement for the harassment to be intentional, rather the conduct
must have the purpose or effect of amounting to harassment as outlined above. If
there is no manifested intention then the conduct is only seen as having the effect of
harassing the claimant if, taking into account all the circumstances of the case, including
the claimant’s perception of the conduct, it should reasonably be considered as having
that effect. This is a reasonableness test (or reasonable consideration test) – subjective/
objective in terms of assessing if the conduct complained of would have the effect of
creating an intimidating environment for a reasonable person (objective part of the test)
but the particular perception of B will be taken into account (subjective part of the test)
(see Driskel v Peninsula Business Services Ltd [2000] IRLR 151). It is for the court/tribunal to
decide whether this test is made out. The burden of proof shifts (ss 136 and 137, Equality
Act 2010) in the same way as for direct discrimination, meaning that if the complainant
proves facts from which a court/tribunal could conclude, in the absence of an adequate
explanation, that the person complained of has harassed another, then the court/tribunal
must uphold the complaint unless the person complained of can prove otherwise (see
Monaghan 2007 Chapter 14). This shifting of the burden is significant because usually
the person who has been harassed or bullied is no longer at the organisation and has no
access to files, workmates, emails, and so on. Disproving discrimination is easier for the
organisation than proving discrimination is for individuals, bearing in mind the disparity
in power relations.
The decision in Coleman (Case C303/06 S Coleman v Attridge Law and Steve Law;
Waddington 2007) has been confirmed in that harassment by association is also covered
in the case of all protected grounds (except maternity/pregnancy and marriage/civil

partnership). Thus where there is conduct that amounts to harassment on the grounds
that the person one is associated with is believed to be (for example) gay (C), then B can
take a case of sexual orientation harassment by association. The crucial aspect of ‘on the
grounds of’ in all harassment cases is the ability of B to prove that either it has the purpose
or effect of violating someone’s dignity or the unwanted conduct was for the purpose of
creating an intimidating, hostile, degrading, humiliating or offensive environment for
the person concerned. For example, this would include putting a calendar of naked men
up on the wall of an open-plan workplace when just the week before it was discussed as
being offensive. A ‘defence’ of ‘just a joke’ will in these circumstances not be acceptable.
Section 40 Equality Act covers third party harassment – by an employer, whether
B is employed by him/her or has applied for employment. A will be held liable for
harassment where a third party harasses B in the course of her employment with A and
A has failed to take such steps as would have been reasonably practicable to prevent the
third party from doing so. The ‘three strikes rule’ known in sexual/sex harassment has
been extended to cover all grounds (except, again, maternity/pregnancy and marriage/
civil partnership). This means that A must know that B has been harassed on at least two
occasions by a third party during her employment with A. It is not material whether the
third party is the same or a different person and need not be employed by A. Thus the
provision covers employers, fellow employees and equally customers and extends from
the workplace to, for example, after work social gatherings and training days. This latter
form of harassment has been increasing in recent years and is a difficult area to police.
However, once an employee makes the employer aware of harassing behaviour on the
part of other employees or customers, the employer is fixed with knowledge which means
the employer is under an obligation to take action as long as there has been a course of
conduct. The action(s) to be taken should be laid down in the workplace harassment
policy (EOC v Secretary of State for Trade and Industry [2007] EWHC 483).
Outcomes: Awards of Compensation

In Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871, para. 65, the
Court of Appeal laid down guidelines for tribunals in assessing the damages that should
be awarded in cases of racial or sexual harassment. These same guidelines apply to other
forms of workplace harassment. Aggravating features will significantly affect the level of
damages awarded:
The top band should normally be between £15,000 and £25,000. Sums in this range should
be awarded in the most serious cases, such as where there has been a lengthy campaign of
discriminatory harassment on the ground of sex or race … Only in the most exceptional case
should an award of compensation for injury of feelings exceed £25,000.
The middle band of between £5,000 and £15,000 should be used for serious cases, which
do not merit an award in the highest band.
Awards of between £500 and £5,000 are appropriate for less serious cases, such as where
the act of discrimination is an isolated or one-off occurrence. In general, awards of less than
£500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper
recognition of injury to feelings.
It is common for employees to leave employment and claim constructive dismissal.

The level of compensation awarded by courts or in out-of-court settlements have been
relatively high, depending on the presence or absence of any aggravating features (for
example, multiple discrimination or length of bullying): £28,000–£1 m and higher. This
also includes suffering from stress, trauma, industrial and personal injury, whistle-blowing,
negligence and injury to feelings as a result of being bullied at work.1 Stress-related claims
have been on the increase year on year since the first case in 1995 (Walker v Northumberland
CC; TUC 1998). This is a growing area were large pay-outs can be obtained if the liability
of the employer for failing to take action over a protracted period of time can be proven.
That is why the reaction to successful claims of bullying with large pay-outs has led
many more employers to negotiate dignity at work policies with the unions. Having
these policies in place is evidence that can be used by the employer in any tribunal/court
to evidence that they will not tolerate bullying or harassment by employees – regardless
of their position. Having a dignity at work policy which covers both harassment and
bullying obviously does not exempt employers from liability but spreads the burden of
ensuring a non-violent workplace amongst all employees, rather than making it purely
a management issue. Unions can and do play a major role in ensuring the policy is
enforced and training provided to all employees, including managers. Where a dignity at
work policy has been negotiated it becomes harder to make a successful claim. In other
words, arguably the burden of proof will be higher on the employee to prove bullying or
harassment, despite the burden of proof shifting.
Current Trends
It is clear that the law’s engagement with bullying and harassment has changed
perspectives. It has been agued that harassment regulation can ‘be justified in accordance
with the liberal harm principle by citing specific mental and psychological harms.
These harms can be represented as individual because they are ways of interfering with
the well being and autonomy of individuals.’ (Bamforth et al. 2008: 449). However,
there has been a clear development in the philosophy underlying the legal provisions
(both soft and hard law), reflecting the evolution from a pure liberty point of view
(protection of dignity of the individual) to a gradual focus on equality (a right based
on symmetrical comparison) (Baer 2004: 582), and I would argue an eventual amalgam
of the two into positive duties that reflect the difficulties of rights enforcement both in
law and in the workplace to shift the focus away from the individual employee to the
working environment.
Occupational stress has been recognised as one of the features of workplace
organisations. The stress is exacerbated by the fact that in this country we have the
individual litigation model. That is to say, normally, individual workers must take
cases and no form of class action is possible. This is an unsatisfactory situation for
several reasons. Framing the law on harassment and bullying in terms of dignity of the
individual magnifies this stress because it relies on individual workers making the case
that they have been bullied or harassed by a manager’s behaviour rather than focusing
on (offensive) behaviour that is being accepted in the workplace. It has been pointed out
1 See www.bullyonline.org/action/caselaw.htm [accessed 25 January 2011.

that stress felt by individuals who believe they have been bullied or are being harassed
‘pathologises’ the individual by blaming her for feeling a particular way. ‘There is
something wrong with her/him if s/he feels harassed.’ ‘She is so sensitive.’ These attitudes
do not serve to address the situation, having the effect of leading to more pressure and
stress, thus dissuading individuals from taking action to alleviate the situation. This
in turn permits the workplace to continue to be a hostile environment (Thompson
2003: 206; Vickers 2002). The same may be said of unregulated speech, drawings and
writing in the workplace and may lead to the continuation of job segregation. That is
because rampant harassment and bullying ‘create[s] a serious disincentive for women
[transsexuals, disabled persons, and so on] to enter and remain in non-traditional jobs’
(Schultz 1990; Koppelman 1996). This is where the issue of human rights protections
is most relevant. One person’s freedom of speech or action is another’s discriminatory
practice. Thus society and business is in a situation where it has to make a choice as
to which takes priority. It is in this decision that we can see the importance, or lack
thereof, of equality and dignity. If we are to change the workplace these issues need
to be addressed. The critical mass theory may lead to the de-sexualisation and so on
of the workplace in which respect and dignity can be fostered and where bullying and
harassment have no place. That would mean that the employers will have to accept the
way women, transsexuals, gays, lesbians, disabled, black, and other people are, even if
they are regarded as more sensitive, more emotional or not (Koppelman 1996: 254), or
they have caring responsibilities which require the worker to physically take time away
from the workplace, but not necessarily from work per se. We still have some way to go
on this issue.
If one accepts that the elimination of the causes of workplace violence, including
bullying and harassment, are the responsibility of the employer then the type of
management style prevalent in the UK needs to change. The impact of managerialism,
long-hours culture, accountability, blame culture and a climate of redundancies all
create an atmosphere in which bullying and harassment are able to flourish despite legal
regulation. So, for example, the response from many managers to problems of production
in the workplace is to bring in more managers to deal with the issue or to re-structure
(similar to the frenzied law-making we have seen over the last 13 years from a Labour
government) (Pockett 2008: 183).
As with most issues, once the true cost of a problem becomes more apparent more
action is forthcoming (Van der Vleuven 2007: 164–167). According to the Chartered
Institute of Personnel and Development (CIPD) there are direct and indirect costs:
Conflict at work costs employers nearly 450 days of management time each year – equivalent
to the time of two managers full time – and almost 4% of grievance and disciplinary cases are
related to bullying or harassment incidents.
(CIPD 2004, cited in Stephens and Hallas 2006: 19–20)
On average 12 days a year are spent on preparing for employment tribunal cases, not
to mention the actual cost of defending a case before a tribunal. The CIPD report gives
the costs to employers of tribunals as shown in Table 3.1.
Table 3.1 Average employment tribunal costs to employers
Costs UK average (£)

Settling out of court 2,063
Paying compensation because of tribunal loss 650
Legal advice 3,021
Recruiting new staff 1,750
Source: CIPD 2004.
By 2007 average annual costs associated with employment tribunals were almost
£20,000 per organisation (CIPD 2007). Costs have continued to rise due to levels of awards
as well as the fact that there is no upper limit on the amount of compensation available
for a successful discrimination law case (see headlines above). These are direct costs.
Indirect costs can be just as or even more expensive for an organisation. Costs include,
sickness absence, work decrease, increased labour turnover, reduced customer satisfaction
among others (Stephens and Hallas 2006: 20–22). Cost analysis also affects law-making.
Thus as a result of ever increasing awards of compensation because of environmental
bullying and harassment and the consequent occupational stress the law is starting to
formulate its strategy around defining bullying and harassment as hate crime.
Criminalising Bullying and Harassment in the Workplace

The development of legislation on hate crimes is significant as it recognises the aggravation
of an offence by prejudice on grounds of race, sex, disability, sexual orientation or
transgender identity at the sentencing stage, increasing the length of sentence to reflect
the severity of the prejudice manifested. The use of hate crime in the workplace and
beyond as a deterrent criminal law measure can be used to force employers to fulfil their
obligations to provide workers with a safe place to work. Indeed, the Crime and Security
Act 2001 (amending the Crime and Disorder Act 1998) already created the offence of
religiously aggravated harassment. So where there is hostility, violence and harassment
based on a person’s religious affiliation this can be criminally punished as well as providing
a remedy in unlawful harassment against the employer (see generally Macdonald 2004:
124 but note that some of the law has been updated). Arguably it was not until criminal
law measures were enacted in relation to health and safety at work that employers really
sat up and took notice. The current trend therefore is towards shifting responsibility for
violence in the workplace away from the employee to the employer who is more able
to both police and create a violence-free workplace. Related to this is the enactment in
section 124 of the Equality Act 2010 which permits an employment tribunal to make
recommendations to a change in the organisational behaviour from which a successful
discrimination case has been made out. This would go some way in helping others affected
by organisational practices which amount to bullying and harassment but will not help
the individual who won the case.
Conclusion: Shift to Organizational Responsibility

The shift in focus in the law to organisational structures, policies and practices is an area
in which positive duties can be useful. Here the idea of positive duties goes further than
the existing public sector duties. As Fredman argues, the state has a duty to positively
promote anti-discrimination, dignity and liberty wherever the individual citizen finds
herself. That includes the workplace. Human rights law can be used as an instrument to
proactively change the working environment by shifting the burden on the employer
to have a zero-tolerance zone for bullying and harassment, backed up by penalties for
breach. The shift requires all parties to work together collectively to genuinely achieve
change (Fredman 2009). That may seem like an ideal to strive for, rather than a realistic
goal. Nevertheless, it is advisable for all workplaces to have an up-to-date dignity at
work policy for both bullying and harassment that includes procedures for investigating
complaints, counselling services for victims, effective remedies for addressing complaints,
disciplinary procedures against the perpetrator, and the availability of transferring to
another part of an organisation as well as effective strategies for addressing any negative
cultural behaviour. Thus the combination of positive actions on the part of all in the
workplace, backed up by effective laws can make our extensive time at work a much more
positive experience.
References
Adams, A. and Crawford, N. (1992), Bullying at Work – How to Confront and Overcome It, London:
Virago.
Addison, A. (2007), Religious Discrimination and Hatred Law, Abingdon: Routledge Cavendish.
Baer, S. (2004), ‘Dignity or Equality? Responses to Workplace Harassment in European, German and
US Law’, in MacKinnon, C. and Siegal, R.B., Directions in Sexual Harassment Law, London: Yale
University Press.
Baker, C.N. (2008), The Women’s Movement against Sexual Harassment, Cambridge: Cambridge
University Press.
Bamforth, N., O’Cinneide, C. and Malik, M. (2008), Discrimination Law: Theory and Context, Text and
Materials, London: Sweet and Maxwell.
Becker, G.S. (1957), The Economics of Discrimination, Chicago: Chicago University Press.
Blanck, P. and Schartz, H.P. (2003), ‘Studying the Emerging Workforce’, in Herr, S.S., Gostin, L.O.
and Koh H.H., The Human Rights of Persons with Intellectual Disabilities: Different but Equal, Oxford:
Oxford University Press.
Chappell, D. and Di Martino, V. (2000), Violence at Work, 2nd ed. Geneva: International Labour
Organisation (ILO).
Chartered Institute of Personnel and Development (2004), Managing Conflict at Work: A Survey of the
UK and Ireland, London: CIPD.
Chartered Institute of Personnel and Development (2005), Bullying at Work: Beyond Policies to a
Culture of Respect, London: CIPD.
Chartered Institute of Personnel and Development (2007), Managing Conflict at Work, London: CIPD.
Chunn, D.E., Boyd, S.B. and Lessard, H. (eds) (2007), Reaction and Resistance: Feminism, Law, and
Social Change, Vancouver: University of British Columbia Press.
Conaghan, J. (1999), ‘Enhancing Civil Remedies (Sexual) Harassment: s3 of the Protection from
Harassment Act 1997’, Feminist Legal Studies, 7: 203–214.
Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great
Britain (2007), Department of Communities and Local Government, London: HMSO.
Fredman, S. (2002), Discrimination Law, Oxford: Oxford University Press.
—— (2009), Transforming Human Rights: Positive Duties Positive Rights, Oxford: Oxford University Press.
—— and Spencer, S. (2003), Age as an Equality Issue: Legal and Policy Perspectives, Oxford: Hart
Publishing.
Fudge, J. and Owens, R. (eds) (2006), Precarious Work, Women, and the New Economy, Oxford: Hart
Publishing.
Hakim, C. (2004), Key Issues in Women’s Work (2nd ed.), London: Glasshouse Press.
Harvey, M., Treadway, D., Thompson Heames, J. and Duke, A. (2009), ‘Bullying in the 21st Century
Global Organization: An Ethical Perspective,’ Journal of Business Ethics, 85: 27–40.
Hoel, H. and Cooper, C.L. (2000), Destructive Conflict and Bullying at Work, Manchester: University of
Manchester Institute of Science and Technology.
Kennedy, H. (2004), Just Law: The Changing Face of Justice – And Why it Matters to us All, London:
Chatto & Windus.
Koppelman, A. (1996), Antidiscrimination Law & Social Equality, New Haven: Yale University Press.
McColgan, A. (2005), Discrimination Law: Text, Cases and Materials (2nd ed.), Oxford: Hart
Publishing.
Macdonald, L.A.C. (2004), Equality, Diversity and Discrimination, London: Chartered Institute of
Personnel and Development.
MacKinnon, C.A. (1979), Sexual Harassment of Working Women, New Haven: Yale University Press.
—— (1989), Towards a Feminist Theory of State, New Haven: Yale University Press.
—— and Siegel, R.B. (2004), Directions in Sexual Harassment Law, New Haven: Yale University Press.
Mayhew, C., McCarthy, P., Chapell, D., Quinlan, M., Barker, M. and Sheehan, M. (2004), ‘Measuring
the Extent of Impact from Occupational Violence and Bulling on Traumatised Workers’, Employee
Responsibilities and Rights Journal, 16: 117–134.
Meglich-Sespico, P., Farley, R.H. and Erdos Knapp, D. (2007), ‘Relief and Redress for Targets of
Workplace Bullying’, Employee Responsibilities and Rights Journal, 19: 31–43.
Monaghan, K. (2007), Equality Law, Oxford: Oxford University Press.
O’Donnell, T. (1999), ‘The Sweat of the Brow or the Breaking of the Heart?’, in Morris, A. and
O’Connell, T. (eds), Feminist Perspectives on Employment Law, London: Cavendish Publishing.
Paoli, P. (2000), Violence at Work in the European Union Recent Finds, Dublin: European Foundation for
the Improvement of Living and Working Conditions.
Peyton, P.R. (2003), Dignity at Work: Eliminate Bullying and Create a Positive Working Environment,
Hove: Brunner-Routledge.
Pitt, G. (2007), Employment Law (6th ed.), London: Sweet & Maxwell.
Pockett, P. (2008), ‘Human Service Professionals, Violence and the Workplace’, in Fawcett, B. and
Waugh, F. (eds) Addressing Violence, Abuse and Oppression: Debates and Challenges, Milton Park:
Routledge.
Samuels, H. (2004), ‘A Defining Moment: Feminist Perspective on the Law of Sexual Harassment in
the Workplace in the Light of the Equal Treatment Directive’, Feminist Legal Studies, 12: 181–211.
Schultz, V. (1990), ‘Telling Stories About Women and Work: Judicial Interpretations of Sex Segregation
in the Workplace in Title VII Cases Raising the Lack of Interest Agreement’, 103 Harvard Law
Review, 1749, at 1833.
Smith, I. and Thomas, G. (2008), Employment Law, Oxford: Oxford University Press.
Stephens, T. and Hallas, J. (2006), Bullying and Harassment: A Practical Handbook, Oxford: Chandos
Publishing.
Strebeigh, F. (2009), Equal: Women Reshape American Law, New York: WW Norton & Co.
Thompson, N. (2003), Promoting Equality: Challenging Discrimination and Oppression (2nd ed.),
Basingstoke: Palgrave MacMillan.
TUC (1998), Trade Union Trends: Focus on Union Legal Services, London: Trades Union Congress.
TUC (2009), Women and Recession, London: Trades Union Congress.
Van der Vleuven, A. (2007), The Price of Gender Equality, Aldershot: Ashgate.
Vickers, L. (2002), Freedom of Speech and Employment, Oxford: Oxford University Press.
Waddington, L. (2007), ‘Protection for Family and Friends: Addressing Discrimination by Association’,
Anti-Discrimination Law Review, 5: 13–21.
Zippel, K.S. (2006), The Politics of Sexual Harassment, Cambridge: Cambridge University Press.
4 The Law Relating to
chapter
Pregnancy and
Maternity Leave
GRACE JAMES
Introduction
Pregnancy-related discrimination has been described as ‘one of the most hidden and
damaging forms of workplace injustice’ (EOC 2005), yet only relatively recently has it been
specifically included in the text of the Sex Discrimination Act 1975 (SDA) at S3A and S6A.
Prior to this, litigants could only draw on the plethora of case law that acknowledged less
favourable treatment on the grounds of pregnancy, or a reason connected to pregnancy
(such as being absent on maternity leave), as sex discrimination contrary to the Act. A
brief outline of the scope and nature of this type of discrimination and a history of the
development of the law are provided below (see below, ‘Pregnancy-Related Discrimination
in the UK’, and ‘Pregnancy Discrimination as Sex Discrimination’) At its core though, this
chapter explores the potential and limitations of anti-discrimination law provisions to
address this type of injustice. Then, ‘Key Issues’ will highlight the main boundaries of the
legal protection available and, in doing so, reveals the limits of the equality model as a
method of tackling this type of discrimination.
Pregnancy-Related Discrimination in the UK

It is estimated that almost half of pregnant workers or those on maternity leave will
experience some form of discrimination as a result of their pregnancies, and that every
year some 30,000 women are dismissed, made redundant or leave as a result of some kind
of detrimental treatment at work as a result of pregnancy or childbirth (EOC 2005; see also
Dunstan 2001). Very few (1,000 per year) of those who actually experience discrimination
of this nature actually litigate (James 2004, 2007 and 2009). Detrimental treatment
might include being overlooked for training or promotion, demotion or refusal of time
off for ante-natal appointments, being given the ‘cold shoulder’ or verbally abused (see
further James 2007 and 2009; Adams et al. 2005; Dunstan 2001; O’Grady and Wakefield
1989). It can also include an unwanted reduction or increase in hours of work following
the announcement of pregnancy or upon return from leave (James 2009: 28). In 2004
concern about the level and nature of pregnancy-related discrimination led the Equal
Opportunities Commission (now part of the Equality and Human Rights Commission
(EHRC)) to conduct a formal investigation (see EOC 2005), but the problem is yet to be
seriously tackled: recent evidence suggests that businesses are using the recent economic
recession as a convenient excuse to break the law and make pregnant workers redundant
(Woodroffe and Higham 2009).
The levels of estimated incidence of pregnancy-related discrimination are surprising
given that legislation provides a course of action in these situations and that employers
can be required to pay considerable damages if found liable. It is also interesting that
pregnancy-related discrimination in the UK is not geographically confined in any way
and exists across all industries, where women are employed (James 2009: 29–30). However,
research suggests that pregnancy-related dismissals are more likely to occur amongst those
with limited service history at the time they announce their pregnancies (James 2009: 30)
and this reflects research findings that some employers frown upon pregnancy within
the first year of employment (Young and Morrell 2005). EOC research suggests that some
cohorts of pregnant workers might be more vulnerable to discrimination of this nature
than others – younger women, those with disabilities, lesbians, atypical workers (such
as temporary or agency staff), those from ethnic minorities and those working for small
businesses (EOC 2005; Leighton and Evans 2004). In addition, if poor attitudes exist
towards pregnancy it seems likely to emerge prior to maternity leave: in a study of 1,368
pregnancy-related unfair dismissal cases, many women were dismissed within days of
announcing their pregnancies to employers (James 2009: 30).
The causes of pregnancy-related discrimination are difficult to pin down, although
studies suggest that the likelihood of it occurring is influenced by: lack of dialogue
and planning between workers and their employers (Young and Morrell 2005); limited
understanding of legal obligations and the legal implications of detrimental treatment
on the grounds of pregnancy and maternity leave amongst line-managers and small
firms (Young and Morrell 2005; Leighton and Evans 2004); and negative stereotypical
assumptions about pregnancy (Bistine, 1985; Collinson et al. 1990; EOC 2005; Halpert et al.
1993; Low Pay Unit 2002). Stereotypical attitudes include views that pregnant women
are less committed to their jobs, are a financial burden on the business, are likely to
be less focused and more irrational, and more likely to be absent because of illness and
(in the future) childcare issues. Such negative views are often fuelled and privileged in
high-profile sound-bites from the likes of Sir Alan Sugar, whose general unwillingness to
employ women of childbearing age was discussed in a tabloid newspaper (Daily Mail, 9
February 2008; see also United Kingdom Independence Party (UKIP) MEP Godfrey Bloom,
cited in The Daily Telegraph, 21 June 2004).
Pregnancy Discrimination as Sex Discrimination

Pregnancy has, historically, proved particularly problematic in relation to the SDA, not
least because of the need for a comparator in order to establish direct discrimination.
When the SDA was drafted, pregnancy-related discrimination was not a part of its ambit
(Honeyball 2000). Indeed maternity rights per se were seen as part of workers’ rights
generally and provided for in the Employment Protection Act 1975, legislation that
received Royal Assent on the same day as the SDA. The Employment Protection Act 1975
provided protection against dismissal on grounds of pregnancy or for a reason related to
The Law Relating to Pregnancy and Maternity Leave 49
it (S60) and provisions for maternity leave and the right to return to work. The SDA on
the other hand sought to tackle broader discrimination issues; ‘less favourable treatment’
on the grounds of sex, and used the symmetry model, based upon Aristotle’s notion that
like ought to be treated alike and having at its core the need for a (in our case, male)
comparator, to achieve its aim. For many years this need for a male comparator prevented
the SDA from being fully utilised by working women as a means of challenging acts of
pregnancy-related discrimination. Very early on the Employment Appeals Tribunal (EAT),
in Reaney v Kanada Jean Productions Limited ([1978] IRLR 427), closed the door to potential
claimants under the Act. The EAT held (at 428) that:
It is impossible for a man to become pregnant (at all events in the specific state of scientific
knowledge!). His situation therefore cannot be compared to that of a woman. The concept of
discrimination involves by definition an act or treatment which in the case of a woman is less
favourable than that which is or may be accorded to a man.
Similarly in Turley v Allders Department Stores [1980] ICR 66 EAT (at 67) the majority
of the EAT argued that ‘a pregnant woman [is] not merely a woman but a woman with
child with which there [is] no male equivalent’ and, hence, found that the case had ‘an
insufficient infrastructure for argument of a submission under S.1(1)(b).’
In Hayes v Malleable Working Men’s Club & Institute [1985] IRLR 367 the EAT insisted
that it was not the pregnancy itself but the effect it has upon performance at work of
the need to be away from the workplace that presented the significant difficulty for
employers (see also the dissenting opinion of Smith in Turley v Allders Department Stores
[1980] ICR 66 EAT). It is, the tribunal suggested, ‘the consequence of the pregnancy,
rather than the condition itself, which provides the grounds for dismissal’ (at 367) and,
by implication, the treatment of a pregnant woman should, it held, be compared to that
of an ill male who also needs time away from the workplace. Whilst a slight improvement
on the previous approach, in that it ensured that some women could now put forward a
realistic plea under the SDA, this approach was considered demeaning to women because
it was thought to characterise pregnancy as an illness rather than a positive and normal
condition worthy of legal protection in its own right (see Lacey 1992: 103).
It was some 15 years later, in a preliminary reference brought by a Dutch court before
the Court of Justice (CoJ – was ECJ), that the possibility of bringing an action under the
SDA was deemed feasible. In Dekker v Stichting Vormingscentrum voor Jong Volwassen Plus
(CaseC-177/88 [1990] ECR I-3941; [1991] IRLR 27 CoJ) the CoJ was asked whether the fact
that a woman was refused employment on the grounds that because she was pregnant
the employer’s insurance company would not reimburse maternity benefit, as they knew
of the pending claim at the time of appointment, was contrary to the Equal Treatment
Directive (ETD: 76/207/EEC as amended by 2002/73/EC). Despite being recommended as
the best qualified applicant for the post, she was not employed by the respondent. In its
ruling the CoJ demonstrated what Ellis referred to as ‘its fundamental grasp of what the
law in this area is seeking to achieve’ (Ellis 1994: 567) when it ruled (at para. 12) that:
As employment can only be refused because of pregnancy to [a] woman, such a refusal is direct
discrimination on the grounds of sex. A refusal to employ because of the financial consequences
of absence connected to pregnancy must be deemed to be principally on the fact of pregnancy.
Such discrimination cannot be justified by the financial detriment in the case of recruitment of
a pregnant woman suffered by the employer during maternity leave.
Accordingly, the functioning of the ETD is not, the CoJ decided, based upon the need
for a comparison of any kind to be made. As McGarry comments, this landmark case ‘had
significant consequences for the employers of Member States and for the Courts’ and
‘marked an important advance for those seeking to create a culture of protective rights
for pregnant workers’ (McGarry 1995: 317). However, despite the fact that this ruling
made it possible for sex discrimination legislation to be of practical use where women
were dismissed because of pregnancy, it quickly became apparent that the protection it
offers has limits.
On the very day that the CoJ gave its ruling in Dekker, the same court delivered its
ruling in Hertz, (Handels-og Kontorfunktionaernernes Forbund I Denmark (acting for Hertz)
v Dansk Arbejdgiverforening (acting for Aldi Marked K/S) Case C-179/88 [1990] ECR I-3979;
[1991] IRLR 31 CoJ), bestowing an immediate qualification on the potential scope of the
legislation in relation to dismissals which are precipitated by pregnancy-related illness.
This case concerned the dismissal of a woman who had taken a considerable amount
of sick leave due to a complicated pregnancy and childbirth. She was dismissed because
of repeated absences after resuming employment following maternity leave. The illness
originated in the pregnancy and maternity leave period and the CoJ was asked whether
such a dismissal was contrary to the ETD. The Court confirmed the basic tenet of the
Dekker judgment and extended it to cover dismissal as well as non-recruitment. However,
in relation to this particular case, it stated (at para. 13) that ‘during the maternity leave … a
woman is protected from dismissal because of her absence’ but that, ‘after that period there
is no reason to distinguish a pregnancy-related illness from any other illness’. Subsequent
case law has further clarified the scope of the ‘protected period’ for the purposes of the SDA
(see below) but, in brief, proving discrimination when illness arises after maternity leave,
depends upon whether a male employee, absent due to (a non-pregnancy related) illness
for the same period of time, would have been more favourably treated.
A further restriction on the scope of the protection offered in Dekker emerged in
cases regarding women employed on fixed-term contracts (see in particular, Webb v EMO
Air Cargo (UK) Ltd Case C-32/93 [1994] ECR I-3567 and [1994] 4 All ER 115; Habermann-
Beltermann v Arbeiterwohlfahrt [1994] C-421/92 ECR I-1657 CoJ. See also, Caruana v
Manchester Airport plc. [1996] IRLR 378 EAT and Mahlburg v Land Mecklenburg-Vorpommern
Case C-207/98 [2000] IRLR 276 CoJ). These early cases suggested that the ETD did not
apply in the case of fixed-term contracts – where, for example, a woman was not recruited
or dismissed when pregnancy meant that she would not be available to work during a
fixed-term contract. This distinction, especially given the line of reasoning adopted in
Dekker and Hertz, has been described as ‘invidious’ (Fredman 1995: 222). However, more
recent developments, not least the enactment of the Fixed-Term Work Directive (99/70/
EC), means that fixed-term workers are no longer treated differently to those on permanent
contracts. In Tele Danmark A/S v Handels-og Kntorfunktionfrernes Forbund i Danmark (acting
on behalf of Brandt-Nielsen) (Case C-109/00) [2001] IRLR 853), the CoJ ruled that the ETD
and the Pregnant Workers Directive (PWD: 92/85/EEC) applied irrespective of whether
the contract was for a fixed or indefinite period (see paras 33, 43 and 44. See also, Jimenez
Melger v Ayuntamiento de Los Barrios [2001] IRLR 848 CoJ, where a similar reasoning was
applied in relation to non-renewal of a fixed-term contract).
Since this important plethora of CoJ rulings (and others, discussed below) sex
discrimination legislation in the UK has, since October 2005, explicitly included a
section prohibiting less favourable treatment on the grounds of pregnancy or maternity
leave under S3A (see also S6A which provides details of the scope of this protection).
The inclusion of these sections has not been without drama as the original wording of
S3A proved controversial and was successfully challenged in the High Court by the EOC
(Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] IRLR 327).
The EOC questioned the legality of the conceptual female comparator (one who was not
pregnant and not on maternity leave) which had been introduced by the government in
this section. This, the EOC argued successfully, constituted a regression and was contrary
to the established case law, especially given that the CoJ had ruled in both Webb and
Gillespie and Others v Northern Health and Social Services Board ([1996] IRLR 214) that such
a comparative approach was unacceptable.
The government has since indicated that it will amend the SDA in light of this
ruling, and the recent Equality Act 2010, replicating this amended legislation, defines
discrimination on the grounds of a woman’s pregnancy or pregnancy-related illness.
Section 18(2) provides that ‘a person (A) discriminates against a woman if, in the protected
period in relation to a pregnancy of hers, A treats her unfavourably – (a) because of the
pregnancy, or (b) because of illness suffered by her as a result of it’. Section 18(3) and (4)
prohibit discrimination because she takes or tries to take maternity leave. The protected
period is defined as beginning when the pregnancy begins and ending at the end of her
maternity leave entitlement or, if she has no such entitlement, at the end of two weeks
beginning with the end of pregnancy (18(6)).
In line with the CoJ rulings, the need for a comparator is explicitly excluded in
relation to pregnancy and maternity discrimination at work. Interestingly, the Equality
Bill originally defined discrimination as occurring if the pregnant woman or new mother
was treated ‘less favourably’ and this was, in turn, defined as meaning the woman being
treated ‘less favourably than is reasonable’. This definition might have enabled employers
to defend claims by reference to, for example, costs and inconvenience. Following
objections by the EHRC, and others, the terminology was amended and the final version
is less likely to seriously undermine the effectiveness of the law in this area. The desire to
legislate to protect pregnant women and new mothers from discrimination at work has
always proved problematic and, as these difficulties in drafting show, it still sits uneasily
within the ambit of anti-discrimination legislation as a whole. Indeed, the turbulent
history discussed above also reflects an embedded awkward relationship between the
ideals of anti-discrimination legislation and the realities of detrimental treatment against
pregnant women and new mothers at work. Issues continue to test the boundaries of
anti-discrimination law and reveal both its possibilities and limitations as a realistic cause
of legal action, and in the next section some key areas of continuing friction for claimants
and employers are outlined.
Key Issues
The explicit statement of prohibition now included in the SDA and the Equality Act
reflect the significance of judicial intervention in this area of anti-discrimination law.
Women are able to claim direct discrimination if, for example, they are not considered
for a post because of pregnancy, are dismissed because of pregnancy or selected for
redundancy because they have taken maternity leave or given different work upon
return to work because replacements are doing that job. The scope of legal protection for
pregnant women and new mothers at work is not, however, without its limits. Indeed,
although the SDA and Equality Act cover workers, as opposed to the narrower category
of employees, it is important to note that statutory maternity leave is only available to
‘employees’ (as defined under S203 of the Employment Rights Act 1996). Hence, the
protection afforded covers non-employees (such as agency workers) only when they are
pregnant and for the two weeks (mandatory) leave immediately following childbirth.
Given that all employees are now entitled to 12 months’ maternity leave in total, this
significantly reduces the applicability of this protection to non-employees. Some further
limitations of the legislation are discussed below.
First, it is important to note that whilst a woman is generally protected from
discrimination during maternity leave the rights to which she is entitled during this time
are not absolute. For example, the CoJ, in Gillespie, ruled that a woman is not entitled to
her normal salary during maternity leave. The government, in October 2005, inserted a
new S6A into the SDA to clarify what terms and conditions a woman may be deprived
of during this time, without contravening the protection afforded under S3A of the SDA.
It highlighted a distinction that has historically been relevant in domestic law between
ordinary maternity leave, when all benefits other than remuneration were preserved, and
additional maternity leave, when they were not. The new S6A was successfully challenged
by the EOC in its High Court action (see above), where it was argued that the restrictions
placed on claims of discrimination in relation to the additional leave period offended the
doctrine of regression and should be recast so as to comply with the CoJ rulings in Lewen
v Denda ([2000] IRLR 67) and Land Brandenburg v Saas ([2005] IRLR 147). This change is
reflected in the Equality Act (S18(4)) which prohibits unfavourable treatment ‘because
she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to
ordinary or additional maternity leave’, and is to be commended.
Second, the case law relating to discrimination on the grounds of pregnancy-related
illness provides specific protection only where the illness occurs during pregnancy or
the maternity leave period. This, as stated above, was first established by the CoJ in
Hertz, but it was clear that illness that occurs during and after pregnancy provides a
dilemma: to impose timeframe boundaries or provide limitless protection against
detrimental treatment, where the illness was pregnancy or childbirth related? The CoJ
chose to interpret the ETD so that it protects a woman absent due to illness during her
entire pregnancy and maternity leave, but not thereafter. Any ambiguity and confusion
in relation to where the boundary had been drawn was finally laid to rest by the CoJ
in Brown v Rentokil (C-394/96 IRLR [1998] 445 CoJ. See also the earlier decision of the
Court of Appeal in Northern Ireland in Stephenson v FA Wellworth & Co Ltd [1997] NI
CA and Handels-Og kontorfunktionaerernes Forbund i Danmark (acting for Larsson) v Dansk
Arbejdsgiverforening Case C-400/95 [1997] ECR I-2757). Brown v Rentokil concerned
the termination of a contract of an employee who was absent from work for various
pregnancy-related reasons, following a work rule that employees exceeding 26 weeks’
continuous sick leave be dismissed. The Scottish Court of Session (IRLR [1995] 211 CS)
had held that ‘it was not relevant that the precise reason for the appellant’s illness was a
condition, namely pregnancy, which was capable of affecting only women’. It based its
decision on a narrow interpretation of the Hertz case, suggesting that a clear distinction
had been made between pregnancy caused dismissal per se, and dismissal because of
pregnancy-related illness. It held that in the latter situation there is no sex discrimination
if the female employee is treated in the same way as a male employee absent due to illness.
Counsel for the claimant insisted that this case could be distinguished from Hertz because
the latter had been dealing with an illness that emerged some time after the pregnancy,
whereas Ms Brown’s illness arose out of and during her pregnancy. The claimant appealed
to the House of Lords and it made a preliminary reference to the CoJ for further guidance.
The CoJ (at para. 22) declared that it was discriminatory, contrary to the ETD, to
dismiss a woman on account of her incapacity to work because of a pregnancy-related
illness, stating that:
Pregnancy is a period during which disorders and complications may arise compelling women
to undergo strict medical supervision and, in some cases, to rest absolutely for all or part of
her pregnancy. Those disorders and complications, which may cause incapacity for work, form
part of the risks inherent in the condition of pregnancy and are thus a specific feature of that
condition.
It initially appeared as if the CoJ was declaring any pregnancy-related illness dismissal,
whenever it appears, to be discriminatory. However, the CoJ clarified (at para. 26) that the
scope of the protection was, as suggested in earlier judgments, confined to the pregnancy
and maternity leave period. It ruled that:
Where pathological conditions caused by pregnancy or childbirth arise after the end of
maternity leave, they are covered by the general rules applicable in the event of illness. In such
circumstances the sole question is whether a female worker’s absences … are treated in the
same way as a male worker’s absences, for the same duration, caused by incapacity for work;
if they are, there is no discrimination on grounds of sex.
Thus, whereas pregnancy-related dismissal is an issue capable of coming within the

ambit of sex equality law, these cases demonstrate a simultaneous desire to limit the
scope of that protection. The Equality Act reflects this approach and crystallises the
notion of a ‘protected period’ during which poor treatment on the grounds of pregnancy-
related illnesses will constitute direct discrimination. It remains that if poor treatment
occurs beyond the protected period a woman would need to be able to prove that the
discrimination was because of her sex and be able to make the relevant comparison. As
Wynn commented in relation to the Brown ruling, but it might be applied as a general
description of the CoJ jurisprudence and ongoing domestic approach to this area of law,
the ‘protected period’ constitutes ‘a pragmatic decision which recognises that, for cost
reasons, domestic and work roles must conform to male work patterns outside a narrowly
drawn maternity period’ (Wynn 1999: 435; see also Conaghan 1998; Ellis 1998).
Third, the culpability of employers in relation to pregnancy-related discrimination is
intrinsically linked to the requirement of knowledge, and this severely limits the scope of
protection available. There is, quite simply, no discrimination on the grounds of pregnancy
if the employer was not aware of the pregnancy at the time she or he decided to dismiss
the employee. The main authority for this is a rather dated EAT decision relating to a
claim for unfair dismissal, but it applies in relation to sex discrimination cases too: in
Del Monte Foods v Mundon ([1980] IRLR 224 EAT) the claimant had been ill on numerous
occasions when she was dismissed. Her employers claimed to have been unaware of the
pregnancy at the time they decided to dismiss her, although they were aware by the time
the actual dismissal took place. The EAT concluded that:
If this section is to be relied upon, it seems to us essential that it be shown that the employers
knew or believed that the woman was pregnant or that they were dismissing her for a reason
connected with her pregnancy. If they do not know of the pregnancy, or do not believe that the
pregnancy exists, it does not seem to us that it is possible for the employers to have as their
reason for dismissal that the woman was pregnant. In a case where it is said that the reason
for the dismissal is another reason connected with her pregnancy, not the pregnancy itself, it
seems to us that the employers have to know the facts alleged by the employee as grounding the
reason and also to know or believe that those facts relied upon are connected with the woman’s
pregnancy. In summary it must be shown that the employers have either the knowledge of, or a
belief in, the pregnancy, or knowledge of the facts, and their connection with the pregnancy, if
there is some other reason than the pregnancy, which is the reason for the dismissal.
A similar conclusion was reached more recently in Ramdoolar v Bycity Ltd (EAT 30/07/04
case 0236/04) where the EAT actually felt that to question a woman about the existence of
a pregnancy might itself be detrimental, contrary to the Maternity and Parental Leave etc.
Regulations 1999 (SI No 3312) Regulation 19. In Ramdoolar, however, the EAT conceded
that an employer who suspects pregnancy and, ‘fearing the consequences’, dismisses her
would be acting unlawfully. Prior to Ramdoolar, doubt had been cast upon the reasoning
behind the Del Monte decision: observations by Lindsey in Heinz Co Ltd v Kendrick
(EAT 2001 IRLR 144), a disability discrimination case, suggested that awareness of the
symptoms of pregnancy might be sufficient to establish a connection between pregnancy
and dismissal whether or not pregnancy featured in the employer’s mind. Unfortunately,
this line of reasoning was not followed in Ramdoolar and has since been overruled in
relation to disability discrimination too in the controversial House of Lord’s decision in
London Borough of Lewisham v Malcolm ([2008] UKHL 43, HL, Baroness Hale dissenting.
See Horton, 2008 for comment). Nothing in the Equality Act contravenes this approach
and this silence embeds knowledge as a precondition of culpability. In summary, the
current approach places the onus on pregnant employees to reveal their pregnancies, and
to reveal them to the ‘right’ person (see Eildon Ltd v Sharkey ([2004] EAT case 0109/03), in
order to gain legal protection. This presents a particularly difficult decision for women,
the majority, who do not want to reveal their pregnancies for the first trimester, when risk
of miscarriage and complications is at its highest (see further James 2009: 59–61). Overall,
it is disappointing that women may be forced to prove that the employer did know of, or
suspect the existence of, a pregnancy prior to the discriminatory act complained of.
Anti-discrimination law alone cannot alter stereotypical attitudes or wholly
prevent non-employment of women of childbearing age, or force individuals who have
experienced wrongdoing to litigate and hence enforce the law where discrimination
occurs (on this ‘litigation gap’ issue, see James 2009: 24–27). Legislation can however, if
sympathetically drafted and applied, provide a course of action in many cases and hence
a means of gaining compensation when wrongdoing occurs. In this regard, despite the
limitations outlined here, it provides an important remedy for many individual women.
The Equality Act promises to provide similar protection, and also to increase the powers
of employment tribunals in discrimination cases to make recommendations in respect of
all employees, not just the individual who has brought the claim, and probably left the
place of work. This generic provision might help persuade employers to re-think broad
policies, as opposed to simply reacting to individual claims and is, in the fight against this
gendered, pervasive and damaging form of discrimination, to be commended.
Conclusion
The discussion above demonstrates how the lives of pregnant workers and new mothers
will forever be at odds with sex discrimination and equality laws. Pregnancy and
parenting do not fit neatly into the equality model, based as it understandably is upon
the need for comparators. This current law’s applicability to relevant situations will
continue, at every junction, to be tested. For example, the issue of in vitro fertilisation
(IVF) treatment tested the scope of the law when, in Sabine Mayr v Backerei und Konditorei
Gerhard Flockner OHG (2008 IRLR 387), the CoJ was asked whether the dismissal of a
woman undergoing IVF treatment contravenes the Pregnant Workers Directive. The CoJ
did not feel that the Pregnant Workers Directive was relevant to the case but insisted
that, if the dismissal was linked to the treatment, she could rely upon the ETD. At the
time of this dismissal the woman’s ova had been fertilised but, interestingly, had not
yet been transferred to her uterus. Despite this, the CoJ felt that this was a procedure
that ‘directly affects only women’ and that, because of this link to her sex, her dismissal
as a result ‘constitutes direct discrimination on the grounds of her sex’ (para. 30).
This case demonstrates how a woman’s particular experience of pregnancy or here her
attempts to become pregnant, continue to test the boundaries of the legislation. The CoJ
decision is, from a pragmatic perspective, to be celebrated, but the reasoning behind the
decision, which solidly grounds the protection available in terms of her gender, reveals
the broadest limitation of this type of legislation: that it necessarily locates this type of
discrimination as a gender issue. In doing so, it constructs all negative pregnancy and
parenting–workplace relationships as ones that only impact upon (and, it implies, are
caused by) women, perpetuating dominant ideologies of motherhood and fatherhood
(see James 2009; see also McGlynn 2001).
The scope of current sex discrimination legislation will continue to be challenged
and reformed by litigation that pushes its scope so as to provide a cause of action for the
thousands of women who experience discrimination of this type every year. However,
progress by litigation, be it the SDA, Equality Act, ETD or any future equality legislation,
is unlikely to achieve the fundamental goal of substantive, as opposed to formal, gender
equality in the workplace because its framework was not designed with pregnancy,
maternity or parenting (or indeed care-giving generally) in mind. It does not offer a suitable
basis for consideration of the issues that impact upon the lives of working families today:
we need to reconsider the difficulties and dilemmas imposed by pregnancy, parenting/
care-giving and workplace relationships for all parties, not just those women who are able
and willing to bring claims under the anti-discrimination legislation. Only in the light of
a more holistic reconsideration – which might include an assessment of the pregnancy
and parenting–workplace relationships for mothers, fathers, carers, children, workers,
employers and society as whole – can we purposefully (re)evaluate and (re)construct legal
frameworks in a useful way.
References
Adams, L., McAndrew, F. and Winterbotham, M. (2005) Pregnancy Discrimination at Work: A Survey of
Women, Manchester: Equal Opportunities Commission.
Bistine, S.M. (1985) ‘Making room for baby’. Association Management, 37: 96–98.
Collinson, D., Knights, D. and Collinson, M. (1990) Managing to Discriminate, London: Routledge.
Conaghan, J. (1998) ‘Pregnancy, equality and the European Court of Justice’, International Journal of
Discrimination Law, 3: 115–133.
Dunstan, R. (2001) Birth Rights: A CAB Evidence Report on Maternity and Paternity Rights at Work,
London: National Association of Citizens Advice Bureaux
EOC (2005) Greater Expectations: Final Report of the EOC’s Investigation into Discrimination Against New
and Expectant Mothers in the Workplace, Manchester: Equal OpportunitiesCommission.
Ellis, E. (1994) ‘The definition of discrimination in European Community sex equality law’, European
Law Review, 19: 563–580.
—— (1998) ‘Recent developments in European Community sex equality law’, Common Market Law
Review, 35: 379–408.
Fredman, S. (1995) ‘Parenthood and the right to work’, Law Quarterly Review, 111: 220–223.
Halpert, J., Wilson, M. and Hickman, J. (1993) ‘Pregnancy as a source of bias in performance
appraisal’, Journal of Organizational Behaviour, 14: 649–663.
Honeyball, S. (2000) ‘Pregnancy and sex discrimination’, Industrial Law Journal, 29(1): 43–52.
Horton, R. (2008) ‘The end of disability-related discrimination in employment’, Industrial Law
Journal, 37(4) (December): 376–384.
James, G. (2004) Pregnancy Discrimination at Work: A Review, Manchester: Equal Opportunities
Commission.
James, G. (2007) ‘Law’s response to pregnancy/workplace conflicts: a critique’, Feminist Legal Studies,
15: 167–188.
—— (2009) The Legal Regulation of Pregnancy and Parenting in the Workplace, London: Routledge-
Cavendish.
Lacey, N. (1992) ‘From Individual to Group?’, in Hepple, B. and Szyszak, E. (eds), Discrimination: The
Limits of Law, London: Mansell.
Leighton, P. and Evans, R. (2004) Pregnant Women at Work: A Survey of Small Business Employers in
Wales, Manchester: Equal Opportunities Commission.
Low Pay Unit (2002) A Difficult Delivery – Maternity Rights at Work, Manchester: Low Pay Unit.
O’Grady, F. and Wakefield, H. (1989) Women Work and Maternity: The Inside Story, London: Maternity
Alliance.
McGarry, T. (1995) ‘Maternity rights in Northern Ireland and the struggle to achieve equality of
opportunity’, Review of Employment Law Topics, 3(1): 309–334.
McGlyn, C. (2001) ‘European Union family values: ideologies of “family” and “motherhood” in
European Union law’, Social Politics, 8(3): 325–351.
Woodroffe, J. and Higham, E. (2009) Alliance Against Pregnancy Discrimination in the Workplace Briefing.
London: The Fawcett Society. Available from: http://www.fawcettsociety.org.uk/documents/
AllianceAgainstPregnancyDiscrimination.pdf. [accessed 25 January 2011].
Wynn, M. (1999) ‘Pregnancy discrimination: Equality, protection or reconciliation?’, Modern Law
Review, 62(3): 435–447.
Young, V. and Morrell, J. (2005) Pregnancy Discrimination at Work: A Survey of Employers (EOC Working
Paper Series 20), Manchester: Equal Opportunities Commission.
II Discrimination(s)
part
in the Workplace:
Gender and
Sexuality
5
chapter
Model Employment?
The Challenges Ahead
for Public Sector
Employers and
Unions in Tackling the
Gender Pay Gap
CAROLE THORNLEY AND DAN COFFEY
Introduction
The notion that the state sector is a ‘model’ or preferential employer is one which is
deeply rooted in the public imagination and many academic accounts. This chapter,
however, shows the extent to which reality lags behind the popular mythology, and
therefore the extent of challenges remaining for public sector employers and unions.
In particular, it makes the case for a clear re-evaluation of the significance of gender
and gender-based disadvantage in this sector, thus offering a corrective to current trends
to focus on ‘diversity’ and ‘intersectionality’ which run the risk of missing the bigger
picture with respect to the main schisms in material rewards and key areas for reform.
Recessionary conditions may also serve to obscure the need for change. The chapter
therefore discusses the need both to understand and be committed to best practice and
the challenges to public sector employers and unions in seeking to do this.
Model Employment?
There have long been claims on the part of the UK state (and others internationally) to
be – or to aspire to be – a ‘model employer’. Whilst the particular historical usage and
meaning of this concept benefit from a much deeper analysis,1 it is the case that this is
normally intended to convey the impression of generosity or fairness, with respect to
internal arrangements as well as relative to the private sector. If anything, there has been
1 For a full and critical analysis see Coffey and Thornley (2009, especially pp. 81–109).
a recent renaissance of the use of model employer terminology. For example, the UK
Department of Health’s policy guidance currently makes ‘the case for becoming a model
employer’ as follows:
There is a wealth of research evidence which demonstrates clear links between good employment
practices and business outcomes. Creating an environment where staff are valued, rewarded,
appropriately trained and developed, regularly appraised and properly managed has a positive
impact on people who use services and their carers. Model employers are also more likely to
attract and retain high-quality staff and are also more likely to have high-performing and
motivated staff who are more flexible and take less time off work.
For social care, People need People – the report on the outcomes of the joint Social Services
Inspectorate and Audit Commission inspections (2000), found that: ‘Those councils that are
performing best in service delivery and the management of performance and resources are also
those who score highly on their management of workers’.2
This guidance argues that ‘being a model employer means developing and
implementing the right people management practices for your workforce’, with such
practices covering a wide range of issues including ‘good benefits including reward
structures’ (ibid.). The model employer concept was previously included in the National
Health Service (NHS) Plan in July 2000, and subsequently in new payment systems in
the NHS in the 2000s. Self descriptions as ‘model employers’ can now be found widely
on websites and in internal documentation for both health service Trusts and local
authorities in the UK, and are frequently employed as claims to be a model employer
alongside further aspirational ideals.
If the concept is important in the sense of practitioner usage, it is also prevalent in
modern academic accounts of public sector employment and employment relations. The
majority have been relatively uncritical of the broad account of ‘model employment’, even
where they see exceptions and (in particular) note that some political administrations
make a marked departure from the ‘ideal’ in particular epochs (see for example, Fredman
and Morris (1989a, 1989b); Farnham and Pimlott (1995); Carter and Fairbrother (1999);
Bach and Winchester (2003)).3 A recent view taken on the relative position of public
sector workers vis-à-vis their private sector counterparts in an influential commentary, for
example, is very positive: ‘many public sector workers enjoy relatively high job security,
shorter working hours … while low pay is also relatively rare’ (Bach and Winchester
2003: 286). Gender disadvantage is acknowledged, but again the prognosis is optimistic:
‘in most parts of the public services … the gender pay gap and other expressions of
women’s disadvantaged position vis-à-vis men have declined over the last 20 years’ (ibid.:
294–295).
The problem with such idealised accounts, however, is that they sit rather awkwardly
with the key features of public sector employment – that is to say, with the basic facts –
both historically and currently. While we explore historical features in some detail
elsewhere (see Coffey and Thornley 2009: 82–101), we here focus on the material, and
structural, realities of modern public sector employment.
2 See http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/
DH 5675761 [accessed 8 January 2008].
3 For a full review of this literature, see Coffey and Thornley (2009).
Model Employment? 61
The first thing that would strike any objective ‘newcomer’ to the state sector is that it
is a major area of employment for women. While class and race also provide important
schisms within, and sources of disadvantage for, public sector employment and pay,4 it
is the feminised nature of public services which is striking, and which has been much
neglected in most accounts. More than five and a half million workers are directly
employed in the UK state sector (Labour Market Trends 2006: 1), the majority of whom are
women; in fact, around a third of all women who are employed in the economy work in
the public sector. There has been increasing ‘feminisation’ of the public sector in the UK
over time – from a position of just under half the workforce in 1971 (Beaumont 1992:
34–35), women now account for up to four fifths of total public sector employment.5
This compares with an employment rate for women of under half in the economy as
a whole. The treatment of women in the state sector is therefore a major ‘test’ for our
understanding of ‘model employer’ status.
The facts suggest the need for a clear re-evaluation. First, the public sector is itself an
example of gender segregation in terms of its feminisation as a whole vis-à-vis the private
sector. Even so, the patterns of horizontal and vertical segregation within individual
service sectors, and even within discrete ‘occupations’, are striking and embedded. The
two largest sectors are health and local government, jointly accounting for some 78
per cent of all public sector employment, with 1.4 and 2.8 million workers respectively
(Labour Market Trends 2004: 273) and both are highly feminised: women account for four
fifths of workers in health and almost three quarters in local government (figures for
England and Wales, Local Government Pay Commission (LPGC) 2003: 10–16). Within
health, women are proportionately under-represented – relative to the number of women
employed overall – at the top of the hierarchy and over-represented in the lower echelons.
And, horizontal segregation is also apparent, with women, for example, far more likely
to be employed as nurses than as ambulance workers. If we consider occupations, in
nursing there is again evidence of vertical and horizontal segregation (Thornley, 2001:
97). Similarly, local government as a whole – encompassing occupations like teaching,
social work, and administrative staff – exhibits vertical and horizontal segregation,
especially in the largest bargaining group, Local Government National Joint Council (NJC)
services, where 1.6 million workers are employed and which includes staff such as home
carers, social workers and non-teaching staff in schools. Here, horizontal segregation
can be extreme with overwhelmingly ‘male’ occupations such as refuse collectors and
overwhelmingly ‘female’ occupations such as school cooks, for example. Both health
and local government are also characterised by disproportionately high numbers of
part-time workers (and temporary workers6), the great majority of whom are women.
While part-time work only accounts for around a quarter of overall UK employment, it
accounts for two fifths of employment in health, and almost half in local government,
rising to 55 per cent for the 1.6 million workers in NJC services. Such part-time work is
also concentrated in the female-dominated occupations, and relatively rare in the male-
dominated occupations.
4 This is in no way to diminish the importance of exploring each of these features, and in tandem – see, for example,
Thornley (1996, 2001) for the health services in the UK, and Thornley (2004, 2007) for local government. However, this
chapter stands as a ‘corrective’ to approaches which can tend to diminish or neglect the importance of gender per se.
5 Estimates do vary and lower bound estimates start at around two thirds of total employment, depending on
source.
6 For a good discussion of gendered temporary work in the public services, see Conley (2003).
The segregation and high levels of part-time work evidenced above reflect in unequal
and low pay in the public sector. So far as full-time workers are concerned there is still a
sizeable gender pay gap in the public sector, and this has been relatively sticky in recent
years. Currently, the ‘internal’ gender pay gap between women and men full-time workers
within the public sector stands at about 18 per cent, while the ‘external’ full-time gender
pay gap between women in the public sector and men in the private sector stands at around
19 per cent, and there has been only a marginal shift in these figures over the period of
New Labour.7 While this gap appears superficially better than the private sector gender pay
gap, the public sector employs a relatively high proportion of women in ‘professional’ and
‘non-manual’ occupations and has a generally higher qualification level than for the whole
economy. It is also the case that women in the public services have a typically mature age
profile, and an above economy average length of service (see Thornley 2006: 349) – so like
is not being compared with like. Moreover, the real extent of the gender pay gap in the
public sector is poorly captured by considering comparisons based only on full-time workers
because of the disproportionately higher numbers of part-time women workers employed.
Part-time women workers typically have a much larger pro rata pay gap with male full-time
workers – in the public sector as in the private sector.
It is thus important to look at more disaggregated levels to see the real extent of gendered
pay outcomes in different parts of the public sector and for different occupations. For
example, a disaggregated independent study of local government workers (see Thornley
2003) found pay deteriorations in the 1990s and early 2000s reflecting disadvantages of
class and gender – NJC workers, manual workers and women workers all fared particularly
badly.8 In the health services too, more than half of all nurses, an overwhelmingly female
occupation and the single largest occupation in health, have basic salary levels well below
the economy-wide median, with most clustered at the lower end of the pay grades.9
Female registered nurses working full-time still earn less than the national average and
considerably less than the national average for male workers; while nursing auxiliaries
(NAs) and health care assistants (HCAs) have fared particularly badly (Thornley 1998,
2005). The impact of part-time work can also be extreme in particular areas: for example,
the majority of part-time women in NJC local government services earned less than
£11,000 basic earnings pro rata equivalent in 2002, and an estimate of the ‘real’ gender pay
gap for women in NJC services, which takes proper pro rata account of the composition
of the workforce, is 35 per cent, roughly twice the aggregate ‘internal’ gender pay gap for
the public sector reported above (Thornley 2003a). In health too, where part-time work
is most prevalent in the lower echelons, some of the lowest-paid workers (for example,
HCAs) have seen relative pay deteriorate not only against male, but also against female
comparators, with a sharp polarisation in pay levels and a widening of the gender pay gap
(see Thornley 1998, 2005, 2008).
In line with the above features, there is endemic low pay in the public sector and
this is deeply interlinked with gender. More than one quarter of full-time women and
up to three quarters of full-time manual women in the public sector are low paid when
7 For source and a fuller discussion of these measures see Thornley (2006). While the current figure for the internal
public sector gap for 2007 stands at 21 per cent, this is calculated from a discontinuous series as the New Earnings Survey
(NES) was replaced in 2004 by Annual Survey of Hours and Earnings (ASHE).
8 The ‘internal’ gender pay gap within local government is wider than the public sector aggregate gap, and the gap
between NJC female workers measured against all-economy men is higher than the economy-wide gender pay gap.
9 See Thornley (1998).
measured against the Council of Europe decency threshold using gross pay (Thornley
2006: 350). In health, around a third of nurses overall are low-paid, and almost all HCAs
and NAs (Thornley 1998, 2005, 2008), while in local government, the average earnings
of full-time female manual workers fall below this threshold: indeed, in NJC services the
majority of staff, over 80 per cent of women and 90 per cent of part-time women, are
low paid on this measure (using basic pay) (Thornley 2003a). Low pay is also prevalent in
administrative and clerical and ancillary work in both health and local government. Low-
paid workers across these sectors form large pockets just above the level of the National
Minimum Wage (a much lower measure than the Council of Europe measure).
The facts of segregation, unequal and low pay in a highly feminised public sector
suggest the need for a much more circumspect view of claims on the part of the state, or
constituent parts of it, to be – or to aspire to be – a ‘model employer’; and these facts also
show the importance of considering gender in its own right. They also flag up the extent
of the challenges ahead, if women employed in the public sector are to receive a ‘fairer’
share of the rewards of work.
The Need for Best Practice

The features above undoubtedly reflect a variety of complex causal mechanisms.10
However, the problem viewed from the perspective of employers or unions is more
accessible if approached from the position that something needs to be done about the
gender pay gap. We therefore first discuss why there is a pressing need to adopt best
practice, and then conclude with the challenges to progress.
While it is certainly possible to argue for a ‘moral’ or ‘business case’ for addressing
gender inequality in the public services, it is the case that pragmatic considerations
associated with sea changes in the collective bargaining and legislative/litigious context
are now paramount.
The formation of UNISON in 1993 through the merger of the unions National Union
of Public Employees (NUPE), National and Local Government Officers’ Association
(NALGO) and Confederation of Health Service Employees (COHSE)11 effected significant
changes in the balance of power in significant parts of the public sector; this undoubtedly
lent stimulus to its own objective appraisal of overall membership and potential for
membership growth. In this respect, the union was able to take stock of a situation in
which public sector employment had been feminising in previous decades and where
the majority of public sector employees were now female, and where part-time work was
particularly prevalent. Currently, almost three quarters of its membership are women,
over one third of whom work part-time. In line with this, low and unequal pay were
viewed as core issues for the new union (see Thornley 2000), along with changes in its
internal democratic forms vis-à-vis women (see McBride 2001). UNISON has subsequently
tended to combine a highly strategic twin-track approach to campaigns based on ‘low pay’
collective bargaining initiatives alongside ‘equal pay’ (and litigation-based) initiatives
(for full detail, see Thornley 2006).
10 It is beyond the scope of this chapter to delve into a number of relevant theoretical issues, but for an early
exploration of these (and for the case of nurses) see Thornley (1996).
11 For full detail on this merger and the early years of the new union, see Terry (2000).
UNISON has had a strong impact upon new payment systems, using early campaigning
for a National Minimum Wage to pursue a ‘dual strategy’ of legislation through the Labour
Party and TUC while also developing a bargaining agenda to present to employers ‘to secure
guaranteed minimum pay levels in the collective agreements negotiated by the union’
(Morris 2000: 158). The National Minimum Wage was viewed clearly as also providing
the ‘opportunity to renegotiate structures to ensure equal pay for women members’ (ibid.:
163), and was then reflected in the single status agreements in local government in 1997
and subsequent new pay determination systems in health. Whilst the final form of these
agreements undoubtedly reflected tensions between union and employer objectives,
equalities influences are evident and reflect some commonality of interest between unions
seeking changes and employers seeking to avoid falling foul of the law.
In practice, the complexity and expense of addressing gender inequalities have made
for slow progress and led to industrial relations problems – another pragmatic pressure for
change. In local government, an initial failure to progress led to the rejection of two pay
offers, costly industrial action, Acas-intervention and a temporary settlement through
the establishment of the Local Government Pay Commission (LGPC) and a longer-term
pay deal. In health, equalities and job evaluation were also major features of Agenda for
Change but progress has again been slow and contentious. In both cases the funding
required to address unequal and low pay remains a major issue: as UNISON have put it
‘Agenda for Change in the NHS and Single Status in local government and education
have established the principle of equal pay, but there is still a long way to go before the
principle is fully implemented as a reality’, (UNISON 2007).
However, the litigious background of UNISON’s (and other public sectors unions’)
campaigns has provided an important underpinning pressure for movement (see Thornley
2006) and recent tribunal rulings have also added impetus, whilst also proving a double-
edged sword. A major shock to the system here has been the proliferation of legal cases
‘actively’ encouraged by ‘no-win, no-fee’ lawyers, both against employers and against
unions (UNISON 2007). The case Allen & others v GMB in 2006 has reverberated around
the pay determination terrain. Here, the tribunal held that the General, Municipal,
Boilermakers (GMB) union indirectly discriminated against female members on the
grounds of their sex by recommending an ‘ill-considered’ back pay deal rather than equal
pay litigation which would have been in their better interests, and also victimised those
members who brought equal pay proceedings (Practical Law Company (PLC) 2006). The
subsequent appeal by the GMB was overturned in July 2008.12
The impact of such cases and rulings has been significant. If both opportunities and
challenges are apparent here for unions, then the recent cases have also had profound
impacts upon employers. According to a piece on People Management Online:
Local authorities had a 31 March deadline to reach single status pay agreements to ensure
equality between the sexes, but many – particularly the larger employers – missed the deadline
and could be open to legal claims. Councils are having to give up to six years’ back pay to eligible
female workers as a result of agreements … Some may be holding back because of concerns that
their deals with unions are not legally watertight, said LGE spokesman Richard Stokoe …
(2007).
12 For a note on the subsequent appeals processes see http://business.timesonline.co.uk/tol/business/law/reports/

article4648852.ece [accessed 3 May 2009].
A rather more nuanced account is provided by the Local Government Employers

(LGE) themselves (2006). The report first acknowledges that some ten years after the
signing of the original agreements, and after the findings of the Local Government Pay
Commission ‘which argued that local government had an equal pay, rather than low pay,
problem … so far, only 33 per cent of authorities have implemented new pay structures …
this represents 25 per cent of the local government workforce’ (2006: 2). It is argued that
‘problems have arisen with financing this agreement due to back pay and pay protection
issues, and the need for employers and trade unions to defend themselves against legal
challenge’ (ibid.). The LGE is thus arguing, on the basis of recent cases, that cost is now
no longer the sole issue: ‘legal developments have produced a situation where money
alone will not solve the problem … unions and employers need to be confident that the
money is being distributed in a way that is not open to challenge’. It is further noted
that legal action from no-win no-fee solicitors has ‘paralysed’ the unions and that the
collective bargaining process is being:
further undermined by recent employment tribunal decisions … legal action has been taken
against authorities, individual councillors and trade unions and is undermining the ability
of local employers to negotiate … furthermore, even where negotiations are continuing, the
approach has to some extent been forced on unions and is making deals less and less affordable.
(Ibid.: 3)
Despite the clear challenges for unions and employers here, and employers’ arguments
around a potential stasis, opportunities also present themselves for an equality agenda;
on the LGE’s own account of the Allan v GMB case, the tribunal found that:
The GMB rushed headlong into accepting an ill-considered back pay deal [for women], accepting
the authority’s plea of poverty, there was a striking contrast between the union’s approach to
pay protection [for men] compared to the assessment of the back pay offer, it should have
established equal value in the pay system and then sorted out back pay. Instead the union
agreed that the authority could keep back pay settlements low and then move to establishing
an equal pay system. GMB (along with the authority and Acas) manipulated unsophisticated
union members with alarmist information which suggested that a refusal to accept the offer
would involve job losses and make them traitors to their colleagues.
(Ibid.: 12)
If at one level this clearly militates against ‘sore thumbing’ and ‘fudge’ in future deals,
at another it equally opens up the opportunities to focus on equal pay issues and casts a
spotlight upon the real resources needed to fund equalities.
There is little doubt that recent legislation – in particular, the Equality Act 2006 – and
the Equality Act 2010 each reflect problems being experienced in the public sector in
particular, and frustration in some parts of government,13 at the failure to address the
gender pay gap.14 Such legislation adds further weight to the case for change, and to the
case to be made by those with responsibility for equalities in organisations which might
otherwise be recalcitrant. The price of inaction is now high and widely acknowledged
13 Though by no means all parts of government.

14 As well as EU Directives.
amongst senior practitioners and policy makers. There is also an unusual potential
convergence of interests between employers and unions which offers much to build upon
if approached in a spirit of a problem to be resolved.
Conclusion: Best Practice and the Challenges Ahead

Tackling the gender pay gap in the public sector undoubtedly requires a much broader
perspective than those typically employed, and requires movement away from ‘risk
avoidance’ strategies15 to a more positive and proactive agenda. Indeed, the Gender
Equality Duty (GED) contains specific duties on consulting with trade unions and
addressing the gender pay gap.16
A starting point for some is the process of pay audits and review to show the extent
of the problem to be addressed – across grades and not just within grades, and with due
regard to the stone floor as well as the glass ceiling – and then the use of outcome based
measures to evaluate new policies and procedures. There is evidence, in small pockets,
of some employers working alongside unions to build much more imaginative equalities
agendas covering a gamut of best practices which address all aspects of discriminatory
employment practices: from recruitment and selection, through training, work/life
flexibilities, and promotion. Some of the best of these go beyond narrowly construed and
legalistic approaches to ‘equal value’ to look at undervaluation, truncated career paths
and the possibility for creation of ‘new’ jobs which carry a more rounded views of ‘skills’
and involve ‘links and ladders’ in their construction.
However, such approaches have been all too rare and frequently also deeply dependent
at local levels upon a very senior ‘sponsor’ within the organisation. Far more frequently
those who start out with imaginative and enlightened approaches are stymied by lack
of support at different organisational levels, a position which is then entrenched by
the straitjacket of financial constraints. The history of public services is littered with
projects which end up delinking training and pay, and which are focused on the glass
ceiling because the stone floor (where so many women are located) is so much more
expensive and complex to tackle. In practice, ‘low road’ and labour substitution and even
privatisation approaches have tended to predominate and have actually exacerbated the
gender pay gap where they do (see, in particular, Thornley 2003b, 2006, 2008).
It perhaps goes without saying that the terrain is likely to get even more challenging.
Even prior to the current recession, there were global trends to liberalisation and
privatisation,17 and funding constraints were already making the task of addressing
15 A temptation for employers in the past has been to make a risk analysis against the potential for litigation – these
have routinely miscalculated the potential for very large and costly cases, as well as doing little to address causation
underlying the gender pay gap. The public sector was (and is) highly susceptible to litigation (see, in particular, Kingsmill
2001: 7, and Local Government Pay Commission 2003: 93–94). Several ground-breaking cases were brought by UNISON
from its formation involving millions of pounds of back pay (Thornley 2006: 353–354); since then a number of ‘no-win,
no-fees’ lawyers have increased the number of cases sharply, with significant implications. At the time of writing (April
2010), a new tribunal ruling in local government in Birmingham has once again demonstrated the potential for costly
outcomes from the viewpoint of employers and for very high pay outs to staff: see http://web.orange.co.uk/article/news/
women_win_multi_million_council_equality_case_1
16 A position which is likely to be reinforced by the new Equality Act – albeit if by integrating multiple equality
strands in an echo of the academic ‘intersectionality’ approaches it also runs the risk of confusing the issue.
17 A very comprehensive review of key global trends in liberalisation, and of corporate interests (particularly US-
based) in sponsoring it, is given in International Labour Organisation, (ILO) (2005/2006).
equalities difficult. The recession, and level of public indebtedness, are both likely to
intensify these pressures, and most are predicting absolute cuts in public services and/or
pay and/or employment in future years. There has also been a trend in the mass media to
sustain public perceptions that public servants are doing relatively well at a point when
private sector workers are suffering. And electoral uncertainties at the time of writing add
to this picture.
This terrain is likely to prove difficult for those working for greater equalities from
both the employer and union sides. But at the same time, and setting to one side the
moral case that women should not suffer disproportionately from recession, the pragmatic
case for best practice and ‘new model’ employment discussed in this chapter is likely to
remain a reality, and is likely to do so for as long as women working in the public sector
fail to get a fair deal at work.
It is thus important that employers and unions keep their ‘eye on the ball’. And there
is here also a role to be played by academics – the temptations inherent in ‘diversity’
and ‘intersectionality’ approaches are that the focus shifts to individuals and individual
agency at the expense of collective experience and agency. While such approaches in
some respects would appear to accord with the recent drift of legislation and a desire to
accord equal weight to all forms of discrimination and to ‘human rights’, it is far from
clear that these provide an adequate basis for understanding and change previously better
met by specialist approaches. Whether this gap can be successfully breached remains a
major challenge for writers in this area.
References
Bach, S. and Winchester. D. (2003) ‘Industrial Relations in the Public Sector’, in P. Edwards (ed.),
Industrial Relations: Theory and Practice (2nd ed.), Oxford: Blackwell, pp. 285–312.
Beaumont, P.B. (1992) Public Sector Industrial Relations, London and New York: Routledge.
Carter, B. and Fairbrother, P. (1999) ‘The Transformation of British Public Sector Industrial Relations
from “Model employer” to Marketised Relations’, Historical Studies in Industrial Relations, 7
(Spring), 119–146.
Coffey D. and Thornley, C. (2009) Globalization and Varieties of Capitalism: New Labour, Economic
Policy and the Abject State, Basingstoke and New York: Palgrave MacMillan.
Conley, H. (2003) ‘Temporary Work in the Public Services: Implications for Equal Opportunities’,
Gender, Work and Organisation, 10:4, 455–477.
Farnham, D. and Pimlott, J. (1995) Understanding Industrial Relations, London: Cassell.
Fredman, S. and Morris, G. (1989a) The State as Employer: Labour Law in the Public Services, London:
Mansell.
Fredman. S. and Morris, G. (1989b) ‘The State as Employer: Setting a New Example’, Personnel
Management, August.
ILO (International Labour Organization) (2005/2006) Winners or Losers? Liberalizing Public Services,
E. Rosskam, (ed.), Geneva: International Labour Office.
Kingsmill, D. (2001) The Kingsmill Review, http://www.kingsmillreview.gov.uk [accessed 9 November
2005].
Labour Market Trends (2004) Labour Market Trends, July, http://www.statistics.gov.uk [accessed 12
March 2006].
—— (2006) Public Sector Employment 2006: Seasonally Adjusted Series and Recent Trends, 114:12, 419–
438.
Local Government Employers (LGE) (2006) Unblocking the Route to Equal Pay in Local Government,
November.
Local Government Pay Commission (LGPC) (2003) Report of the Local Government Pay Commission
(kindly provided by UNISON).
McBride, A. (2001) Gender Democracy in Trade Unions, Aldershot: Gower.
Morris, P. (2000) ‘UNISON and Low Pay Policy’ in M. Terry (ed.), Redefining Public Service Unionism,
London: Routledge, pp. 155–166.
People Management Online (2007) ‘Councils’ deal fear’, http://www.peoplemanagement.com
[accessed 25 June 2007].
PLC (2006) Union’s Failure to Pursue Equal Pay Litigation was Sex Discrimination, http://www.
practicallaw.com [accessed 25 June 2007].
Terry, M. (ed.) (2000) Redefining Public Service Unionism, London and New York: Routledge.
Thornley, C. (1996) ‘Segmentation and Inequality in the Nursing Workforce: Re-evaluating the
Evaluation of Skills’, in R. Crompton, D. Gallie and K. Purcell (eds), Changing Forms of Employment:
Organisations, Skills and Gender, London: Routledge, 160–181.
—— (1998) A Question of Fairness: Nurses’ Pay Trends 1979–98, London: UNISON (Evidence to the
Review Body for Nurses).
—— (2000) ‘UNISON and Low Pay Policy’, in M. Terry (ed.), Redefining Public Service Unionism,
London: Routledge, 167–174.
—— (2001) ‘Divisions in Health-Care Labour’, in C. Komaromy (ed.) Dilemmas in UK Health Care,
Buckingham: Open University Press, 85–107.
—— (2003a) Cold Comfort: The State of Local Government Pay and ‘More Cold Comfort’, A UNISON
briefing for the NJC Local Government Pay Commission, April, London: UNISON.
—— (2003b) ‘What Future for Health Care Assistants: High Road or Low Road?’ in C. Davies (ed.),
The Future Health Workforce, Basingstoke: Palgrave Macmillan.
—— (2004) Perceptions at Work: Women and Men in Local Government, London: UNISON.
—— (2005) Still Waiting? Non-registered Nurses in the NHS, an Update, London: UNISON (Evidence to
the Review Body for Nurses).
—— (2006) ‘Unequal and Low Pay in the Public Sector’, Industrial Relations Journal, 37:4 (July),
344–358.
—— (2007) ‘Working Part-Time For The State: Gender, Class And The Public Sector Pay Gap’, Gender,
Work and Organization, 14:5 (September), 458–479.
—— (2008) ‘Efficiency and Equity Considerations in the Employment of Health Care Assistants and
Support Workers’, Social Policy and Society, 7:2, 135 –146.
UNISON (2007) ‘Equal Pay: Winning for all’, http://www.unison.org.uk [accessed 26 June 2007].
6 Pay Inequality in
chapter
Manufacturing Industry:
The Case of the
Printing Industry
TRICIA DAWSON
Introduction
Pay inequality is a key source of legislative vulnerability for UK employers. It is clear
from recent research that the gender pay gap is persistent and operates ‘across equalities
areas’ (Longhi and Platt 2008); that means, despite other characteristics, gender remains
a central indicator of unequal pay. The latest official statistics indicate that on average
there is a 15.5 per cent gap between men’s and women’s hourly earnings and a 15 per cent
gap between their weekly earnings (ONS 2010). At the same time women are becoming
more aware of their rights and trade unions are increasingly supporting large scale equal
pay claims to employment tribunals (The Guardian 7 April 2009; The Times 28 July 2008).
The cost of ignoring pay inequality may be reaching the point where it is too high to take
risks. At the same time social justice arguments for greater equality are becoming more
insistent (Noon 2007; Bellamy and Rake 2005).
Evidence suggests that the pay gap in the private sector is higher than that in the
public sector (Kingsmill 2001). It is also claimed that at the current rate of progress it will
be 2065 before women achieve pay equality (Bellamy and Rake 2005: 30). Organisations
clearly need to consider how they might avoid legal penalties while delivering greater
pay equality for women in manufacturing industry. The Equality Act 2010 aims to tackle
some of the issues raised by this printing industry case study but, as will become clear, it
may not be sufficient to result in a significant improvement in the pay gap.
The case study presented here builds on research conducted in many different sectors
(for example, Cockburn 1983; Burchell et al. 1994; Colling and Dickens 1989; Bradley
1999) and reveals parallels with the problems experienced by women across industry
in accessing well-paid jobs and getting paid according to their skills. Using data from
research conducted in the British printing industry,1 it is possible to begin to determine
1 The data was collected in 2002 and consisted of interviews with employers and trade union officials, as well as a national
survey of men and women union members working in the industry from which a sample of 30 interviewees was identified.
strategies that may help to remove the barriers that currently embed women’s low pay.
First, the underlying contributing factors will be outlined before moving on to examine
the links between pay determination and the valuation of women’s skills, as well as the
effects of occupational segregation in limiting women’s employment choices.
Barriers to Achieving Equal Pay

Because the valuation of work has been largely explained by traditional demand and
supply theories, women’s low pay has tended to be justified as being a simple reflection
of their lower worth. This ignores evidence that in reality pay systems are not necessarily
rational (Phelps Brown 1977; Brown and Nolan 1988) and tend to incorporate many
social factors that undermine supply and demand, for example, existing wage structures,
work organisation and related practices, the nature of technology and the responses of
existing workers to these developments (Craig et al. 1984). Powerful groups of workers,
usually men, have benefited often at the expense of women workers and such processes
have been embedded through occupational segregation.
Occupational segregation occurs in two forms: horizontal segregation leads to the sex-
typing of jobs, that is, the identification of particular jobs with one sex or the other, and
vertical segregation leads to men dominating the top positions in the hierarchy (Beechey
1986). It is through the implementation of employment policies that the gendered
division of labour has been institutionalised.
Horizontal segregation is fuelled by recruitment and promotion practices that remain
based on traditional gender stereotypes in manufacturing industries. So, even where
women have gained similar levels of qualifications or experience to men, occupational
segregation may not decrease (McEwen Scott 1994) because employers are unwilling
to recruit women to non-traditional jobs. In addition, the cheapness and perceived
reliability of informal recruitment methods, such as word-of-mouth recommendation,
is often preferred, thereby replicating existing gender divisions in the workforce.
Vertical segregation arises when ideas about suitability and acceptability impact on both
recruitment and promotion so that, even in areas where women are the majority workers,
it tends to be men that get promoted to supervisory roles (Craig et al. 1984: 77). Even the
increase in women managers is unlikely to challenge these trends because they are forced
to replicate the practices that fit a male managerial model (Connell 1983).
Skill is a gendered concept that has often been used to define the jobs that women do
as automatically unskilled (Phillips and Taylor 1980). This also has the effect of generating
an attitude that women are largely irrelevant when work organisation is considered
because they do not possess valuable skills. Thus, women become invisible and tend
to be ignored, particularly when restructuring occurs, unless the restructuring requires
that their jobs or pay are sacrificed. It is often assumed that women are non-technical
(Cockburn 1994) and so when new technology arrives, it may either reduce the scope for
women’s involvement in the new processes or actually lead to their removal in favour
of the assumed technical superiority of men. Even where women remain, it has been
observed that re-segregation occurs in the new processes, tending to leave them in the
lowest-paid jobs.
The usual means of redress is to call for more training for women but this tends to
fail largely because men’s sense of ‘owning the organisation’ (Cockburn 1991) tends to
Pay Inequality in Manufacturing Industry 71
lead them to expect preferential access to any training provided and because jobs subject
to skills’ shortages tend to be male-dominated and the easiest solution is to fill them
with ‘suitable male candidates’ (Women and Work Commission 2006; Dickens 2005).
Furthermore, there is still a strong residual belief that it is not worth training women who
may take time out for childbearing and care and certainly flexible working tends to be
rare where craftwork dominates (Dex and Smith 2002). The resulting lack of qualifications
supports the notion that women are simply paid what they are worth (Mincer and
Polachek 1974) rather than stemming from underlying discrimination.
Women do not have access to power resources in the same way that men and
employers do (Bradley 1999). As a result women have been pushed into the background,
rendered largely invisible through both overt and covert forms of power that tend to
create a view that the status quo is natural (Lukes 2005) and cannot be successfully
challenged. Frequently, women have been perceived as irrelevant to decisions on work
organisation and pay determination, even when their work is central to the survival
of the organisation, and this has served to embed their low pay. The system of power
resources utilised here was developed from Bradley’s original schema (1999) and includes,
but is not restricted to, technical power (knowledge of work processes), positional power
(hierarchical position), collective power (formation of groups with common interests),
legal power (utilising the law to challenge the status quo), physical power (ability to
undertake heavy work), sexual power (linked to sexual harassment), symbolic power
(ability to interpret aspects of work organisation and pay systems), and economic power
(access to a variety of rewards). In order to tackle women’s low pay it will, therefore, be
necessary to identify ways to empower women and render them visible when decisions
on work organisation and pay determination are being considered.
The British Printing Industry

This study focused on general and commercial printing, which covered magazines,
packaging, advertising materials, security printing, business forms, books, stationery and
catalogues (Gennard and Bain 1995). The industry is characterised by a large number
of small and medium-sized companies with a few large multinationals dominating the
sector. Each of these forms is represented in the research. Jobs in the sector were broken
into three main categories: pre-press (all the work necessary to prepare material for
printing); printing (setting up printing machines and printing the work); and finishing/
bindery (all the operations necessary to turn the printed product into a finished article
ready for despatch). Pre-press was male-dominated despite some encroachment from
women during periods of computerisation but retained its skilled categorisation; printing
has always been regarded as skilled and almost totally dominated by men; and finishing
was dominated by women, although the jobs denoted as skilled within this section were
dominated by men. There has traditionally been little part-time working in the industry
and this was also borne out by the research.
Traditionally, this was a highly unionised sector, which relied heavily upon the closed
shop.2 Estimates at the time of conducting the research suggested that union density was
2 The closed shop was an attempt to secure 100 per cent membership in each establishment that was union organised and
was a specific objective in the union’s rule book throughout its existence and in the rule books of its constituent unions.
still in excess of 60 per cent in this sector. The Graphical, Paper and Media Union (GPMU),
the main union at the time of the research,3 was the result of merger between the Society
of Graphical and Allied Trades (SOGAT) and the National Graphical Association (NGA).
These two unions broadly represented the split between non-skilled and skilled workers,
respectively. They were also the result of many previous mergers (see Gennard 1990; and
Gennard and Bain 1995). Consequently, the NGA had few women members but retained
the dominant positions in the GPMU and therefore the major impact on policy direction.
Women were 17 per cent of GPMU membership.
Employment in the industry was traditionally male-dominated, women constituting
around a third of the industry since the 1970s but was higher, at around 38 per cent,
before the Second World War. Since the 1980s there have been fluctuations around a
generally declining trend for both women and men, so that by 2002 there were 193,900
men and 101,600 women employed full-time in the industry (ONS 2003).
GPMU members were interviewed and surveyed for this research and the employers
interviewed were members of the British Printing Industries Federation (BPIF).
Those members interviewed for the research were chosen to represent a variety of
characteristics, including occupation, region, company size, age, sex and pay grade.
One manager out of the five interviewed was female and worked for a multinational
and four of the union officials out of the fourteen interviewed were women (one of
whom was retired). The results of this research reveal interesting lessons that can be
learned about discrimination in the private sector, especially in view of the statement
made by the Conservative Party spokesman in the final debate on the Equality Bill
as it passed into law as the Equality Act 2010. Mark Harper, MP said that they did
not agree with three aspects of the Bill and that if they formed the next government
they would not, ‘bring those three requirements – socio-economic duty, the mistaken
way in which the Government are tackling equal pay, and positive action … – into
force’ (quoted in the monthly employment law newsletter, emplaw.co.uk4). Now the
Conservatives are the biggest partner in the coalition government this does not bode
well for improved legislation on equal pay, making this research even more relevant to
the implementation of the Equality Act 2010. ‘Pay Determination and the Valuing of
Women’s Jobs’, and ‘Access to Higher-Grade Jobs’, look at the effects of pay and work
organisation processes on women’s pay.
Pay Determination and the Valuing of Women’s Jobs

The gender pay gap in the printing industry is wider than that in Britain as a whole,
women earning just 64.4 percent of male median weekly earnings (50.2 percent of
median hourly earnings) (ONS 2002) when this research was conducted. Table 6.1 reveals
the unequal dispersion of pay between the sexes in the industry. Over £350 per week
gross pay women’s representation tailed off as men’s increased.
3 The GPMU has since become part of UNITE, following a merger of Amicus (which GPMU joined in 2004) and the
Transport and General Workers Union (TGWU) in 2007.
4 At http://www.emplaw.co.uk.
Table 6.1 Gross pay per week for full time workers – percentages by sex
No £51– £101– £151– £201– £251– £301– £351– £401– £451–

<£50 >£500 Total
reply 100 150 200 250 300 350 400 450 500
Men
8.4 0.0 0.0 0.5 0.3 5.8 8.1 13.8 13.5 18.5 2.9 28.2 100
%
Women
16.3 0.2 2.0 6.1 7.4 21.3 16.1 13.3 8.6 4.7 0.5 3.5 100
%
Total 12.3 0.1 1.0 3.1 3.8 13.2 12.0 13.6 10.9 12.1 1.8 16.1 100
Source: Survey of GPMU members 2002 (N=1216).
The printing industry pay structure was a simple one, reflecting the basic demarcation
of jobs and covered by a national agreement between the BPIF and GPMU. Class 1 denoted
skilled work, that is, all the jobs in pre-press, most of the jobs in printing and some in
finishing; Class 2 denoted semi-skilled work in printing, primarily machine assistants;
and Class 3 denoted unskilled work and related to finishing/bindery jobs. The latter was
where most of the women were employed. Basic pay relativities, based on the Class 1 rate,
appeared small. In fact, a number of additional payments that accrued largely to Class 1
occupations significantly widened the gap between these grades. These payments were not
based on productivity but on types of machines operated and working patterns, that is,
shift and overtime premiums. This pay structure continues to the present day.
Women in the printing industry have fought a long battle to be considered as skilled
workers. As one woman said:
I have with me a list of women’s work graded class 3, the lowest. There are forty-nine different
operations, and women in the course of a week’s work could be called on to do every one of them …
A great many of our firms employ only two or three women, therefore, interchangeability is a
must. So it is not unusual to find yourself doing a dozen or more different job operations in the
course of a day’s work.
(SOGAT BDC, 1976: 398)
While work organisation has changed somewhat over the years, more recent interview
evidence revealed that the general tenor of this comment still holds true. However, the
ability to utilise generalised assumptions about ‘women’s work’ could provide a means to
justify lower pay. For instance, it has often been assumed that women do not do heavy
lifting (Walby,1990) but evidence from interviewees in the printing industry suggested
otherwise. A woman union official observed that ‘women were always pack horses; men
have machinery for moving reels’. The experience of a woman worker confirmed this.
She explained that, while men were supposed to help with heavy lifting:
There can be 10 items [for feeding into machines], so the stock gets piled up far away from the
machine, so you have to pick up the boxes and they can weigh up to 15–20 kilos. We should
have someone to lift but with 10 or 12 machines running it’s not possible, so you do your own
or get shouted at for downtime.
As this is not an official part of their job it is easy to overlook when grading jobs. It
has been observed that men may seek to justify higher pay through claims to greater skill
when, in fact, strength is the issue (Cockburn 1983:174–175, 203–204). Similarly, the
informal nature of women setting machines is also ignored, as earlier research also noted
(Craig et al. 1984: 37; Beechey and Perkins 1987), whereas men receive a premium for
this work. In both cases informality leads to invisibility. Here, managers’ positional power
gives them the (symbolic) power of interpretation, allowing them to define what will
count towards pay determination. Male union members may see no need to challenge
this as it has preserved their own economic power in the pay hierarchy, so their collective
and technical power embeds this interpretation.
Furthermore, the case study revealed that men, who either have a craft apprenticeship
background (whether union or management representatives) or have held positional
power for many years alongside such men, dominate pay determination. This has
resulted in embedded assumptions about women’s lesser worth as workers, justifying
their invisibility in pay determination processes. As one manager said, ‘finishing, in your
mind, is of lesser value, so you don’t pay as much’.
In the private sector management often sets pay unilaterally and so equality issues may
be less likely to be considered. But even where there is collective bargaining there may have
been limited progress in pursuing equal pay. Under pressure from the GPMU’s Women’s
Committee, the bargaining agenda regularly included items that explicitly addressed
equality issues but negotiating processes ensured these seldom resulted in concrete
improvements for women on the shop floor. For instance, in printing, negotiating always
focused on the pay rise for Class 1 with little thought given to the consequences for those
lower down the grading structure. The prioritising of bargaining agenda items tended to
mean that equality issues were raised early in proceedings; met with resistance from the
employers; and fell off the agenda. In any case, while many equality issues were raised
over the years these never included discussions around women’s pay but tended to focus
on general equal opportunities clauses, harassment and maternity rights. This reflected a
union strategy of focusing on occupational segregation as the main issue rather than the
undervaluation of ‘women’s work’, an approach the employers supported (see Achieving a
Balance, BPIF 1988). Similarly, the employers’ focus on the ‘bottom line’ became apparent
when the BPIF representative explained, ‘the business case is not sufficient in itself because
of other [production] pressures’. He also characterised the union as pursuing a business
case approach to equality:
Most employers are well aware that the union needs to grow its membership base ... [and] are
not surprised that most minority groups are on the list. The union is a business that needs to
grow.
The inference was that this approach lacked the legitimacy of the traditional bargaining
agenda. The power of interpretation linked with employers’ and male union members’
collective power, therefore, served to restrict the bargaining agenda, rendering issues of
importance to women invisible and irrelevant, overwhelming women’s collective power
to challenge these processes.
Employers also reinforced gender pay inequality through three other mechanisms.
On the one hand, the federation representative explained how they took advantage of
union weakness to widen differentials between the predominantly men’s grades and
the predominantly women’s grade; ‘we hoped that over time ... [differentials] would
widen out’ (BPIF representative). The justification for this approach was based on false
comparisons between women in printing and other industries and assumptions about
‘women’s work’. As one national official said:
I think they’re [the employers] just comparing other industries where there’s unskilled workers
on low pay. I don’t think it’s a … measured comparison or even one that they try to justify on
the basis of similar or same work being undertaken. It’s just vis-à-vis skilled and unskilled.
On the other hand, employers also pushed for full cost recovery, which meant that all
national pay deals would be self-financing. This encouraged the extension of flexibility
and reduction in headcount but, as discussed in the next section, women bore the brunt
of this strategy. Last, employers used the power of interpretation to identify equality
issues as ‘social issues’, which tended to de-legitimise their importance in bargaining.
At local level, the union failed to police the implementation of the national agreement
and were rarely proactive in pursuing equality for women workers. Both employers and
union officials tended to wait for women to raise issues with them that might have legal
consequences. As none of the employers interviewed had faced litigation there was no
pressure to address gender inequality. The woman HR director of the multinational felt
that the link between pay progression and job progression would be sufficient to ensure
there were no equal pay issues, thus ignoring the gendered nature of job grading and
ensuring that pay inequality was embedded. This was further reinforced at local level
because bargaining was usually conducted on a departmental basis and departments
often aligned with the gender split in occupations (see below). Women’s legal power has
been insufficient to successfully challenge the power of inaction (Lukes 2005: 68) that
supports the status quo.
Successful challenges have been rare given the focus on occupational segregation
rather than equal pay but have arisen from three sources. In one case a woman official
had challenged the operation of the national agreement on the basis that women tended
to do many Class 3 occupations, which cumulatively, would equate with a higher grade in
equal value terms. Occasional legal challenges on the same grounds were also successful
but ad hoc rather than strategic;5 instead the aim was to settle equal pay claims through
negotiation. This contrasts with the approach of UNISON in the public sector, where a
combination of collective bargaining and litigation, alongside education and political
campaigning has resulted in improvements for women (Thornley 2006). The other route
to success has been when a respected male union official with a traditional approach to
bargaining has championed specific equal pay cases. When men originating from the
shop floor were seen to take these issues seriously other male workers appeared more
likely to support change. This broke with men’s collective power to retain the status quo
but tended to occur in circumstances where women were threatening to use their legal
power. It is therefore important that interview evidence revealed women’s awareness of
equal pay legislation and a willingness to use it where practicable.
5 A case involving a company in the North West and the GPMU went to tribunal but was settled by agreement to
conduct a job evaluation within the company that resulted in Class 3 table hands (women) being found equal to Class 1
guillotine operators (men). However, this case was never used to challenge the BPIF agreement more widely.
Access to Higher-Grade Jobs

If getting a fair valuation for the work done is hard, getting access to higher-paid jobs
is just as difficult. The case study revealed a continuation of the historical gendering of
jobs.
Table 6.2 The sexual division of labour by department
Women Men
Pre-press 6.1% 15.3%
Printing 4.0% 38.5%
Finishing/bindery 52.8% 23.5%
Other 34.2% 20.6%
Non-response 3.0% 2.1%
Total 100% 100%
Table 6.3 The sexual division of labour within each department
Pre-press Printing Finishing/bindery

Women 26.3% 8.9% 66.5%
Men 69.3% 88.2% 30.9%
Non-response 4.4% 3.0% 2.5%
Total 100% 100% 100%
Whether the industry is viewed by the gender splits in departments or the departmental
split by gender, Tables 6.2 and 6.3 suggest that women have been effectively denied access
to jobs regarded, and paid, as skilled. This has been sustained through the increased
use of functional flexibility, utilising increased mechanisation of printing machines to
telescope some traditional women’s work into printers’ jobs. Women’s employment has
consequently reduced.
The criteria for employment in skilled jobs appeared to be subject to line managers’
perceptions of suitability and acceptability. Given that line managers tended to have
a craft background and that other research has identified managers’ poor record of
assessing jobs dissimilar to their own (Burchell et al. 1994: 177, 180), it becomes easier to
understand the continuation of women’s segregation into lower-paid jobs. As one union
official made clear, ‘it was not on anyone’s [employers] radar screen’ that women would
get skilled jobs, or that they might be seen as a solution to the longstanding problem of
skills shortages.
Recruitment was also subject to a ‘family effect’. Informal methods of recruitment
including family/personal recommendations and the local union as a source of job
information reinforced segregation. For instance, a woman union official explained how
it was common for male craft workers to obtain jobs for their wives or partners in the
bindery. Given that over 50 per cent of all survey respondents, regardless of sex, obtained
their jobs through word of mouth recruitment, the importance of social networks in job
search and in designating the ‘social composition of the workforce’ (Grieco and Whipp
1986) becomes apparent. It was also clear that these factors affected promotion as, not
only did women not get access to skilled jobs, ‘but they can’t even become the supervisor
of the Class 3 jobs’ (male union official).
Unmonitored, decentralisation of human resource management to line managers
has also been implicated in preventing increased diversity (Dickens 1997; Kirton and
Greene 2005) and one HR director revealed this was a feature in the multinational she
represented. She also denied that the union had a role in delivering equality, in particular,
the elimination of sexual harassment, despite admitting that four such incidents had
occurred in ten months. Harassment (a form of sexual power) can embed segregation
because women perceive the costs of entering male dominated occupations as too risky
(Cockburn 1988).
Another key factor appeared to be the industry’s poor record on family-friendly
employment. Interview and survey evidence indicated that women tended to leave
service when they had children, take on less well paid work, and then return to the
industry later in life. Full-time employment was generally required and there were few
opportunities to work part-time. Additionally, the survey revealed evidence of a ‘long
hours’ culture’, where only 19 per cent of women and 11 per cent of men never worked
overtime. Around a quarter of both sexes worked, on average, six to nine hours extra
per week. Similarly, shift working was common, with 73 per cent of men and 42 per
cent of women working shifts. The evidence suggested a less than enlightened attitude
to childcare among employers, with one woman declaring her company had ‘never
ever worked round people with kiddies. You either accept it, or you don’t’. In another
instance, a woman took maternity leave of 15 weeks and on return was placed on a lower
graded machine. Additionally, some 98 per cent of respondents could not identify any
help with childcare available in their companies. The case study also supported earlier
evidence (Craig et al. 1984: 83) of a reluctance to train women who may take time out
for childcare.
This evidence reveals that employment policies are working to reinforce the status
quo. Recruitment, promotion and training policies are implemented to ensure that
women cannot encroach on ‘men’s work’. In part, this recognises male workers collective
power, reinforcing men’s sense of owning the job (Cockburn 1991: 46). But employers are
also utilising their economic, positional and collective power resources to gain the benefit
of women’s cheap labour. Their ability to define the industry as mainly suitable for full-
time workers removes the need to accommodate childcare and allows for re-employing
these skilled women at a later date when childcare is no longer an issue.
Conclusion: Achieving Equal Pay in Manufacturing Industry

The above discussion reveals an imbalance in access to different power resources that
makes it difficult for women to successfully challenge their position in the pay hierarchy.
Both men and managers have been able to treat women’s contribution to production
as irrelevant and thereby justify their low pay, reinforcing their apparent irrelevance by
embedding occupational segregation in technological change. They have also been able
to control the operation of pay processes, restricting negotiation to issues of occupational

segregation, not undervaluation.
The usual arguments for delivering equality are to stress the importance of diversity
and the business case benefits (Kingsmill,2001; Women and Work Commission 2006).
However, the limitations of the business case, identified elsewhere (Dickens 1997; Noon
2007), are also evident in this study; production pressures and a lack of litigation removed
any compulsion to act.
A systematic analysis of the barriers to equal pay evident in this case study can begin
to point to measures that may provide some leverage in narrowing the pay gap more
generally. Employers gained women’s cheap labour by ignoring the actual content of
women’s jobs. They also utilised inaccurate comparisons with women workers in other
industries, which devalued women’s work; and delegitimised equality issues through
designating them ‘social’. The employer’s belief that the union was only pursuing equality
at all because of its need to survive reinforced the lack of legitimacy. Meanwhile, the
union’s strategic focus on occupational segregation reduced the importance of equal pay
bargaining and sustained the focus on the highest paid men. As a result there was seldom
a proactive approach to equality at the workplace. The lack of litigation also removed
pressure from employers to act on inequality. Consequently, pay processes embedded
unequal pay outcomes, especially in relation to the extra payments that constituted a
major element of the pay gap.
Work organisation processes further restricted the scope for women to earn higher
pay. Recruitment and promotion processes that relied on craft-trained line managers for
their implementation were unlikely to challenge the traditional criteria for acceptability
and suitability that normally characterised selection. Furthermore, Grieco and Whipp’s
observation (1986: 120) that family and social networks embed segregation was confirmed
here. Segregation was compounded by the reorganisation of work, which also removed
women’s jobs. Finally, the lack of family-friendly employment led women to self-select
on the basis of whether they could successfully manage the double burden of work and
domestic responsibilities.
The argument that invisibility was crucial to continuing pay inequality might be
expected to fall, given the passage of the Equality Act 2010. Women’s collective power
has produced a successful campaign to bring much of the equality legislation together.
However, the much-heralded requirement to publish pay gap data is qualified by its
application to companies with over 250 employees (UNISON and Fawcett Society 2009).
Many of the women in this case study will not benefit from this important change because
their companies are too small to be captured by its provisions. This will be true for some
59 per cent of private sector workers (ibid.: para. 3.3). The data publication provision
is also subject to regulation, rather than primary legislation. This is easier to avoid or
remove than primary legislation and is therefore considerably more vulnerable to the
motivation of the party in government.
In any case, the above discussion makes it clear that there are already legal grounds
on which to make an assault on the pay gap. The landmark case (see footnote 4) that
identified equal value between a Class1 occupation and a Class 3 occupation clearly calls
into question, not the national agreement itself but its interpretation. At present, the
agreement will classify a job as graded Class 3 no matter how many tasks are undertaken.
This ignores the cumulative effect of undertaking numerous Class 3 tasks. It is within the
power of the negotiating parties to change this interpretation to take account of equal
value as the woman official did in her successful equal pay negotiation. Furthermore, the
effect of extra payments links both work organisation and pay processes and unless the
provisions of the law can expose both the pay gap would remain in printing. While these
are not bonuses as such, similar considerations would apply to bonus payments. It is the
criteria for grading jobs as eligible for such payments that requires exposure.
In this regard, forming alliances with supportive men (Colgan and Ledwith 1996)
is also a necessary step. As noted in this case study, the importance of male workers
identification with male union officials in gaining their consent to negotiating equal pay
cannot be underestimated.
Another crucial issue is the provision of family-friendly employment in the
manufacturing industry. Dex and Smith (2002: 25) confirmed that where craft-working,
and therefore largely male employment, predominates flexibility is rare. If this case study
is replicated in other sectors, then women in manufacturing employment will require
much stronger legal rights to flexible working and access to childcare that can cater for a
world based on 24/7 working patterns.
On this evidence, it is clear that the gender pay gap could be reduced. Practitioners
could take action now in the interpretation of agreements, work and pay practices, forging
alliances between women and supportive men to challenge the status quo. However, it
would also require robust legal provisions to overcome invisibility – publishing pay data,
would be a start but alone will not achieve a closure of the pay gap as it is the underlying
pay and work organisation processes that must be exposed. Strengthening rights to
flexible working and better access to affordable childcare also remain a priority. The range
of power resources that men and managers have access to can only be counteracted by
providing women with sources of power that allow them to challenge the status quo. This
requires comprehensive and effective legal and policy developments that will only come
from women’s continued campaigning.
References
Beechey, V. (1986) ‘Women and employment in contemporary Britain’, in Beechey, V. and Whitelegg, E.
(1986) Women in Britain Today, Milton Keynes: Open University Press.
Beechey, V., and Perkins, T. (1987) A Matter of Hours: Women, Part-time Work and the Labour Market,
Cambridge: Polity Press.
Bellamy, K. and Rake, K. (2005) Money, Money, Money: Is it Still a Rich Man’s World? An Audit of
Women’s Economic Welfare in Britain Today, London: Fawcett Society.
Bradley, H. (1999) Gender and Power in the Workplace, Basingstoke: Macmillan.
British Printing Industries Federation (1988) Achieving a Balance: A Guide to Equal Opportunities in the
Printing Industry, London: BPIF Joint Training Council.
Brown, W. and Nolan, P. (1988) ‘Wages and labour productivity: The contribution of industrial
relations research to the understanding of pay determination’, British Journal of Industrial
Relations, 26: 3.
Burchell, B., Elliott, J. Rubery, J. and Wilkinson, F. (1994) ‘Management and employee perceptions
of skill’, in Penn, R., Rose, M. and Rubery, J. (eds) (1994) Skill and Occupational Change, Oxford:
Oxford University Press.
Cockburn, C. (1983) Brothers: Male Dominance and Technological Change, London: Pluto Press.
—— (1988) ‘The gendering of jobs: workplace relations and the reproduction of sex segregation’, in
Walby, S. (ed.) (1988) Gender Segregation at Work, Oxford: Oxford University Press.
—— (1991) In the Way of Women, Basingstoke and London: Macmillan.
—— (1994) ‘The relations of technology: What implications for theories of sex and class?’, in
Crompton, R. and Mann, M. (eds) (1994) Gender and Stratification, London: Polity Press.
Colgan, F. and Ledwith, S. (1996) ‘Sisters organising women and their trade unions’, in Ledwith, S.
and Colgan, F. (eds) (1996) Women in Organisations, Basingstoke and London: Macmillan.
Colling, T. and Dickens, L. (1989) Equality Bargaining – Why Not?, London: The Stationery Office.
Connell, R.W. (1983) Which Way is Up?, London: Allen and Unwin.
Craig, C., Garnsey, E. and Rubery, J. (1984) Payment Structures and Smaller Firms: Women’s Employment
in Segmented Labour Markets, Research Paper No. 48, London: Department of Employment.
Dex, S. and Smith, C. (2002) The Nature and Pattern of Family-Friendly Employment Policies in Britain,
Bristol: The Policy Press (for the Joseph Rowntree Foundation).
Dickens, L. (1997) ‘Gender, race and employment equality in Britain: Inadequate strategies and the
role of industrial relations actors’, Industrial Relations Journal, 28: 4, 282–291.
—— (2005) ‘Walking the talk? Equality and diversity in employment’, in Bach, S. (2005) Managing
Human Resources, Oxford: Blackwell.
Dex, S. and Smith, C. (2002) The Nature and Pattern ofFfamily-friendly Employment Policies in Britain,
Bristol: The Policy Press (for the Joseph Rowntree Foundation).
emplaw.co.uk (2010) Monthly Employment Law Newsletter, May 2010, item 2, at http://www.
emplaw.co.uk.
Gennard, J. (1990) NGA: A History of the National Graphical Association, London: Unwin Hyman.
—— and Bain, P. (1995) SOGAT: A History of the Society of Graphical and allied Trades, London:
Routledge.
Grieco, M. and Whipp, R. (1986) ‘Women and the workplace: gender and control in the labour
process’. in Knights, D. and Wilmott, H. (eds). Gender and the Labour Process, Aldershot: Gower.
The Guardian (7 April 2009) ‘Unison Scores Second Legal Victory in a Week for Equal Pay Cases
[accessed 8 April 2009].
Kingsmill, D. (2001) A Review of Women’s Employment and Pay, London: Women and Equality Unit,
Cabinet Office.
Kirton, G. and Greene, A. (2005) The Dynamics of Managing Diversity, Oxford: Elsevier Butterworth-
Heinemann.
Longhi, S. and Platt, L. (2008) Pay Gaps Across Equalities Areas: An Analysis of Pay Gaps and Pay
Penalties by Sex, Ethnicity, Religion, Disability, Sexual Orientation and Age Using the Labour Force
Survey, Manchester: Equalities and Human Rights Commission.
Lukes, S. (2005) Power: A Radical View, London: Palgrave Macmillan.
Mincer, J. and Polachek, S. (1974) ‘Family investments in human capital: Earnings of women’, in
Amsden, A.H. (1980) The Economics of Women and Work, Middlesex: Penguin.
McEwen Scott, A. (1994) ‘Industrialization, gender segregation and stratification theory’, in
Crompton, R. and Mann, M. (eds) (1994) Gender and Stratification, Cambridge: Polity Press
Noon, M. (2007) ‘The fatal flaws of diversity and the business case for ethnic minorities’, Work,
Employment and Society, 21: 773–784.
Office for National Statistics (2002) New Earnings Survey, Analysis by Industry, London: HMSO.
—— (2003) Labour Market Trends, 112: 1.
——(2008) Annual Survey of Hours and Earnings, London: The Stationery Office.
Phelps Brown, H. (1977) The Inequality of Pay, Oxford: Oxford University Press.
Phillips, A. and Taylor, B. (1980) ‘Sex and skill: Notes towards a feminist economics’, Feminist Review, 6.
Society of Graphical and Allied Trades (1976) Biennial Delegate Report, 398.
The Times (29 July 2008) ‘Women win landmark equal pay battle’.
Thornley, C. (2006) ‘Unequal and low pay in the public sector’, Industrial Relations Journal, 37: 4,
344–358.
UNISON and Fawcett Society, (2009) The Equality Bill: The Need for Amendments that Tackle Pay
Discrimination, Public Bill Committee Submission.
Walby, S. (1990) Theorizing Patriarchy, Oxford: Blackwell.
Women and Work Commission (2006) Shaping a Fairer Future, London: Department of Trade and
Industry.
7 Career Obstacles,
chapter
Discrimination and
Women’s Independent
Networks: Evidence from
the UK and Germany
NICOLE AVDELIDOU-FISCHER
Introduction
The United Kingdom and Germany are among the most financially powerful countries in
the European Union (IMF 2008), with a steadily growing share of female tertiary students
and a rising proportion of adult women who are economically active (OECD.Stat 2009).
Both countries legislate to ensure equal pay for equal work regardless of gender, and over
the last years, new strands of law have come into force, to extend the Sex Discrimination
Act in the UK and assemble Germany’s scattered anti-discrimination directives into the
General Act on Equal Treatment.
Despite the positive developments in the public sphere and legislation, median wages
for men are higher than those for women in both countries, women are concentrated in
less prestigious, lower income occupations in sectors which are said (Witz and Wilson
1982) to mirror unpaid functions of women inside the home. An important factor behind
their numerical growth in the labour force has been part-time work, while women retain
the primary responsibility for housework and childcare.
Within this contradictory context, the increase of women-only business and
professional networks in the UK (McCarthy 2004) and Germany (Lenz 2008), raises the
question of whether those networks are an effect of women’s growing presence in the
business and professional world or of the conditions under which women’s employment
takes place. Research in this area is rather sparse (Travers and Pemberton 2000) and
tends to treat women-only networks as parts of the same overarching category, no
matter whether they are informal corporate networks, formal long-established societies,
specialised industry groups, or profession-related associations (for example, Frerichs and
Wiemert 2002). Among this variety of networks, there is one form that past studies have
overlooked: independent networks for business and professional women (henceforth
women’s independent networks – WINs). Focusing on WINs, this chapter will provide
insights into a neglected setting, and make an original contribution to the literature on
women’s networks. Linking this to the context described above, this chapter explores
how members experience their situation within UK and German labour markets and how
this contributes to their decision to join WINs.
Research Methods
WINs are formally organised member-based societies for working women. WINs are
different from women’s professional associations because they are not industry or
profession-related, and their members come from different sectors, have different
occupations or hierarchical positions, and can be employees or self-employed. The term
‘independent’ means that they are not internal to any corporation, or part of any trade
union or feminist organisation, and so do not demand political or ideological consensus
of their members. In this study, participants were voluntary members of four WINs:
• AURORA, launched in 2000, aims to increase the number, growth and success of
women-owned businesses in the UK through online business. In 2008, the network
reported having 28,000 members.
• BPW UK, founded in 1938, aims at helping business and professional women achieve
their full potential in all aspects of their life. It has 44 local clubs around the UK and
over 1,500 members.
• Its German counterpart, BPW DE, dates back to 1931. Its purpose is to promote
women’s development and equal treatment in employment and education, and has
38 local clubs across the country, with 1,700 members.
• BFBM was founded in 1992 with the aim of promoting equality and acceptance for
women in employment and society. The network consists of 16 local clubs around
Germany, with over 350 members.
Primary data were gathered via 55 semi-structured interviews, 10 observations of

monthly local meetings and annual national conventions, and a research diary. The target
population were members at all ranks and levels of organisational involvement. Their age
ranged from 30 to 84 years, 21 per cent were foreign-born and 79 per cent native-born; 31
per cent had a highest level qualification from O-Levels to below bachelor degree, 34 per
cent had bachelor degrees, 29 per cent masters degrees, and six per cent doctoral degrees.
In terms of marital status, 18 per cent were single, 13 per cent cohabiting, 55 per cent
married, 3 per cent apart-living, 10 per cent divorced, and 1 per cent widowed. About 55
per cent had no dependant family members at the time of the fieldwork, 18 per cent had
1 dependent, 22 per cent 2, and 5 per cent had 3. The participants came from a variety
of sectors and had diverse occupations, 36 per cent were salaried employees, 56 per cent
self-employed, 1 per cent unemployed, and 7 per cent retired.
Career Obstacles and Discrimination

In interviews women were invited to reflect on their working life, and consider whether
they faced any obstacles to their career advancement. Only one woman from the UK and six
C a r e e r O b s t a c l e s , D i s c r i m i n a t i o n a n d W o m e n ’s I n d e p e n d e n t N e t w o r k s 85
from Germany answered that they did not really experience any obstacles during their
working life. Three self-employed women (one from the UK and two from Germany)
named money as the only obstacle, explaining that a salaried employee has an income
irrespective of performance, which is not the case for an entrepreneur. The majority of
the remaining 45 women referred to more than one obstacle, which can be grouped
under four separate headings. These career obstacles are by and large consistent with
previous German (Falk and Fink 2002) and UK (Mallon and Cassell 1999) studies, and
appear here slightly reformulated, namely:
• being female in a male context;

• low self-esteem/lack of confidence;
• work–life balance; and
• discrimination.
Being Female in a Male Context
One third of members in the UK and half in Germany perceived the masculine
organisational culture as one of the biggest obstacles for women. In management
literature, organisational culture is defined as the specific collection of values and norms
which are shared by people in an organisation, and function for management as a type of
control that distinguishes appropriate from inappropriate behaviour (Hill and Jones 2001;
Johnson and Scholles 1999). Against this gender-neutral definition, many women in this
study described the organisational culture in their workplace as ‘very competitive and
aggressive’, ‘very sort of macho’, ‘boys’ club atmosphere’, where ‘it can be a disadvantage
if you are a capable woman’. UK members added class – alongside ethnicity and gender –
with the most frequent examples being ‘public school boys’, and ‘Oxbridge buddies’ and
a UK member said ‘you must be a white middle-class man to climb the hierarchy’.
Self-employed women were more likely to observe such a culture, and for many this
masculine culture was the chief reason they started their own business. Some salaried
employees had also thought about doing the same or retiring, saying they ‘cannot take
it much longer’. However, my analysis revealed that some women took this masculine
culture for granted and learned ‘how to play the corporate game’. Klaudia (BPW DE)
was an ambitious Financial Controller. In the first company announcement for a Chief
Financial Officer post, her departmental manager refused to include her application for
the position in their internal recruitment process, without telling her why. When a second
call was sent out, she decided to skip her departmental manager and gave her application
directly to the personnel manager and had a meeting with the Chief Executive Officer
(CEO) to persuade him of her loyalty to the company and commitment to the job; shortly
afterwards, she became Chief Financial Officer (CFO). ‘It doesn’t work otherwise’ she said
laughing loudly. She added that ‘working in a male-dominated sector is exhausting’ and
she had experienced harassment, but she considers herself to be tough and finds that at
BPW she feels she can talk about these incidents with women who have experienced the
same and are supportive.
Nonetheless, some women in my study who were – like Klaudia – eager to change
themselves in order to assimilate more effectively into the masculine culture, told me that
others’ expectations can be so contradictory that it is ‘impossible to achieve them without
a split personality’; the same person who appointed her because he was convinced she
‘would be able to handle the boys’, criticised her behaviour the next day and complained
that he thought ‘bringing a woman in would soften the male team’. ‘There’s no way
you can do it right as a woman’ said some BPW UK members humorously, during an
observation of a monthly meeting.
Just as in McCarthy (2004), UK and German WIN members still perceived the old
boys’ network to be a significant barrier to career advancement, because it left them less
opportunity, influence, and access to information that affected their ability to get things
done (Smith-Lovin and McPherson 1993). Women were not only excluded from in-
company but also from ‘out-of-hours’ networking activities, many of which were based
on shared masculine values and rituals of male bonding. Some WIN members told me
that when they finally succeeded in joining a pub evening, ‘the guys exchanged these
weird glances, didn’t know what to talk about, and said they had to go home after just
one beer!’. The unequal division of childcare and housework that exists in the UK and
Germany kept women at a serious disadvantage, leaving women less time to participate
in ‘out-of-hours’ networking activities at work.
I remember, I went for an interview to a local authority and I had an interview with the chief
architect and at the end he was, sort of pretty much saying that I’d got the job. He said he
thought I would really enjoy working with them because they were a pretty mixed bunch. And
I said ‘oh, that’s good. How many women do you have working here?’ and he says ‘well, none’
[we laugh] his idea of a pretty mixed bunch was that some of them played golf, some played
cricket, some played football, they have different sorts of cars [we laugh] […] When I used to go
to management meetings, there would be 15 men and me in the room…. And in a way, I had to
become one of the lads, but I didn’t share their social life…. They talked a lot about cars, they
talked a lot about sport … neither of which interested me at all. They went to the pub a lot and
I hate pubs, some even went to a smoking bar, which was not were I wanted to go. They had a
whole life outside of the office which I didn’t participate in. Also, I had children to go back to.
Although they had children, they didn’t have to go back to them.
(Hannah, AURORA)
Low Self-Esteem/Lack of Confidence
Half the participants from both the UK and Germany mentioned lack of self-esteem or
confidence as an obstacle to their careers. They wished they had received more support
and guidance from their parents, career advisers, and teachers. Carrey, a 43-year-old
disabled entrepreneur, said:
Lack of self-esteem … that ties in with role models, and also education. When I was at school,
my career advice consisted of ‘you should go into arts’. I didn’t have someone behind me saying
‘have you specifically looked at this or that?’ My parents don’t have any business background
so everything I’ve learned in the last four years, I’ve learned myself through networking. So
there was no one that said ‘you can do better than this’ or ‘why don’t you apply for this job?’ I
think people need that. I think women need that. Women need to know they can do more than
they do, than other people do.
(Carrey, AURORA)
Several very successful entrepreneurs and some high-ranking managers in both

countries tended to confuse perfectionism with low self-confidence. Stereotypical
assumptions may discourage individuals from describing their behaviour in ways that
deviate from traditional norms (Rhode 2003) and as women do not enjoy the presumption
of ambition, precision, endurance and other attributes ascribed to men, perceivers have
difficulty encoding them as such (Scott and Brown 2006). One could doubt that women
in high positions lack self-esteem but for many WIN members heightened visibility meant
more scrutiny and criticism (known as the ‘visibility-vulnerability spiral’ in Kram and
Hampton 2003). They reported having burned themselves out ‘trying to compete with
the guys’, ‘having to work ten times harder than a man’, ‘always having to prove yourself
in leadership’. Overall, for most women their alleged low self-esteem was connected with
specific regrets for example, an opportunity they did not grasp or a negative event they
did not react to.
I was often not confident enough to bring bad situations to an end … and if you wait too long
one day you find yourself left behind … I experienced verbal discrimination but I didn’t know if
it had to do with my gender or if others were also treated that way. So I kind of blocked myself.
Though, the fact that I didn’t have a caring and encouraging family to turn to also played a
part. I had to fight and try to find my way on my own.
(Sabine, BPW DE)
Many WIN members felt their parents and teachers did not encourage them to
establish a strong sense of self-confidence and independence the way they did with their
brothers or male classmates. BPW members in both the UK and Germany actively tried
to change this for the next generation of women through their involvement in BPW.
Some said conditions for women have worsened since the days when ‘we couldn’t have
careers or reach high positions because we weren’t allowed to earn the qualifications’.
They were perplexed by the fact that girls today perform better than boys at school, make
up more than half of new graduates, then ‘get pregnant and without a second thought,
they interrupt or even quit their careers because it’s best for the family’. The majority
felt that Young BPW (a group for members under age 35) had a role to play and should
target girls while they are in the last year at school and recruit them as soon as they
have entered higher education or vocational training programmes, so that girls join an
encouraging and supportive community. These members encouraged girls to network at
every possible chance.
One quarter of members in the UK and the same proportion in Germany wished
they had known earlier how important it is to have a mentor or a role model, which
was something they found through their participation in WINs. I will return to this
later, where mentoring will prove to be one of the key reasons for joining a women-only
network.
Work–life balance
Women’s increased employment participation in the UK and Germany has altered the
traditional family model of the woman as full-time homemaker and carer and the man as
the sole source of income, but it has not significantly altered the pattern of the gendered
division of domestic work. Most WIN members in both countries confirmed being the
ones who carry out the majority of the household chores, and had the career breaks
in order to take care of children. Hence, it is not surprising that for one third of the
women in the UK and for over half in Germany, reconciling work and family was one
of the biggest obstacles for their career advancement. Several interviewees were aware
that parental leave provisions are more generous in Germany than in the UK, but many
German women felt this left them no choice but to support the male breadwinner model.
As a result, the family life cycle had a stronger impact on employment patterns of German
than of UK WIN members. Whereas the two countries are different with respect to their
welfare regimes, they are similar in the lack of affordable childcare, and interviewees in
both countries depended on female relatives for temporary or long-term help during the
childrearing years.
Differences between welfare and socialist regimes emerged from the German data,
illustrating the socialist notions of the former East Germany that prescribed to women
the role of the worker–mother. Heike (BFBM), who was born and still lives in the former
East Germany said that ‘all women here have always been working – they had to’ and
described how the socialist ethos, which stressed work as a civic duty, still encouraged
married women’s employment. Heike was married and had three children. Nadine (BFBM),
who was born in West Germany and now lives in the former East Germany, reported
enjoying the extended childcare and positive public opinion of working mothers. Nadine
was married and had two children. Both interviewees were successful in their jobs and
felt they would have not been able to balance work and family the same way in the
western states; in fact, Nadine had children after she moved to the former East Germany
and although she worked continuously nobody called her ‘Rabenmutter’1 – something
she knew happens in the west. Indeed, several WIN members who lived in the western
states told me they had to deal with this characterisation when considering having a
career break or not, for example, ‘my mother said I don’t want to be a Rabenmutter and
I should take at least a short parental leave’. The way East/West cultural values and state
policies can structure choices is seen in the case of Jette, who was born in the former East
Germany and moved to Bavaria some years ago. She said:
I fell from a highly modern society back into the Middle Ages! There is no open nursery school
place here. You can try the nursery school which is currently being built, but they told me they
have a 12-month waiting list. Does it mean a woman has to enrol the baby before she even
gets pregnant? This is perverse! ... However, the nice side of it is that there is great support for
women who would like to take care of their babies themselves. Because every woman should
be able to live her life the way she chooses. If she wants five children and wants to stay at
home, then she should. But she should also be respected the same way an employed woman
is respected.
(Jette, BFBM)
1 The literal translation of the word Rabenmutter is Raven-mother, but metaphorically the term is used in Germany
to describe the uncaring mother, who abandons her children in an empty nest while she flies away to egoistically pursue
a career. It was Chancellor Angela Merkel, the first woman to lead the country, who publicly condemned this centuries-
old synonym for bad mother, and placed it at the centre of a new debate on the future of the German working woman
(Landler 2006). To her critics, Merkel has appointed Germany’s utmost incarnation of the Rabenmutter as minister
for family affairs; Dr Ursula von der Leyen, a physician and mother of seven. The peak of disapproval of her plans for
rewriting Germany’s family policies so that women do not have to choose between family and career, was the TV-show
‘Hard but Fair’, where the host Frank Plasberg showed von der Leyen a fictitious newspaper front page, with a smiling
photo of her and the headline ‘Mama, where were you when I was little?’ (Poelchau 2006).
The findings of Adler and Brayfield (1996) and Braun et al. (1994) indicate that the
main differences between East and West Germany are readily explainable by differences
in past structural conditions. In both studies East Germans were found much more likely
than West Germans to hold that ‘a working mother can establish just as warm and secure
a relationship with her children as a mother who does not work’ and reject the view that
‘a pre-school child is likely to suffer if his/her mother works’.
Discrimination
Discrimination can be described as the favouring of one social group over others for no
justifiable reason, and is based on negative stereotypes about the other groups (Daniels
and Macdonald 2005). When asked directly whether they had experienced any form of
discrimination at work, only a minority of the interviewees thought they had not. Most
described minor to blatant cases of gender, age, class, ethnic or racial discrimination, often
interconnected. In all, these findings show a substantial awareness of discrimination.
The most common reference was to gender discrimination, and in particular how
male employers and colleagues were convinced they could predict a woman’s career
pattern, often before they even worked with her. That means, some women told me, they
did not get a job because the male boss wrongly prophesised that ‘such a good-looking
girl will soon find somebody to marry and off she is!’, or ‘well, you know you are in your
mid/late twenties, you are going to be stopping to have a family soon’. Other women
did not get a promotion because their gender was assumed incompatible with travel: ‘it’s
going to be scary for a woman travelling alone’. Consistent with the previous section, it is
evident that patriarchal structures turn women’s biological and social functions as wives
and mothers into obstacles and influence women’s entry into and exit from the UK and
German labour markets.
A salient national difference materialised in the women’s reactions to the word
‘discrimination’. For about half the respondents in Germany, discrimination was perceived
as synonymous with ‘sexual harassment’, and some answered that they have never been
discriminated against because they had not experienced any unwanted touching. Some
explained that ‘the word discrimination is really too harsh’ and I should rephrase the
interview question using the word ‘bullied’ – in German, ‘mobbed’. Several commented
they are ‘not the type of person that allows [herself] to be discriminated against’. When
asked how they manage this, they answered that they ‘keep calm and smile’, or they
‘just ignore it until the bully gets tired and stops’. During a BFBM observation, a member
sarcastically called this ‘the ostrich approach’ and remarked that it never works: ‘its
success is pure illusion; you just learn not to see it when others screw you!’ In general,
10 per cent of the interviewees in both countries were sexually harassed but only Megan
(BPW UK) officially reported the incident; she found the experience very distressing,
however was persuaded by a female colleague and friend to do so. The senior manager
was reprimanded.
Having the chance to freely voice grievances about discrimination proved to be one
of the key benefits of women’s involvement in WINs – as opposed to women’s corporate
networks, or independent, but mixed professional networks. This was particularly
important for two respondents from the UK and two from Germany who felt ‘nobody
is really listening’ inside corporations, they were discouraged from discussing these
incidents by being told they ‘got it all wrong’, or ‘it wasn’t on purpose’. They narrated
how the shock of the experience of discrimination turned into the realisation that they
are all alone in this, they became disappointed and ‘finally, learned that it is better to
pretend it does not happen’; this way they ‘don’t waste energy for nothing’ and their
colleagues don’t call them ‘killjoy’ or ‘spoilsport’ (in German: ‘Spielverderber’) if they
complain (as in Cockburn 2001). For very few respondents who were single mothers,
taking discrimination seriously was not something ‘you can afford when raising children
on your own’. Aronson (2003) also suggests that dealing with discrimination is a luxury,
perhaps even frivolous, when compared with the struggles of combining work and single
motherhood. Three quarters of the foreign-born interviewees were self-employed, and
stated that experiences of race/ethnicity as well as gender discrimination were one of the
reasons that eventually pushed them to start their own business. For some, however the
situation has not improved as they had hoped.
Because it is still the same … you still have some bankers not taking you seriously because they
see a woman, and they see a black woman and don’t take you seriously in wanting to have a
business. And also there have been one or two suppliers that have not responded properly –I
don’t know if that is the way they normally do or it was because I am a woman. Comparing
it to experiences before, I think now it’s more hurtful because now it’s my business and I have
to take it, to where I want it to go. So I have to get over the hurdles, I have to jump over the
hurdles by myself. When I was working for somebody else, if anybody behaved funny to me I
just ignored it and I didn’t care. Now it’s my business so it’s more hurtful.
(Nabinye, AURORA)
The Need for Separate Organising

Seven women from the UK and five from Germany did not initially join the WIN for its
gender exclusivity, but some said that over time they became convinced by its single sex
nature and would not want to change it.
I would have contacted them even if they were mixed. But, it developed very interestingly
because we have a lot of women in our club that have – nearly all of them – the same problems
I have, the same obstacles, the same thoughts … and it’s good to know that you are not alone,
you know? Every one of us has or is trying to cope with family and career and everything
here…. Businesswise, we learn a lot from each other. But also emotionally, it is very nice to
know ‘OK, they also have the same thoughts that I do!’ Now, I find it very nice that it is only
women. We help each other in a different way.
(Evita, BPW DE)
However, for the majority, being with ‘women like myself, who are going through the
same sort of thing’ was the reason for consciously choosing a women-only network. For
Charlotte (AURORA) ‘women like myself’ were female solo entrepreneurs, for Heidi (BPW
UK) they were working mothers, whereas Gaby (BFBM) was ‘the only female director
in a male board’, and Sabine (BPW DE) was ‘a female technician in a male-dominated
corporation’. While their sameness was seen to derive from their current marginality (Liff
and Wajcman 1996) in work, the variation in the meanings they gave to ‘women like
myself’ may challenge the belief in a women’s shared identity. The decision to choose an
independent women-only, over a corporate or a mixed-sex, network was a qualitative one

based on the anticipation of positive features of WINs, as well as the avoidance of negative
features of mixed networks. No matter what personal and professional expectations these
women had, they wanted them addressed among women and inside their own structures
because they believed:
• only women can empower, support the right way;

• corporations and mixed business networks have an aggressive culture; and
• it is easier to identify with female role models and mentors.
These three arguments were usually interrelated. For BPW UK and BPW DE woman-
to-woman support was seen as ‘a give-and-take’, as well as something that took place
on two levels: a micro/personal and a macro/societal. Whereas for AURORA and BFBM
members, support was usually on a micro/personal level.
Women are able to empower each other … emotionally, mentally, professionally. This is exactly
the advantage of a women-only group, they build you up. When a woman has a problem other
women give her knowledge and strength to overcome it. Men have different structures. When
a man has a problem other men know somebody who can fix it for him. Men play different
games, they need that, but we do not. We like this communicative togetherness and the mutual
promotion and empowerment. A mixed network cannot offer that; it might offer professional
advice but it will not empower me. Only a women’s network can succeed in that.
(Hannelore, BFBM)
BPW members too needed personal support because ‘men aren’t necessarily supportive
of women going up the ladder’, but many wanted ‘something more about women’s issues’,
‘to lobby for women’, and were proud of the WIN’s national and international impact.
I think that women can give each other lots of support and guidance, tell each other all the
secrets that help you up the career ladder…. But I also feel that one person cannot influence,
but a large group representing many of the views of working women in the country has a chance
of making a noise loud enough for politicians to take note. BPW has been highly influential
in shaping the 1957 Divorce Laws, which gave women rights after divorce, for the first time in
English history!... That’s why I join women’s organisations. Because I don’t believe that men
will assist or enable that success to happen on their own – it is too much of a threat to their
established way of life…. Women’s groups can be the catalyst to make this change.
(Grace, BPW UK)
In line with this, numerous participants believed that women-only groups should
be as autonomous as possible so that they can raise and respond to issues that concern
them without introducing ‘tension between the men and women of the company’ or
having to fight against a radical image. In both countries, WIN members agreed that men
feel threatened by women-only networks, make ironic comments, and tend to use this
knowledge as an excuse to pigeonhole them into a radical category, thinking that they
know how the members are going to act or react because they promote women’s issues.
WIN members appreciated the gender separatism because they generally had enough
of the masculine culture at work, and of some mixed groups they had already tried.
Linda made clear that it is not all men she wants to avoid but the aggressive culture of
male-dominated networks:
It is very competitive, and I think it is very competitive because it’s male dominated. Whenever
I think about them, I do see documentary footage of sharks tearing apart poor defendless [sic]
fish! And I do feel quite sorry for men actually, because they have male-dominated networking
events, have an entirely different feel to them, they are more aggressive, they are more competitive
but not all men are like that. So the poor buggers get locked in with this huge, great, stereotype
that I have. There are so many men who are not like that … and you find one sitting in the
corner during a talk and you say ‘oh God, this is awful’ and they’ll go ‘Oh, yeah! what a relief’
[...] poor buggers [we laugh] Being a woman has its advantages in so many ways!
(Linda, AURORA)
One third of the interviewees in the UK and a slightly higher proportion in Germany
complained about the lack of role models and female mentors and about the low degree
of visibility the few that exist enjoy. They criticised the media for not disseminating their
pictures, views, and biographies the way they do with male politicians, entrepreneurs,
leaders. Analysing the interviews for links between participants’ life-stage and view of
role models, I found many women in both countries wishing they had had exposure
to successful women at a young age so they would have ‘become aware of all career
possibilities’ and realised that ‘not all characteristics are intrinsic’. At a later life-stage,
members tended to find female role-models and mentors simply more convincing than
male ones because women in business and professions were perceived to ‘face certain
challenges due to being women’, and so share common experiences and values. When
asked whether they had tried to find a woman mentor within their work organisation,
many employees explained that ‘it is not the wisest thing to do’ because female mentoring
relationships are highly visible and so under constant scrutiny; when the relationship is
harmonious it is seen as ‘a conspiracy against men’, when there is an argument between
the two women, ‘men rub their hands together in self-satisfaction’. Yet for some of the
interviewees, cross-gender mentoring relationships were out of the question as they could
‘get interpreted as sexual’. On the basis of this and prior research (Gallese 1993), while the
female mentor/female protégé relationship avoids perceived sexual tension, it entails the
greatest ‘risk’ of all mentor-protégé combinations because men tend to view evidence of
women forming intimate alliances as a threat.
Additionally, not all women in the senior ranks are willing to become a mentor to
a female protégé. Two German members portrayed the only female executive in their
corporation as the hardcore career person, single and childless, who is said to envy them
for being ambitious and married with children – sociologists have labelled these women
Queen Bees (Rhode 2003; Wilson 1995). Joining an autonomous women-only network
avoids these problems because this setting has a high concentration of successful women,
and pairs can be matched in relation to professional background or personality and not
just based on biological sex. Besides, female mentoring relationships are not seen as
strange, and take place within a nurturing, supportive environment.
Conclusion
This chapter has presented the biggest obstacles faced by women in the UK and German
labour markets, and offered evidence that the formation of WIN – and individual women’s
decisions to join them – are fundamentally linked to this context.
The British and German corporate world remains heavily male-dominated, and
changes in legislation, positive action and other measures have not managed to disrupt
the structure of gender segregation or undermine masculine organisational cultures.
Consequently, many women in this study perceived the masculine organisational
culture, and the reconciliation of work and family as the greatest barriers for their career
advancement. Several wished they had known earlier the importance of having a mentor
or a role model, which is something they discovered through their participation in
WINs. Additional benefits of involvement in autonomous women-only, as opposed to
corporate, or mixed professional, networks was the apparent safety to voice women’s
issues and share frustrating or sexist workplace incidences to receive understanding and
the reassurance that they are ‘not alone’ nor ‘going mad’.
WINs are distinct from other types of networks due to their twofold separatism
in terms of both gender and self-governance. Undeniably, if the social and economic
structures worked effectively and women were able to construct their lives and careers in
their own terms, then an independent, women-only business network would have little to
offer. Nonetheless there is evidence that aggressive cultures, exclusion from the old boys’
network, and the unequal division of childcare and housework, remain a major career
handicap for many women. WIN members’ separatism is informed by a recognition of
the gender-specific character of experience, that is, the interrelation of their occupational
and family work, and the power relations in both spheres. Briskin (1999) postulates that
separate organising produces women as a constituency and, at the same time, emerges
from the fact that women are already a constituency. This applies to the vast majority
of WIN members, who felt bound by structural relations into the category of ‘being a
woman’ and consequently different from men. Having produced an understanding of
the/their world as it is, as well as how it should be, they saw potential advantages of a
separation from men and their structures. Thus, the majority of members identified their
gender status and the independence from working environments as significant, and as a
result consciously chose WINs over other business and professional networks.
To sum up, women in this study had a growing sense of their own worth; they might
have experienced unfairness but did not accept it as natural or inevitable. The stories of
the women were not – in Harding’s (1987) terms – victimologies. They were full of energy
and hope, and became increasingly aware and confident in their ability to negotiate new
structures, making them more vocal and visible within them. Listening to how women
earned their degree during their parental leave, or saw the masculine corporate culture as
a chance to start their own business, and become mentors in a women-only network, it
becomes obvious that by joining WINs women can be effective social agents in support
of themselves and of others.
Acknowledgements
I would like to express my gratitude to the University of London Central Research Fund
for the financial support to carry out the fieldwork. I am also enormously thankful to all
the volunteers who showed such a lively interest in my research devoting their time to
participate in the interviews and sending me abundant material on the WINs.
References
Adler, M.A. and Brayfield, A. (1996) East-West Differences in Attitudes about Employment and
Family in Germany. The Sociological Quarterly, 37(2): 245–260.
Aronson, P. (2003) Feminists or “Postfeminists”?: Young Women’s Attitudes Toward Feminism and
Gender Relations, Gender and Society, 17(6): 903–922.
AURORA (2008) Aurora. Credibly Connecting Companies with Communities., from source http://www.
auroravoice.com/ [accessed 1 July 2008].
Braun, M., Scott, J. and Alwin, D.F. (1994) Economic Necessity or Self-Actualization? Attitudes
Toward Women’s Labour-Force Participation in East and West Germany, European Sociological
Review, 10(1): 29–47.
Briskin, L. (1999) Autonomy, Diversity, and Integration: Union Women’s Separate Organizing in
North America and Western Europe in the Context of Restructuring and Globalization, Women’s
Studies International Forum, 22(5): 543–554.
Cockburn, C. (2001) Equal Opportunities: the Short and Long Agenda, Industrial Relations Journal,
20(3): 213–225.
Daniels, K. and Macdonald, L. (2005) Equality, Diversity and Discrimination: A Student Text, London:
Chartered Institute of Personnel and Development.
Falk, S. and Fink, S. (eds) (2002) Frauen und Macht: Anspruch oder Widerspruch?, [Women and Power:
Requirement or Contradiction?] Frankfurt: Accenture.
Frerichs, P. and Wiemert, H. (2002) ‘Ich gebe, damit du gibst’. Frauennetzwerke – Strategisch, Reziprok,
Exklusiv, [‘I give, so that you give’. Women’s Networks – Strategic Reciprocal, Exclusive], Opladen: Leske
+ Budrich Verlag.
Gallese, L.R. (1993) Do Women Make Poor Mentors?, Across the Board, 30(6): 23.
Harding, S. (1987) Is There a Feminist Method?, in Harding, S. (ed.) Feminism & Methodology,
Bloomington: Indiana University Press and Open University Press.
Hill, C.W.L. and Jones, G.R. (2001) Strategic Management Theory: An Integrated Approach, Boston:
Houghton Mifflin.
IMF (2008) World Economic Outlook (Database), Washington, DC: International Monetary Fund.
Johnson, G. and Scholles, K. (1999) Exploring Corporate Strategy, London: Financial Times Prentice
Hall.
Kram, K.E. and Hampton, M.M. (2003) When Women Lead: The Visibility – Vulnerability Spiral,
in Ely, R J., Foldy, E.G. and Scully, M.A., Reader in Gender, Work, and Organization The Center
for Gender in Organizations & Simmons School of Management (eds), Oxford: Blackwell
Publishing.
Landler, M. (2006) Quoth the Raven: I Bake Cookies, Too, The New York Times, 23 April.
Lenz, I. (2008) Die Neue Frauenbewegung in Deutschland: Abschied vom Kleinen Unterschied. Eine
Quellensammlung, [The New Women’s Movement in Germany: Farewell to the Small Difference. A
Collection], Wiesbaden: VS Verlag für Sozialwissenschaften.
Liff, S. and Wajcman, J. (1996) ‘Sameness’ and ‘Difference’ Revisited: Which Way Forward for Equal
Opportunity Initiatives?, Journal of Management Studies, 33(1): 79–94.
Mallon, M. and Cassell, C. (1999) What do Women Want? The Perceived Development Needs of
Women Managers, Journal of Management Development, 18(2): 137–152.
McCarthy, H. (2004) Girlfriends in High Places: How Women’s Networks are Changing the Workplace,
London: Demos.
OECD.Stat (2009) Statistics Portal, http://webnet.oecd.org/wbos/index.aspx. [accessed 8 January 2009].
Poelchau, N. (2006) Die Rabenmutter [The Raven-mother], Süddeutschen Zeitung, 26 January, Munich.
Rhode, D. (2003) The Difference ‘Difference’ Makes, in Ely, R.J., Foldy, E.G. and Scully, M.A. (eds),
Reader in Gender, Work, and Organization, The Center for Gender in Organizations & Simmons
School of Management, Oxford: Blackwell Publishing.
Scott, K.A. and Brown, D.J. (2006) Female First, Leader Second? Gender Bias in the Encoding of
Leadership Behavior, Organizational Behavior and Human Decision Processes, 101(July): 230–242.
Smith-Lovin, L. and McPherson, M.J. (1993) You Are Who You Know: A Network Approach to Gender,
in England, P. (ed.) Theory on Gender / Feminism on Theory, New York: Walter de Gruyter, Inc.
Travers, C. and Pemberton, C. (2000) Think Career Global, but Act Local: Understanding Networking
as a Culturally Differentiated Career Skill. in Davidson, M.J. and Burke, R.J. (eds) Women in
Management: Current Research Issues, vol. 2, London: Sage Publications.
Wilson, F.M. (1995) Organizational Behaviour and Gender, New York: McGraw-Hill Publishing Co.
Witz, A. and Wilson, F. (1982) Women Workers in Service Industries, Service Industries Journal, 2(2):
40–55.
8 Creating Inclusive
chapter
Organisations:
What do Lesbian,
Gay and Bisexual
Employees in the Private
Sector Think Makes a
Difference?
FIONA COLGAN AND AIDAN McKEARNEY
Introduction
Sexual orientation is an issue of growing importance for organisations. It has become
an important source of employee, client and customer diversity, as people increasingly
feel able to self-identify as lesbian, gay or bisexual (LGB) in society and in the workplace.
The legislative and policy framework concerning equality and discrimination on grounds
of sexual orientation has been undergoing a transformation across Europe since the
introduction of the European Employment Equality Directive (2000) (Waaldijk and
Bonini-Baraldi 2006). As a result, organisations have begun to include sexual orientation in
their equality and diversity policies. It is argued that this is long overdue on social justice
grounds given that research has long shown that LGB people experience discrimination and
harassment at work (Day and Schoenrade 2000; Colgan et al. 2007). In addition, employers
increasingly see a business case for developing good practice around sexual orientation at
work (Trau and Hartel 2004; Stonewall 2008a). However, despite a liberalisation in social
attitudes and more comprehensive anti-discrimination legislative framework, LGB people
may still experience barriers within organisations (Colgan et al. 2006).
This chapter examines organisational good practice in Britain following the
introduction of the Employment Equality (Sexual Orientation) Regulations which became
law in December 2003. This legislation made it unlawful for the first time to discriminate in
employment on grounds of sexual orientation.1 The 2004 Workplace Employee Relations

Survey (WERS) suggests that progress has been made on the development of written
equality/diversity policies on sexual orientation within British workplaces. According to
WERS, the major changes in coverage since 1998 have concerned the new statutory anti-
discrimination grounds: sexual orientation (71 per cent increased from 56 per cent in 1998),
religion (82 per cent increased from 72 per cent in 1998) and age (69 per cent increased
from 61 per cent in 1998) (Kersley et al. 2006). However, although this indicates progress
on paper, little research has been done in the lead up to the Equality Act 2010 to identify
whether this changing policy is leading to changing practice within organisations.
Existing research on organisational good practice and sexual orientation in Britain
has in the main focused on the public sector which has been seen as a ‘pioneer’ in
sexual orientation equalities (Palmer 1993; Carabine and Monro 2004; Colgan et al.
2009). However, in recent years a range of ‘good practice’ private and voluntary sector
organisations have joined public sector organisations in recognising that a commitment
to equality and diversity includes engaging with the needs of LGB employees, service users
and customers (Stonewall 2008b). This chapter will therefore consider organisational good
practice in addressing discrimination on grounds of sexual orientation within the private
sector. Although some research has been done on management knowledge and handling
of sexual orientation in the workplace (Dickens, S. et al. 2009) there is little written on
the perceptions and experiences of good practice from the LGB perspective. The chapter
describes the research methodology, before moving on to outline the development
of sexual orientation equality/diversity policy and practice within five ‘good practice’
private sector organisations. It then goes on to focus on LGB employee perceptions of
the organisational initiatives which have been positive in tackling discrimination and
moving from policy to practice within these five workplaces.
The Research
The chapter draws on a two-year study (2004–2006) across 16 public, private and voluntary
case studies funded by the Higher Education European Social Fund (Colgan et al. 2006).
The five private sector organisations participating in the research were all global companies
although the research project focused only on the UK operation as the case study for each
company. The case studies included three European-owned companies; a bank (Bankco),
a communications company (Comco) and a finance company (Financeco) and two US-
owned companies; a car manufacturer (Carco) and a management consultancy company
(Itco). The chapter is based on in-depth interviews with 65 LGB employees within these
five private sector organisations and 20 in-depth interviews with management, trade
union and LGB group representatives as well as access to company and trade union
websites and publications.
1 The research was done prior to the introduction of the Equality Act, 2010 in the UK which repealed almost all
the prior existing discrimination statutes and harmonised the provisions to give a single equality approach. Each of the
equality strands including ‘sexual orientation’ and ‘gender reassignment’ are now referred to as a ‘protected characteristic’
within the Equality Act (Rubenstein, 2009). As the chapter considers the period following the introduction of the
Employment Equality (SO) Regulations it focuses on sexual orientation and not on transgender issues. However, some
of the organisations participating in this research had chosen to adopt policies and establish groups that are inclusive of
lesbian, gay, bisexual and trans people (LGBT).
Creating Inclusive Organisations 99
In order to overcome difficulties in negotiating research access, we focused on

organisations perceived as ‘good practice employers’ by employers’ organisations, trade
unions and LGB groups. All of the private sector organisations that participated in the
research were members of the Stonewall Diversity Champion’s programme (Stonewall
2006).2 Three were unionised; Bankco, Carco and Comco. Research on LGB issues is a
sensitive area of research in the UK and the ‘hidden’ nature of the LGB population within
organisations raises a number of methodological issues (McManus 2003; Stonewall 2007,
Stonewall 2008c). We used multiple access routes to contact LGB employees including
newsletters, email or intranet sites, invitations via workplace and trade union LGBT and
equality groups and LGBT campaigning groups. Nevertheless we found administrative,
manual, service and skilled trades workers, women and black and minority ethnic (BME)
workers were more reticent in participating in the research. Key informants within the
private sector organisations suggested that these groups of LGB employees were less
likely to be ‘out’ at work and thus much less likely to participate in research on sexual
orientation. This is in itself a research finding and illustrates the ‘hidden’ nature of much
of the LGB population even within ‘good practice’ public service organisations.
The attribution of the labels ‘lesbian, gay and bisexual’ to those involved in this study
was based on self-identification by respondents. Within the broader study, to supplement
the qualitative data collected, we asked LGB employee respondents to complete a short
survey questionnaire prior to the interview in order to collect some headline demographic
and attitudinal data. Of the 65 LGB respondents interviewed within the private sector case
studies, 48 (74 per cent) were men and 17 (26 per cent) were women. Over three quarters
of the LGB interviewees described themselves as having managerial or professional
occupations, with 35 per cent of male and 24 per cent female respondents in managerial
occupations and 48 per cent of male and 59 per cent of female respondents working in
professional occupations. Respondents ranged in age from 21 to over 60. One in ten (10
per cent) defined themselves as having a disability and 11 per cent self-defined as BME.
Nearly three quarters (71 per cent) defined themselves as gay men, 23 per cent as lesbian
and 6 per cent (2 men and 2 women) as bisexual.
Equality/Diversity Policy in the Private Sector: Introducing

Sexual Orientation
Interviews with management, trade union and LGBT network group representatives
within each of the 16 case studies provided an overview of the history of LGB equality
and diversity initiatives and key factors influencing progress on LGB issues within these
organisations. Most public and voluntary sector organisations, notably local authorities,
had begun to include sexual orientation alongside other equality strands on social justice
grounds and as a consequence of pressure from LGBT employees, service users and trade
unions as early as the mid-1980s (Cooper 2006; Colgan et al. 2009). Three of the private
sector case study organisations, Carco, Comco and Itco had sought to include sexual
orientation alongside other equality strands prior to 2000. Comco was the ‘pioneer’ in that
2 Stonewall established the Diversity Champions Programme to bring together organisations ‘committed to tackling
sexual orientation discrimination, and to sharing good practice’ (Stonewall 2006). In June 2008, there were 340 companies
signed up to this initiative (Stonewall 2008b). It has also introduced an annual benchmarking tool, the Workplace
Equality Index (Stonewall 2009).
100 G o w e r H a n d b o o k o f D i s c r i m i n a t i o n a t W o r k
as a public sector organisation (privatised in 1984) it had introduced same-sex benefits for
LGB employees following negotiations with its trade unions in 1981. It was suggested by
managers in these three companies that sexual orientation had been included initially on
social justice grounds and in order to be consistent with other equality strands. Financeco
had begun to include sexual orientation in 2000 and Bankco had done so from 2003
onwards (Colgan and McKearney 2009).
After 2000, equality policy and practice began to be developed primarily in conjunction
with a business-case driven corporate diversity strategy (Colgan and McKearney 2009).
This reflected the shift during the late 1980s, from a focus on social justice grounds to a
focus on how valuing workforce diversity could contribute to the organisation (Kirton and
Greene 2006). Interviewees within these organisations described the shift from a ‘social
justice’ equal opportunities approach to a ‘business case’ diversity management approach
including a change in titles and structures with an increasing focus on working with line
managers within company businesses to implement diversity (Kirton and Green 2009).
In each organisation, LGBT employees had pushed for the inclusion of sexual orientation
within company equality and diversity initiatives. Within Bankco, Carco and Comco,
the unions had also pressured for this extension. Ward and Winstanley (2004) suggest
that where US subsidiaries have moved to include sexual orientation within diversity
policy in the UK, many UK and European-owned competitors have been keen to follow
suit. This seemed to apply to Financeco (2000) and Bankco (post-2003) who ‘added on’
sexual orientation when they adopted a diversity approach. This appeared to be in part to
respond to demands from LGBT employees and also to ‘keep up’ with what was perceived
to be ‘good practice’ amongst their competitors within the finance and banking sector.
Although UK legislative changes were acknowledged to have had some impact on the
private sector case study organisations, the management respondents identified corporate
business objectives as the major drivers shaping diversity policy and practice. Workforce
diversity and inclusion were key to the development of sexual orientation equality work
within their organisations, and managers in four of the private sector organisations (Carco,
Comco, Financeco and Itco) took the view that the introduction of the Regulations in
2003 and the Civil Partnership Act (2004), had made little difference as they were already
‘ahead of the game’ in terms of policy and practice on sexual orientation.
The exception was Bankco, where managers admitted that prior to the introduction of
the Regulations the organisation had been cautious in its approach to sexual orientation
within its diversity policy and practice. However, by 2005, they said the company had
felt able to act more proactively both in response to the legislation, pressure from LGBT
employees and the trade union and were now keen to ‘catch up’ with the ‘LGBT-friendly’
initiatives its competitors had developed.
This is an area where we have looked for compliance and our policies and frameworks have
supported that, but I’d have to say we have probably not gone into exceeding in best practice [...]
as is more common for us in relation to other pieces of employment legislation … there is a kind
of standard process we go through with any piece of employment legislation, we are doing it at
the moment for the age discrimination legislation and we are doing it for civil partnerships …
we do that gap analysis for all our processes and practices whether it’s reward, whether it’s pay,
even down to like forms, things like that …
(HR manager, Bankco)
C r e a t i n g I n c l u s i v e O r g a n i s a t i o n s 101
The private sector development of a business-driven diversity policy and the business
benefits in recognising and valuing the LGBT community was most clearly articulated by
Comco as exemplified in this policy.
Promoting the empowerment of gays, lesbians, bisexual and transgender people in the workplace
has been a key initiative within the company for many years. Our efforts to be completely
inclusive have not only helped create a dynamic workforce but also opened up new markets
to us. We have created a more open and hospitable environment to accommodate all sexual
orientations, gender identity or expression.
(Comco policy, 2006)
At the time of the research, all five of the private sector case study organisations were
members of Stonewall’s Diversity Champion’s programme and had developed policy in
line with Stonewall’s guidelines for employers (2005), which include the following good
practice points (Stonewall 2005):
• Written equality/diversity policy which includes sexual orientation;

• diversity team that includes LGB issues;
• lead person on sexual orientation at Board/Chief executive level;
• LGBT network group;
• audited policies and procedures to ensure not discriminatory on grounds of sexual
orientation;
• diversity awareness training which includes sexual orientation;
• sponsored an LGB organisation or event; and
• recruited staff/advertised in UK LGB media.
However, as equality research points to the ‘implementation gap’ which too often
exists between equality/diversity policy and practice (Dickens, L. 1999; Hoque and Noon
2004; Dickens, L. 2005; Walsh 2007), this chapter will now consider LGB respondent
perspectives on sexual orientation policy and practice within these five organisations.
Moving from Policy to Practice: An Implementation Gap?

LGB respondents in all 16 case study organisations were asked if they thought that their
employers were LGB-friendly in terms of policy and practice. A majority (81 per cent)
strongly agreed/agreed that their employer was LGB-friendly in policy and two thirds
(63 per cent) strongly agreed/agreed that their employer was LGB-friendly in practice.
In general, therefore the case study employers were seen as LGB-friendly in policy and
practice by the majority of LGB respondents. However there was some evidence of a
perceived ‘implementation gap’ by respondents, which was slightly greater in the private
sector. Although 83 per cent of private sector respondents thought their employer was
LGB-friendly in policy, only 60 per cent thought that this was the case in practice. The
gap was slightly smaller in the public sector, where 78 per cent of LGB respondents agreed
their employer was LGB-friendly in its employment policies and 63 per cent agreed that
this was the case in practice (Colgan et al. 2007).
Although LGB respondents broadly agreed their employers were ‘ahead of the game’
relative to other employers when it came to sexual orientation equality policy and
practice, most valued and felt empowered by the introduction of the Regulations. Nearly
two thirds (63 per cent) of LGB private sector respondents said the Regulations had made
it more likely that they would take up a grievance about LGB discrimination if necessary
within their organisation.
Moving Forward: What do LGB Workers Think Makes a Difference?

Respondents discussed a range of corporate policy initiatives which they believed had
been or could be effective in addressing the perceived ‘implementation gap’ within
organisations. Each is discussed in more detail below:
• Set up and resource an LGBT network group;

• appoint diversity champions;
• workplace campaigns highlighting organisation benefits of diversity and inclusion;
• anti-discrimination/awareness training (including sexual orientation);
• enforcement of policy;
• integration of diversity into job roles, performance management and appraisal
systems;
• promotion of LGBT-friendly policy and benefits;
• greater use of intranet/web pages to reach those LGB people not ‘out’;
• more ‘out’ LGBT role models;
• LGBT mentoring system;
• LGBT recruitment and induction initiatives;
• sexual orientation monitoring;
• benchmarking (UK and international);
• sponsorship of external LGBT events; and
• marketing to LGBT businesses and individuals.
Establishment of LGBT Groups and Networks
This was seen by LGB employees across private, public and voluntary sectors as a key
initiative and an important signal of support from the organisation for LGB employees and
LGB issues. In Bankco, Carco and Comco trade union LGBT group members worked with
the company established LGBT groups. These groups had a range of roles to play both in
relation to the needs of individual LGB workers and as agents for organisational change.
All 16 of the case study organisations had LGBT groups but the private sector groups had
access to more sophisticated intranet and electronic facilities. They operated not just at a
national but an international level in terms of memberships across national boundaries
and within corporate diversity structures. LGB respondents in the private sector thought
it was important that groups and LGB people taking on leadership positions within them
were adequately resources and supported within corporate structures.
I think probably the pivotal thing they did was the creation of the network group. Not necessarily
because it gives you a social group that you can go and mix with. But it does mean that you
have a feeling that there is a point within [the company] that you can go to if you need to
and you know that that group is supported by [the company]. And I think around that they
have actually done quite a lot of things such as they do organise social events but when the
partnership legislation went through they arranged a presentation [...] and they had someone
there from HR who was explaining what (the company) would be doing to change its HR
policies to fit in with this.
(Gay man, Comco)
Diversity Champions
Diversity Champions with specific responsibility for sexual orientation had been appointed
in the five private sector case study organisations. This was primarily an initiative in the
private sector although it had begun to spread to the public and voluntary sectors. Those
appointed held executive positions within the global corporate businesses and were not
necessarily lesbian, gay or bisexual themselves, in some cases this was seen as an advantage
because they were perceived as dispassionate which lent credibility to their role. Private
sector organisations had begun to formally recognise the importance of ‘straight allies’ in
key positions who worked with Diversity managers and LGBT network groups to ensure
policy and practice moved forward (Gay man, Comco). LGB respondents thought it was
important for diversity champions to be sufficiently senior in organisations to enable
them to speak and act with authority and act as role models for other managers.
Workplace Campaigns Highlighting Organisational Benefits of

Diversity and Inclusion
There was some support for a business case for the inclusion of sexual orientation in
corporate policy from some LGB private sector respondents. However there was some
cynicism expressed about this by others. It was agreed that mainstreaming diversity
could only work if it were continuously embedded in corporate mission and values
and reinforced by internal and external educational/advertising campaigns. However,
respondents emphasised the need to name ‘sexual orientation’ alongside other diversity
strands to ensure it was given the same priority although it was recognised that within a
global context this raised certain challenges:
They need to include sexual orientation and they kept bringing out policies without including it.
And I kept saying ‘no, this is not the same’, and they would say ‘no, it is the same’. But you’ve
got to stipulate sexual orientation, it’s very important to gay and lesbian people working for
[Carco]. If you don’t stipulate sexual orientation it doesn’t include us.
(Gay man, networking group, Carco)
Anti-Discrimination and Awareness Training
There were contrasting views as to the value of mandatory training on diversity. On

the one hand it was suggested that unless training was mandatory many people,
particularly those who most needed it would opt out. On the other hand it was argued
that mandatory training could lead to a ‘tick-box’ approach to policy implementation
with little impact on culture and attitudes in practice. However there was also a strongly
held view from private sector LGB respondents that diversity awareness training which
specifically included sexual orientation was crucial particularly if the range of ‘managerial
barriers’ identified were to be tackled and progress on implementation was to be made
(Colgan et al. 2006).
I think maybe the other thing that [the company] could do … is to actually put managers
through some kind of training where people who are out are willing to talk about their
experience of being out. Because I think most people do not understand what it means to
go through the whole thing of questioning your sexuality and coming to terms with that
and having to tell people and having to out yourself every time somebody asks you about
your husband or your opposite sex partner … I think that there needs to be some awareness
training to say, you know, think about how you react to people. Think about the difficulties
that people can be going through.
(Lesbian, Financeco)
Enforcement Barriers
Major concerns were expressed about the enforcement of policy within private sector
organisations. First, respondents voiced strong concerns about the way in which
organisations primarily relied on LGB people coming forward and ‘whistle blowing’ by
taking out a grievance before taking action on homophobic behaviour and the burden
and risk of exposure that this placed on individuals experiencing harassment and
discrimination. Second, there was a view amongst some respondents that organisations
needed to take a firmer line with those who were unwilling to embrace the cultural change
needed to move from policy to practice in the diversity area. In particular, concerns were
expressed about those who were in middle and line management positions who seemed
unwilling or unable to implement diversity policy.
You know, it’s a difficult nut to crack, you know, it really is but if an organisation wants to
change and change its DNA, if people are unable, unwilling or uncomfortable to change fine
… If you want the organisation to change manage those people out of the organisation. Don’t
start kowtowing to them … Change them. You don’t necessarily have to take them completely
out of the corporation but take them out of leadership roles if that’s what you want to do. And
I don’t see it happening.
(Gay man, Itco)
Integration of Equality and Diversity into Job Roles and Performance

Management and Appraisal Systems
Examples of this were the use of diversity related objectives and competencies to assess
individual performance and the inclusion of equality and diversity criteria in person
specifications. Private sector respondents were more likely than public or voluntary
sector respondents to suggest this as a key step to motivate managers and employees and
thus a key step for implementation. One example was Carco’s approach to performance
management for managers:
Our process is that at the senior level of the European Operating Committee, we work through
what we would see as a diversity score card. And that talks about role modelling and leading
the way for a diverse workforce, about having inclusion and respect for the environment,
talks about work-life integration, talks about external partnership. And against each of those
strategic areas we write down two or three strategic actions that we will seek to retrieve … [in
a given year] And then those objectives are communicated through the organisation through
our policy deployment process and we therefore expect each of the functions to ensure that their
managers have diversity objectives around those strategic priorities.
(Gay man, network group, Carco)
Promotion of LGBT-Friendly Policy and Benefits
Perhaps not surprisingly given that these were ‘good practice’ organisations and the law
now requires equality of treatment, a wide range of same sex benefits had been put in
place within the case study organisations. However, LGB respondents thought that the
level of awareness of these benefits varied considerably and the organisations could do
more to provide information on these to both employees and managers.
Greater use of Intranet/Web Pages to Reach Those LGB People Not ‘Out’
One way of promoting awareness of same sex benefits and LGB equality policies was via
intranet pages. Most of the organisations and groups/networks had taken steps to use this
facility to set up group pages and contact lists. However, these tended to be much more
advanced in the private sector organisations and were an invaluable point of contact and
information particularly for LGB respondents who were reluctant to be ‘out’ at work.
Improved linkages to HR sites and employee counselling resources were identified as
one way of assisting LGB staff to obtain information on their terms and benefits without
having to ‘out’ themselves to a manager in order to request this information.
More ‘Out’ LGB Role Models
Particularly at senior levels within organisations LGB role models were seen as an
important way of increasing the visibility of LGB workers’ experiences and legitimising
policy. LGB respondents thought that senior LGB staff provided an important signal to
LGB employees that it was possible to be ‘out’ and succeed within the organisation:
I don’t think we have a lack of resources. I think what we need is more out executives as role
models from the LGBT community. I think those role models are incredibly important. And you
know, I’d like to think that the company will always promote the best person for the job and I
don’t believe that, I don’t believe that the reason that we don’t have LGBT execs as many as we
would like, especially here in Europe is because … they have been discriminated against. But I
would just so love it if we could have more senior execs who are LGBT particularly in Europe.
In the States they have got a plethora of them.
(Lesbian, Itco)
LGBT Mentoring Systems
Similarly, mentoring initiatives were seen as a way of promoting inclusion particularly for
younger LGB workers by private sector respondents:
I like to see proactive encouragement and sponsorship and funding for mentoring for younger
LGBT employers, people who have just come in, who maybe only just come out, struggling with
their sexuality, and helping them and offering career mentoring as well.
(Gay man, Itco)
LGBT Recruitment and Induction Initiatives
Another way of demonstrating policy commitment suggested by respondents across the

sectors was targeted recruitment advertising and initiatives. Private sector employers had
more resources to do this than public and voluntary sector employers. LGB respondents
were keen to see their employers advertise in the LGBT media and participate in a range of
other initiatives. For example Bankco and Financeco through the Inter-bank LGBT Forum
had sponsored events such as the annual LGBT careers event ‘OUT in the City’ and all
five of the organisations were listed in the Stonewall’s Lesbian & Gay Recruitment Guide as
good places for LGBT people to work. In addition, communicating diversity policy to all
new staff via induction programmes was seen by LGB respondents as crucial to moving
towards an inclusive workplace but coverage could be uneven if left to individual units or
businesses within an organisation:
In theory equality and diversity is part of induction and networks should be part of induction.
The problem is that currently, I would say, induction is very much left to individual businesses.
So I know of contact centres, where there is a great induction, the [equality] networks are all
talked about.... That isn’t necessarily the case in other areas.
(Lesbian, Comco)
Sexual Orientation Monitoring
LGB respondents expressed a range of views about the desirability and efficacy of monitoring
sexual orientation. For example concerns were expressed about the maintenance of
confidentiality and what such information might be used for. On the other hand it was
suggested, that in an appropriate context and if done sensitively and with consultation
with the trade unions, it could provide a means of demonstrating changes in practice
and understanding of the make-up of the workforce. There was evidence that where it
had been introduced in this way, as at Carco and Comco, it could be seen as a positive
indicator of the employer’s commitment to LGB employees and an important source of
benchmarking and ‘contract compliance’ data.
Benchmarking (UK and International)
Some cynicism existed about the reasons for, and implications of, benchmarking, for
example through the Stonewall Diversity Index, seeing it as about improving corporate
image or primarily as a tick-box exercise. However, in the private sector there was support
on the grounds that it was the way ‘things are done around here’ (measurement and
targets) and it focused corporate attention on the sexual orientation strand. At Bankco,
which was perceived by its LGB employees to have lagged behind competitor banks in
the sexual orientation area, those making the case for an LGBT group said it had been a
useful way to encourage the bank to move forward:
The first step we did was we basically did a benchmark study what other banks were doing …
we started meeting all the LGBT chairs…. So we asked them what they did.
(Gay man, Bankco)
On the whole, private sector respondents supported benchmarking via the Stonewall
workplace equality index and felt fortunate to work in organisations that were seen as
trying to move forward in the sexual orientation area:
I think I have been lucky working for a company like this. I have my beefs, it’s not perfect by
any means but its heart is in the right place and I think if we can help through things like
Diversity Champions, share best practice with other companies it will make the UK a better
place to live and work.
(Gay man, Itco)
Sponsorship of External LGBT Events
Organisations had sponsored pride events and a range of cultural and community LGBT
events at both national and local level which was widely welcomed by LGB private sector
respondents. This, plus the association of the corporate ‘brand’ with LGBT events, was
viewed as positive and an extension of corporate practice to the LGBT community.
Marketing to LGBT Businesses and Individuals
Although some cynicism was expressed about the business case approach underlying some
of these initiatives, it was also argued that LGB workers welcomed marketing initiatives
aimed at LGBT people because they provided positive and LGBT-friendly signals to the
workforce generally and LGB employees in particular. However, some employees thought
their organisations had been relatively slow and cautious about targeting LGB markets:
I think I would perhaps like to see [the company] perhaps becoming more active in the gay
market. I think gay people who work here, I think overall we can take this as a fairly gay-
friendly place, I don’t think [the company] is yet using that to actually try and pitch into gay
markets itself as we are a gay-friendly company. I think, Qantas has sort of done this to an
extent. You can’t board a Qantas flight without being shown the Sydney Mardi Gras.
(Gay man, Itco)
Conclusion
This chapter considers the progress being made on the inclusion of sexual orientation
within UK organisation equality/diversity policy and practice. The emerging story from
research within five private sector good practice workplaces is that Comco began to make
progress by including sexual orientation within equality policy and practice during the
1980s. Carco and Itco followed suit in the late 1990s as US policy and practice was rolled
out in the UK and Bankco and Financeco from 2000 onwards. In four of the organisations,
sexual orientation equalities work began prior to the introduction of the Employment
Equality (SO) Regulations (2003) and the Civil Partnership Act (2004). In contrast to
their public sector and voluntary sector counterparts (Colgan et al. 2009), private sector
managers did not view UK legislation outlawing discrimination on grounds of sexual
orientation as the most important impetus to the development of policy and practice
in the sexual orientation area. The one exception was Bankco which admitted that the
more positive legislative climate which has developed in the UK since 1997 (when a
Labour government was elected) had encouraged it to develop its policy and practice in
the sexual orientation area. Rather, the managers identified corporate business objectives
as the major drivers shaping diversity policy and practice. In addition, within Comco,
Carco and Itco, initially a social justice argument was combined with internal lobbying
from LGBT employees, and in Comco and Carco, their trade unions had also encouraged
them to develop work in the area.
All five of the private sector case study organisations were members of Stonewall’s
Diversity Champion’s Programme and had developed policy in line with Stonewall’s
guidance to employers (2005), however it is important to note that an ‘implementation
gap’ between equality and diversity policy and practice on sexual orientation was perceived
by LGB respondents. The implementation gap on the sexual orientation strand within
these five private sector organisations lends support to Dickens, L. (2005: 191) argument
that a reliance on business arguments is likely to have ‘uneven purchase’ and even where
these arguments do encourage action they may be ‘selective and partial,’ focused only
on areas where business and equality and diversity needs coincide. Thus, organisational
change in terms of diversity policy and practice even within ‘good practice organisations’,
still may not necessarily guarantee a LGB-friendly working environment framework in the
UK let alone within a more complex global organisational context (Bond et al. 2009).
Although welcoming the more comprehensive protection offered by legislation in
the UK, private sector LGB respondents still looked to their organisation’s management
to provide proactive and effective leadership on equality and diversity issues and not treat
the sexual orientation strand as the ‘poor relation’ within the organisational drive for
equality and diversity. In addition to the establishment of an LGBT group, a key indicator
of inclusion for LGB respondents was the extent to which homophobia (in addition to
other forms of discrimination) was actively challenged at work. Respondents identified
a range of promotional, attitudinal, cultural, managerial and resource and evidential
barriers which they thought stopped policy being implemented in the private sector
(Colgan et al. 2006). Although diversity managers and corporate diversity champions
were perceived to be able to articulate and champion a business case for the inclusion of
sexual orientation within corporate diversity policy and practice, this was not seen by LGB
respondents to be reflected within middle and line management levels. LGB respondents
felt that managers at more junior levels either lacked commitment, confidence or had
not been equipped with the skills to communicate and implement sexual orientation
diversity policy which research has shown to be a persistent explanation for the gap
between policy and practice in the sexual orientation (Dickens, S. et al. 2009) and broader
diversity areas (Dickens, L. 2005).
Nevertheless, the view expressed by a majority of the LGB respondents from the
good practice private sector organisations was that they were ‘lucky’ to work in what
were perceived to be LGBT-friendly organisations. In addition to identifying the barriers
above, LGB respondents underlined the importance of establishing and resourcing
an LGBT group and identified a range of communication, recruitment, learning and
development, enforcement, monitoring, performance management and sponsorship and
marketing initiatives they thought would assist their organisations in moving forward
on sexual orientation work. Even where respondents were thinking of moving jobs, they
were unlikely to settle for less than their current employer provided, so were likely to be
aware of competitor’s policy on sexual orientation (Colgan et al. 2006). Thus tackling
discrimination and creating an inclusive organisation has been shown to have an
important impact on the job satisfaction of LGB employees, as well as encouraging greater
confidence and loyalty in the employing organisations. It is hoped that the Equality Act
2010 will assist organisations to maintain their momentum in developing inclusive and
LGBT-friendly organisations.
References
Bond, S., Hollywood, E and Colgan, F. (2009) Integration within the Workplace, Manchester: Equality
and Human Rights Commission.
Carabine, J. and Monro, S. (2004) ‘Lesbian and gay politics and participation in New Labour’s
Britain’, Social Politics, 11:2, 312–327.
Colgan, F., Creegan, C, McKearney, A. and Wright, T. (2006) Lesbian, Gay and Bisexual Workers:
Equality, Diversity and Inclusion in the Workplace? Comparative Organization and Equality Research
Centre, London Metropolitan University.
—— (2007) ‘Equality and diversity policies and practices at work: Lesbian, gay and bisexual workers’,
Equal Opportunities International, 26:6, 590–609.
—— (2009) ‘Equality and diversity in the public services: moving forward on lesbian, gay and
bisexual equality?’ Human Resource Management Journal, 19:3, 280–301.
Colgan, F. and McKearney,A. (2009) ‘Equality and diversity which way forward on sexual orientation
in the private sector?’ Equal Opportunities International Conference, Bosphorus University in
Istanbul on 15–17 July 2009.
Cooper, D. (2006) ‘Active citizenship and the governmentality of local lesbian and gay politics’,
Political Geography, 25, 921–943.
Day, N. and Schoenrade, P. (2000) ‘The relationship among reported disclosure of sexual orientation,
anti-discrimination policies, top management support and work attitudes of gay and lesbian
employees’, Personnel Review, 29:3, 346–363.
Dickens, L. (1999) ‘Beyond the business case: a three-pronged approach to equality action’, Human
Resource Management Journal, 9:1, 9–19.
——(2005) ‘Walking the talk? Equality and diversity in employment’, in Bach, S. (ed.) Managing
Human Resources: Personnel Management in Transition, Oxford: Blackwell, 178–208.
Dickens, S., Mitchell, M. and Creegan, C. (2009) Management Handling of Sexual Orientation, Religion
and Belief in the Workplace, Report prepared for Acas and CIPD, London: National Centre for
Social Research.
Hoque, K. and Noon, M. (2004) ‘Equal opportunities policy and practice in Britain: Evaluating the
“empty shell” hypothesis’, Work, Employment and Society, 18:3, 481–506.
Kersley, B., Alpin, C., Forth, J., Bryson, A., Bewley, H., Dix, G. and Oxenbridge, S. (2006) Inside the
Workplace: Findings from the 2004 Workplace Employment Relations Survey, Oxford: Butterworth.
Kirton, G. and Green, A.M. (2006) The Dynamics of Managing Diversity: A Critical Approach, Oxford:
Elsevier Butterworth-Heinemann.
—— (2009) ‘The costs and opportunities of doing diversity work in mainstream organizations’,
Human Resource Management Journal, 19:2, 159–175.
McManus, S. (2003) Sexual Orientation Research Phase 1: A Review of Methodological Approaches,
Edinburgh: The Scottish Executive.
Palmer, A. (1993) Less Equal than Others: A Survey of Lesbians and Gay Men at Work, London:
Stonewall.
Rubenstein, M. (2009) ‘The EOR guide to the Equality Bill: part 1 – general principles’, Equal
Opportunities Review, 189: June 2009.
Stonewall (2005) The Employment Equality (Sexual Orientation) Regulations: Guidelines for Employers,
London: Stonewall.
Stonewall (2006) Workplace Equality Index 2006, London.
Stonewall (2007) Living Together, London.
Stonewall (2008a) Peak Performance; Gay People and Productivity, London.
Stonewall (2008b) Workplace Equality Index 2008, London.
Stonewall (2008c) The Double-glazed Glass Ceiling: Lesbians in the Workplace, London.
Stonewall (2009) Workplace Equality Index 2008: The Top 100 Employers for Lesbian, Gay and Bisexual
People in Britain, London.
Trau, R. and Hartel, C. (2004) ‘One career, two identities: an assessment of gay men’s career
trajectory’, Career Development International, 9:7, 627–637.
Waaldijk, C. and Bonini-Baraldi, M. (2006) Sexual Orientation Discrimination in the European Union,
The Hague: T.M.C. Asser Press.
Walsh, J. (2007) ‘Equality and diversity in British workplaces: the 2004 Workplace Employment
Relations Survey’, Industrial Relations Journal, 38:4, 303–319.
Ward, J. and Winstanley, D. (2004) ‘Sexuality and the city: exploring the experience of minority
sexual identity through storytelling’, Culture and Organization, 10:3, 219–236.
Race, Migration and
Religion
9 The Racialised
chapter
Organisation:
The Experiences of
Black Managers
TRACIE JOLLIFF
Introduction
The work of achieving racial equality within an organisational context is both complex and
continuous. The complexity stems from the fact that the very notions of both race, and of
what it means to have equality of race, are subject to interpretation and debate. Clarification
of these notions is needed before racial equality can be understood and then achieved.
The production of such equality however, can only be considered legitimate if
the subjects of the actions of equality creation subsequently acquire the experiences of
liberation as anticipated. This liberation includes the freedom to speak, to choose and
to be present in the same way as those who have never suffered the detriments of racial
discrimination.
In this chapter, I will draw upon relevant theory in order to better understand how to
create the organisational conditions which promote race equality, and consider some of
the often hidden dynamics of racialisation within organisations. The use of a case study
and my own research with black managers will serve to illuminate how these theories
are experienced in practice, and – most importantly – in the lived experiences of black1
employees, who work within our allegedly racially neutral organisational worlds.
In considering the experiences of black organisational actors, I do not suggest that
discrimination has no relevance to issues of culture, ethnicity and religion, for example;
however within this short chapter, it is only possible to illustrate my arguments from
a much narrower viewpoint than I would ordinarily choose. Notwithstanding this,
I consider that the viewpoint presented here, focusing on the experiences of visible
minorities, has much to contribute to this subject. It is my intention that this approach
will aid consideration of the complexities of the subject, by bringing some of the contours
of the obstacles to racial equality into sharper focus.
1 The word black here is used as a collective term to describe those who share a common experience of racism based
upon visible racial characteristics or other markers.
In conclusion, I will offer some insights gained from my research, which contributes to
a growing body of knowledge of the experiences of black managers within organisations.
I will do this in order to propose some ways in which the passage towards greater racial
equality in the workplace might be achieved in more meaningful ways.
The Big Picture: Racial Histories and Ideas about Racial Differences
In order to engage with this subject, we need first to scrutinise the concept of race itself
and to understand how this concept has ushered in certain forms of organisational
practices and behaviours, based upon notions of racial sameness and racial difference.
Race and racism are contested concepts and theorists have interpreted both the
phenomena and their causes differently. This section considers some of the presumptions
that are often omitted from prevailing organisational conversations about race. In
examining both race and racism, we first need to refer to the historic contextual setting
that has influenced contemporary organisational ideas, and racial activities, and is of
fundamental relevance to this work.
The Certainty of Race
Carolus Linnaeus began the process of racial classification as we now recognise it, in 1753
and concluded that four classifications of race are objectively observable. This viewpoint
holds within it assumptions about racial certainty and its meanings. The importance of
this viewpoint lies in its implications as adeptly articulated by theorists such as Dalal
(2002), Goldberg (2004) and Khan (2005). Such certainty about race leads to the notions
that these external (racial) characteristics point to and corroborate internal characteristics
and aptitudes. These ideas then invite subjective judgements and comparisons between
races, the culmination of which gives credence to beliefs about racial inferiority and
superiority. The hierarchical nature of race which underpins Linnaeus’s categorisations
suggests that lighter skinned people are inherently superior to those with darker skins.
Human racial characteristics, far from being distinctive and separate, are simply part
of a continuum of human variation and features that cannot be neatly packaged and
categorised as Linnaeus suggests. The real histories of human variation that demonstrate
the fallibility of any notion of racial certainty and purity is found within the emergence
of genetic science.
The current global and dominant ideological discourse on race (which is based upon
the above assumptions of the immutability of race) is one in which skin colour is of
gargantuan significance. Racial characteristics then become determining features of
destiny, status and choices, described in the following way by Dalal, ‘Racism is a form of
organising peoples, commodities and the relationship between them by making reference
to a notion of race’ (Dalal 2002: 27).
In the absence of such rigid classifications of race and their accompanying assumed
meanings, contemporary racism (based upon visible racial markers) can neither be
activated nor maintained. Race then is a social construct.
West (2004: 91) suggests that the philosophical underpinnings of contemporary
racialised thoughts and beliefs have their origins in western classical ideas of rationality.
Such rationality deemed it to be irrational, barbaric or mad to suggest black equality
T h e R a c i a l i s e d O r g a n i s a t i o n : T h e E x p e r i e n c e s o f B l a c k M a n a g e r s 115
[with whiteness] in beauty, culture, and intellectual capacity. Goldberg (2004) describes
a history of racialisation in which race increasingly became conceptually entangled with
and inseparable from, concepts of morality, in that the inferior races were intrinsically
less moral than the superior race – white people. In his view the ubiquity of such messages
became deeply rooted within philosophical and political discourses and, importantly, the
authority to construct racial classifications was retained by the superior. He goes on to
ask:
If race was a morally irrelevant category and this was the basis of racism’s immorality, as
liberal philosophical commitments would have it, how could it be that social, economic and
political exclusions predicated on racial belonging seemed so readily rationalized, as much
contemporarily as historically? If race really is a category that makes no rational sense, why
does it enter so readily into the everyday calculations of rational people and politicians?
(Goldberg 2004: 424)
Racialised thinking is therefore entrenched within contemporary discourses of

rationality and is then presented as a normal response to everyday situations. Such
normality conveys and reinforces these unquestioned historical misunderstandings.
Specific human actions and responses are located in, and can only be understood
through the lens of, this global, historical and ideological discourse about race; which
consequently shapes our conscious and unconscious responses to our encounters with
both racial sameness and racial difference.
Why Are Such Ideas About Race Significant?
The power of such ideas about race lie within their ability to first separate out, and then
to target and dehumanise, its objects (Dalal 2002). This dehumanisation process is often
subtle and is revealed in this chapter in two ways. One, by bringing into view or raising to
consciousness the assumptions that organisational actors make in relation to the racialised
subject and second, via a willingness (on the part of the reader) to hear and acknowledge
the lived experiences of black organisational actors. In saying this, I am proposing that
such normalisation of racism is located within the very routine regimes (Cassin 2006)
of organisational functions, hence is a systemic and philosophical component of the
institutional DNA.
All organisational actors are raced, that is to say that specific labels with accompanying
expectations and perceptions are attributed to them by other actors on the basis of their
race. The systems, created by people who have been socialised within the historical context
outlined above, are therefore imbued with collective and often unconscious associations
of race. Organisations therefore neither express nor perform racially neutral actions as
a given; in fact, the resultant historical default setting of racial bias presupposes that
actions influenced by racialisation are part and parcel of the way we think and behave
one towards another. Claims of racial neutrality are symptomatic therefore of a perpetual
denial of the realities many individuals face; and are borne out of a legacy of inequality
of voice and legitimacy. Such denial serves to maintain the status quo of inequality and is
part of the racialised organisational mechanisms that contribute towards marginalisation.
Understanding White Racialised Identities and Power Within

Organisations
With such polarising concepts of race at work within the organisational collective mind,
it is important to situate the role of racial whiteness within these relational and power
dynamics. Conversations about whiteness within organisations rarely occur. This signals
an acceptance of assumptions about white ways of being and doing as being perfectly normal
and therefore requiring no questioning. Such assumptions mean that key organisational
features which propel racialisation become obscured, such as the race/power relationships
associated with whiteness (Macalpine and Marsh 2005). The collective and accepted
conclusions drawn from this lack of scrutiny of whiteness (and therefore an absence
of analysis of white collusive practices) can explain why many organisations consider
themselves to be racially neutral and fail either to understand, or have a willingness to
accept, the lived experiences of black employees and customers.
Those whose physical characteristics are deemed to denote inferiority, as a group,
experience the most harmful effects of racism. Their very presence is always located
by such racialisation. The purpose of the classifications of race mentioned above, can
be viewed with clarity in the context of racial histories. Such rigidity of classifications
have been used to justify human degradation, some of the most brutal examples of
which have been the global slave trade over the last 500 years. The same patterns of
racialisation, however, can also be seen at work (often expressed through discourses of
difference relating to race, culture or ethnicity) in more concealed forms within modern
and seemingly enlightened organisations.
It is these ideas of racial certainty which shape dominant organisational conversations
as a starting point for building racial equality. Yet such ideas are inherently questionable,
both scientifically and ethically. If such ethically suspect perceptions of race underpin
dominant discourses, and these in turn dictate organisational practices of creating racial
equality, it is likely that the kind of equality created by such knowledge would also
contain similar ethical fault lines. Such fault lines can be detected only by examining the
experiences of those at whom racism is mainly targeted.
The organisational work that delivers racial equality should therefore hold real
meaning to those for whom such equality is being created. The implications of the above
arguments are best illustrated by considering the experiences of black organisational
actors, who represent some of the recipients of current organisational practice in relation
to race equality practice.
The Racialised Organisational Experience: How Black

Employees Experience Racism in Action
Personal experiences of race identity within organisations tend to mirror the ubiquity
of racialised notions in society. These notions are linked to, and inseparable from the
production of systemic outcomes of racial inequality. This can be seen in the following
case study of my own experience as a black manager where I will tease out some of the
theoretical concepts I have already mentioned.
Case Study
Within a few weeks of my appointment as a first line manager, the only black manager within
the department, a couple of my white subordinates began to make complaints. They did not
express these to me, but instead went directly to my line manager. The first I heard of this was
when I was asked by my manager to a three-way meeting with one of the complainants, who
then explained the grounds for her disquiet. I had complimented her one morning about
her hair and she had subsequently taken offence because she deemed the comment to be
personal, and therefore unprofessional.
I worked at that time in a team with a majority of women, where it was commonplace to hear
compliments about hair and other aspects of physical appearance. In puzzlement I asked the
worker concerned why she was not calling any of the other team members and the other
manager who made such comments unprofessional; she maintained what appeared to be a
genuinely thoughtful pause, and then responded by saying ‘I don’t know’.
I later addressed my manager Z about this meeting, and asked her why she had not simply
referred the worker back to me, highlighting the differential way in which I had been treated
(which also alluded to the inappropriate handling of the situation by Z). I was subsequently
told that the team historically included many different workers from different cultures (she
then proceeded to name a few non-English but white previous workers) and emphasised that
none of them had brought such trouble with them into the team (as I was clearly doing).
A number of important features can be seen here, which I will now discuss.
Unconscious Actions and White Collusive Practices
Here we see an example of racialised motivations which are also infused with notions
of moral superiority. These are illuminated by the choices made as to what constitutes a
valid complaint, and how to address a complaint about a black manager.
It is quite believable that both of the white actors in this case were responding
unconsciously to (their own and the collective organisations’) embedded and systemic
racial presumptions. When asked to explain her differential treatment of me, the worker
was unable to consciously account for this and the manager Z was also not able to see
that she had given credibility to the worker’s complaint by the way she had responded
to it.
White Assumptions of Neutrality
In considering the inter-relational power dynamics associated with this scenario, we see
white collusive practices at work. My manager could have sent the worker to me as the
direct line manager, especially given the trivial nature of the complaint. It is interesting
that, not only did she fail to do this, but she deemed it to be appropriate to give credence
to the allegation. This was done via the process selected to address the situation.
One would normally expect such a process (a request to attend a three-way meeting
with no prior knowledge of the meeting’s content) to be associated with, at the very
least, a serious breach of professional conduct. The worker’s complaint was therefore
inadvertently given legitimacy; her differential treatment of a black manager endorsed
and also credited with a degree of moral authenticity.
The whiteness of both of the other organisational actors in this case is important
and, the absence of any meaningful appraisal of this feature, meant that some basic
assumptions were made. One being that white people are racially neutral and do not have
racialised motivations unless such motivations are explicitly stated. The other being that
black people must be at fault if a white person feels the need to make a complaint about
them, a presumption associated with the activation of the racial inferiority/superiority
dichotomy. It is significant here that no further examination of the complaint was
seemingly conducted. A more robust analysis of the situation may have revealed some
underlying and shared fears associated with certain stereotypes about black aggression,
which resulted in the white actors feeling the need to protect one another in such
circumstances.
Racism did its work in locating and targeting the subject and then expertly retargeting
the subject (Dalal 2002). The retargeting in this case was done by suggesting that the
responsibility for my unfair treatment lay with me, for bringing this uninvited racism
into the team. Such retargeting is often used as an effective organisational defence in the
light of a racist complaint, and delivers a particular kind of dilemma for black managers
and employees in the midst of an already racially charged situation. Through a racially
distorted organisational lens, the customary response to black employees who raise issues
of race is to construe it as a banal black obsession with skin colour.
White Denial of the Realities of Racism
We also see here the denial of my experience of racism, both implied and explicitly stated
within the retargeting and blame scenario. The view was that I had clearly been mistaken
as to the racialised nature of my experience.
This process was played out with seemingly no recognition on the part of the other
two organisational actors of bias, unfairness or collusion. I knew both intuitively and by
virtue of reason that the events described had been partly if not wholly racially motivated,
despite the fact that the organisation (as experienced by me through my manager) was
now demanding proof of my knowing. This proof, I felt I had already delivered.
The Experiences of Black Managers in Organisations
The experiences of black managers and employees is the subject of much inquiry (Douglas
1998; Bravette 1996; Ahmad 1992; Alleyne 2004), however I believe the fundamental
issues raised seldom, if ever, find their way into mainstream narratives of management
and leadership in Britain, the United States or any other western country.
Douglas (1998) signals the relevance of her own racialised experiences beginning
in her formative years and highlights how such experiences create the backdrop to
organisational survival strategies used by black managers. She notices how these survival
strategies are used by black managers in their decision-making processes (as they attempt to
unconsciously avoid the harm caused by racism) which then have certain consequences for
their circumstances and careers. This kind of defensive decision-making leads to black
managers having a restricted and diminishing field of choices in comparison to their
white counterparts. Thus black managers’ decision-making is far more onerous and
emotionally demanding.
Allyne (2004) also discusses the personal cost of the racialised experience in her
work on race-related workplace stress. She discovers common patterns with respect to
the psychological harm done to black professionals who are exposed to and affected
by continual race-laden dilemmas in the workplace. Cassin (2006) suggests that the
work associated with negotiating one’s identity in the workplace is largely unknown to
majorities. It is the hidden nature of this work which contributes to the creation of an
environment where black managers feel they have little option but to remain constantly
silenced about the nature of their racialised experiences (Bravette 1996). In the light
of such deeply felt accounts, it is hard to maintain a naïve stance which supposes that
systemic racialisation is incidental and largely benign. This is not to say that all black
managers claim to have encountered racism within their organisations. However it is
worth commenting that just as not all women positively contribute to the elimination of
gender discrimination in the workplace due to a lack of awareness of the pertinent issues,
black managers, by virtue of their blackness (as visibly determined), do not necessarily
speak from a black perspective, which here means taking a particular political stance.
Ahmad (1990: 3) writes:
The motivation that energises a Black perspective is rooted to the principle of racial equality and
justice. The articulation that voices a Black perspective is part of a process that is committed to
replacing the white distortion of Black reality with Black writings of Black experience.
The negative impact of unconscious and racialised actions upon others should not be
continually justified: organisations have moral and legal responsibilities to safeguard the
psychological welfare of all employees equally. The production of race equality therefore,
must include an analysis of events which enables organisational actors to become aware
of, and to take responsibility for, the consequences of their behaviours upon others. It
is difficult to argue that there is no link between the production and maintenance of
racialised environments and the degree to which these contribute towards increased levels
of stress, decreased levels of performance and a devaluing of self for black organisational
actors.
In researching the experiences of black managers within the public sector (Jolliff
2008) I found a number of similarities to my own experiences. This was a small-scale
research project with five participants (three female and two male) located within
public sector organisations across the south of England. The aim was to explore whether
the experiential stories of black managers themselves had worth in helping decision-
makers to move forward the racial equality agenda within organisations, and if so,
what contribution these stories could make. The research question was addressed using
a qualitative approach, through interviews and action–inquiry methodology with a
psychoanalytical focus. Black managers seemed intuitively to know of the real possibilities
for being both misunderstood or marginalised if they raised the issues of race which were
salient to them in the workplace. They formulated strategies to deal with both the taboos
around race and the constant, but mostly veiled, questions about their legitimacy in their
role, competence, voice and relationships within the workplace. One manager stated:
There is a qualitative difference for black managers in organizations in relation to power

relationships … the trustful and supportive relationship that is often taken for granted between
white managers breaks down; white colleagues then revert back to inflexible procedural dictate
with black colleagues … the outcome of this is that it becomes more difficult for me as a
manager to achieve the same outcomes, because I am not given the same room for manoeuvre
or error.
(Jolliff 2008: 104)
I will now consider some of the issues which black managers said were most significant
to them, and relate these to the evidence of organisational ways of maintaining racialised
processes which lead to discrimination.
Skin Colour Matters
First, black managers know that skin colour matters and that it can wield huge influence
upon the relational dynamics of power, organisational belonging (including networking),
voice, career choices and progression (Cook et al. 2003). All of the managers were aware
that they were both very visible as minorities in their roles and that this visibility was
fraught with potential hazards. Some managers talked about experiencing isolation with
regard to understandings of racialisation and the need to constantly use sophisticated
levels of reflection and political skills where racism and its effects were detected. For
example, they recognised the pitfalls of overtly championing race equality due to the
ease with which they could be labelled as only having expertise when it comes to race
issues, their other contributions being overlooked.
The Collusive Denial of Racism
Mistaken assumptions are made about the eagerness with which black managers
are purported to make racial allegations; it seemed from this research that quite the
opposite was true. The reluctance of the managers to raise issues of race was often a
feature of a discursive void in the context of racial organisational taboos. This multitude
of organisational silences, policed partly through anxiety, were clearly a means of
maintaining current relational and power dynamics.
This silence about racism was primarily because they felt that raising such issues
would negatively affect their relationships with their white managers, who for various
reasons were perceived not to want to hear about such issues. Black managers supposed
that it was too risky for them to be open about their lived realities of racism within
organisations that did not demonstrate that there was a common language with which
to articulate the nuances associated with racialisation. Organisational denial of racial
realities served effectively to silence black managers about race (Bravette 1996).
Negotiating Identities: Personal Choices About Identity in the

Workplace
McLaughlin (2007) says that social identity includes both ascribed and assumed identity
traits; ascription being that which is externally imposed whilst assumption is that which is
internally determined, that is, choosing to identify oneself as being part of a particular group.
The degree to which one can then manipulate one’s identity is directly related to the
visibility of the identity trait and the degree to which one can avoid ascription.
The relationship then between these notions of ascription and assumption is a
constantly changing equilibrium which is sensitive to issues such as context and status.
The notion of multiple identities adds complexity to the process of negotiating identities.
For instance, how do you accurately determine which aspect of your identity is most
significant in any given scenario, either to yourself or to other actors? Inevitably dilemmas
arise and choices have to be made, which further determine the meanings that we give
to our experiences and subsequently determine the perspective from which we see. These
negotiations were being constantly made by black managers in my research.
It is argued by McLaughlin (2007: 73) that:
The work involved in identification processes is therefore complex, multiple, sustained and
significant. It is also work which is unequally distributed – those with multiple minority group
affiliations open to them or ascribed to them must juggle their various othernesses in order to
secure beneficial or even neutral outcomes.
In my research, one manager described that she was conscious of being both female
and black, both of which represented minority presence at her level in the organisation.
She actively and consciously formed allegiances with other women, with whom she could
share common experiences of exclusion and seldom, if ever, would mention her racial
identity (and the experiences she encountered because of this) as she felt that this would
cause discomfort for her white female colleagues, and lead to her being marginalised by
this vital network
McLaughlin also argues that this work is a burden which is largely unknown by
dominant majority groups and involves the:
Securing of legitimacy and credibility of presence; [where] presence is inherently questionable in

relation to people identified in terms of minority group traits.
(McLaughlin 2007: 73)
In summary, some recurring themes that emerged are highlighted below. It is important
to note that due to the small number of managers involved, the findings should not be
assumed to relate to all black managers, but are useful to consider when determining how
organisational racial equality can be meaningfully produced.
Managers generally avoided explicitly discussing issues of racialisation with white
actors, even if they had personally encountered racism. They also (often unconsciously)
steered clear of situations which could result in them being ascribed with negative
racial stereotypes or, which limited the perception of their expertise to race issues alone.
Managers recognised that there is worth in knowledge created from black organisational
experiences and therefore acknowledged the need to have black support networks.
However these networks were pursued with some care, with much dialogue regarding
organisational racialisation within and between networks serving several purposes
including, validation, resistance and as a survival strategy.
Some were aware that selected defensive strategies such as over-emphasising aspects of
self which white organisations found to be acceptable (the corollary being to devalue the
other aspects of self) that are used to survive organisational expressions of racialisation,
can become problematic and detrimental to them personally over time. They discussed the
short-lived benefits of such strategies and the long-term negative effect on the emotional
and psychological self of these ways of being.
Additional forms of knowledge about their roles, their business and political skills
are essential to success within race sensitive organisations. Managers would work hard
to acquire this knowledge as they felt that they were required to continually justify their
presence and competence in their roles.
Mangers interviewed shared a common wish to exercise influence for racial justice and
therefore felt as though they were accountable not just to their organisations in the usual
ways, but also to other black people for the degree to which they were able to influence
their organisations in seeking greater racial equality, within the constraints described
above. At times the negotiations associated with these endeavours were found to be both
rewarding and fatiguing. Interviewees signalled a need for leadership programmes across
organisations which address the realities for the black managers within.
I am not proposing that the racialised actions of the white actors within the workplace
were always conscious; in fact in my own case managers were genuinely perplexed by the
behaviours of the team members concerned. But what caused them even greater anxiety
was the consideration that there could possibly be a racist element to the actions of
individuals they both knew and had worked well with. However, their inability to separate
these essential elements led them to pursue a fundamentally flawed analysis, borne from
a racially distorted logic to a similarly flawed conclusion. They considered their white
colleagues to be nice people, and nice people cannot therefore be racist people (a form
of denial in relation to black realities of racism and a consequence of the assumption
of white moral superiority). A second element is linked with and follows on from the
first. Due to black people’s assumed oversensitivity in relation to the subject of race, it is
beholden then upon white people to point out the black person’s error and try, at least
initially, to persuade them as to the neutrality of white interactions with them.
The above experiences signal a requirement for organisations to address the issues
that black managers identify as being important for the elimination of racial inequality.
Organisations then need to get beneath the discourses of power and colour that
currently dominate, in order to open up discussions about what constitutes race equality
competence in white managers, and what constitutes empowerment for black managers.
The secrecy and denial of the realities of racialisation need to be exposed in conjunction
with a commitment to the examination of whiteness as a racialised category and its
implications for organisational behaviours.
The Business Case and the Implications for Race Equality of the
Diversity Narrative
The diversity narrative is a generic approach to equalities that emphasises the multiple
equality strands (race, gender, disability, religion and belief, age and sexual orientation).
It is an approach that fits well with ideas of plurality and modernity. Diversity has also
embraced a business model and supports ideas about the potential gains for businesses
through promoting equality.
There are a number of dangers with this emphasis, not least that the business case
can become the primary focus as opposed to moral or ethical drivers for equality creation.
History shows that market sovereignty as a shaper for equality is inherently tremulous, as
it suggests that, if it can be demonstrated that discrimination does not harm profitability
there is justification for its continuation. Such arguments were articulated as a reason for
the continuation of slavery and are evident currently in relation to various discourses about
global inequalities on a number of different levels both here in Britain and internationally.
Market driven ideas for equality can be evident in relation to organisational economics of
race equality. For example, proposed positive action initiatives to increase representation
at senior levels often face internal organisational resistance on the basis of cost and
efficiencies (Noon 2007).
Critics of the diversity approach such as Creegan et al. (2003) and Dickens (1994)
also question the underlying economic rationale for diversity. Wrench (2005) concurs
with the above arguments, linking the drive for evidence-based decision-making within
British public sector organisations to marketisation.
Business-based arguments for equality also obscure issues such as structural
disadvantage, ethics, discrimination and power. Consequently, through diversity,
organisations can create the illusion of investment in race equality and of making progress;
whereas they are actually carrying out endless and often ineffectual bureaucratic activities
driven by wider policy frameworks. The outcomes sought from such activities are often
over-reliant on quantitative evidence gathering (McLaughlin 2007) to the satisfaction of
audit compliance, when on the ground there is far too often little real change (National
Employment Panel 2007; Wood et al. 2009).
Diversity is also accused of being a blanket approach without seeing issues in depth
such as the inherent conflicts between the various equality strands (Jones et al. 2000). It is
argued that one of the real intentions (of the white powerful collective) of this approach
to equality is to depoliticise race (Khan 2006; Wrench 2004).
The irony is that racism can be an endemic and explicit component of the relationships
between colleagues, whilst simultaneously organisations are celebrating excellence. Surely
this kind of inconsistency is an absurd indication that all is not well with the creation of
racial equality.
Diversity Reinforcing Racial Certainty
A key feature of the diversity approach is that it requires black presence or participation as
an indication of success. This presence can mean that where the numbers of black people
within populations are small, one black manager within a management team would give
the statistical illusion of representation and therefore equality. The significance of the
need to locate difference via categorisation is paramount here. It is therefore implicit
that it is not advantageous to question the racial rigidity upon which diversity relies in
order to justify progress. Diversity, far from moving towards the liberation of self from the
constructs of race, capitalises upon race with its underlying assumptions. It reintroduces
immutability as a concept with the accompanying drip feed of limiting stereotypes
which arise from such categorisations. If this underlying ideology of immutability leads
to unethical practices as argued above, this helps us to understand how beneath the
palatable approach of diversity, racism can be both incubated and activated (to the
surprise of many) out of a sea of seeming tolerance and reason (Dalal 2002). Thus the
diversity discourse can reinforce organisational behaviours which are rigid and unhelpful
for progress on racial equality.
Although it is important that presence and participation are considered to be

indicators of progress, there needs to be a questioning of both the legitimacy and efficacy
of the over-reliance upon such categorisations as a mechanism for the production of
racial equality.
Conclusion
The race equality journey is incomplete and needs to be reinvigorated in new and
meaningful ways for those who experience the greatest detriments from the persistence
of this form of inequality. New ways need to capture and embrace the significance of
the racialised experience, as told by those who live the realities of organisational racial
discrimination.
The challenges of such an approach are manifold, not least, implying that organisations
will need to consider how they can build capability both to understand and to embed
such learning. This must first stem from the narratives of black organisational actors and
therefore the conditions must be created whereby there is a willingness to hear these
racialised narratives in the first instance.
In my experience as an organisational consultant working across all sectors in Britain,
it is imperative that HR professionals and others who are dealing with issues of racial
equality understand that the approach required to unpack this kind of complexity
goes beyond external perspectives and quantitative data analysis, and requires the
introduction of evidence which probes meanings held by both individuals and groups.
Policy formulation therefore needs to be built upon the idea of putting black voices at
the centre in order to effect considerable changes in the way systems are both understood
and experienced.
White actors need to acknowledge that they too are racialised subjects and do not hold
monopolies of neutrality when it comes to race. This approach necessitates a candour
which can be unfamiliar within corporate life, which is often preoccupied by issues
relating to reputation, politics and economics, among other concerns. But an essential
prerequisite for progress is an opening up of the silences associated with race in order for
the next chapter of the journey towards race equality to be written. If those who are in
positions of influence can understand and then ethically and visibly lead in relation to
some of these changes, the disassembling of the racial mechanisms which have ensured a
kind of organisational experiential apartheid will begin to be dismantled.
Such a stance will require courage, both to consider truthfully aspects of self and
unquestioned assumptions held about race, and also to introduce a new dialogue about
race into organisations. This kind of dialogue must be one that truly honours the
collaborative contributions of black and white (racialised subjects) in relation to both the
process of understanding and of practically creating the conditions within which racial
equality becomes a reality.
Recommendations for Action
In summary, I propose that organisations could consider the following in order to make
progress towards racial equality:
Emphasising the ethical case for change
Business arguments about race equality when taken in isolation are too flimsy and do not
present a reliable lever for progress. The social justice, ethical and structural arguments
for why race equality should be pursued will bring both balance and perspective to
organisations seeking to transform the way they understand and do race equality.
Demonstrating racial competence
Competency frameworks could be more robust and be able to locate specific skills which
demonstrate that managers understand how to work with racial diversity in ways which
promote positive outcomes. This requires that white managers understand and promote a
black perspective within the workplace, as well as understanding constructs of whiteness.
Such frameworks should not be mere ‘tick-box’ exercises, but should limit the professional
progression of individual managers who are unable to demonstrate these essential skills.
The criteria could include specific and targeted requirements which demonstrate abilities
such as:
• Reflexive practice, the demonstrable taking on of responsibility for making changes and
showing continuous learning/inquiry and adaptability to changing circumstances.
• Enabling employees to give practical examples, which can be corroborated by others,
where managers have demonstrated the use of appropriate language, skills of analysis
and reflection in order to promote racial equality in the workplace.
Judgements about whether managers have demonstrated competence in such cases

could be made by multiple actors who have experienced the leadership skills of the
manager concerned, and who themselves are able to demonstrate the knowledge and
competencies concerned.
Dealing with denial
Organisational leaders could help to eliminate organisational denial of racism by

acknowledging the lack of racial neutrality within their organisations as a starting point
to develop and champion strategies for change. Such strategies would require all managers
to demonstrate how they will ensure that bias through racialisation is addressed within
the workplace, including challenging and eliminating discrimination in relation to, for
example, recruitment, retention, promotion and language.
Black managers breaking the silence
Once the above initiatives are secured, it would be more likely that black managers and
staff would feel able to speak about their experiences. It is essential that their voices are
heard at the highest levels of the organisation where targeted action can result from this
knowledge. Organisations would need to be adaptable and able to move swiftly to address
issues as they arise.
Addressing the realities for black managers
Black managers could be offered specific and tailored leadership development programmes
that raise their awareness of some of the hidden racialised obstacles they may encounter
within organisational life. This approach would need to have a focus upon empowerment
through voice, and equip black managers with strategies for leadership success and
resilience. Similarly, positive action initiatives would need to be implemented to locate
black talent early within organisations with, for example, programmes for aspiring leaders
and specific targeted coaching sessions.
Building organisational capability for change
All managers and staff should have compulsory and ongoing input through training,
coaching and performance management processes to equip them to both understand the
relational dynamics of race, and develop the skills which can support the emergence of
black talent within their organisations. The content of such intervention could include
issues about collusion, denial, understanding black perspectives and social constructs of
race and power.
Organisations would need to promote cultures of collaboration, where employees
support each other’s learning and work together towards policy formulation and
practice which delivers both the hope for, and the reality of racial equality and personal
liberation.
References
Ahmad, B. (1990), Black Perspectives in Social Work, Birmingham: Venture Press.
—— (1992), Dictionary of Black Managers in White Organisations, London: Race Equality Unit/National
Institute for Social Work.
Alleyne, A. (2004), ‘Race-specific workplace stress’, Counselling and Psychotherapy Journal, 15(8),
30–33.
Bravette, G. (1996), ‘Reflections on a black woman’s management learning’, Women in Management
Review, 11(3), 3–11.
Cassin, M. (2006), Routine Regimes: Systematic Discrimination, Inequality and Privilege [online] Available from:
http://www.qub.ac.uk/sites/EqualitySocialInclusionInIreland-HomePage/FileStore/Filetoupload,
23783,en.doc [accessed 30 May 2007].
Cook, L., Halford, S. and Leonard, P. (2003), Racism in the Medical Profession: The Experience of UK
Graduates, British Medical Association. Available from: http://www.bma.org.uk/images/racism_
tcm41-163293.pdf [accessed 27 October 2006].
Creegan, C., Colgan, F., Charlesworth. R. and Robinson, G. (2003), ‘Race equality policies at work:
employee perceptions of the “Implementation Gap” in a UK Local Authority’, Work, Employment
and Society, 17, 617–640.
Dalal, F. (2002), Race, Colour and the Processes of Racialization: New Perspectives From Group Analysis,
Psychoanalysis and Sociology, Hove and New York: Brunner-Routledge.
Dickens, L. (1994), ‘The business case for women’s equality: is the carrot better than the stick?’
Employee Relations 16(8), 5–18.
Douglas, C. (1998), From Surviving to Thriving: Black Women Managers in Britain [online] Available
from: http://www.bath.ac.uk/carpp/publications/doc_theses_links/c_douglas.html [accessed
2 January 2007].
Goldberg, D.T. (2004), ‘Reflections on “Modernity, Race and Morality”’, in Essed, P. and Goldberg,
D.T. (eds) Race Critical Theories, Oxford: Blackwell.
Jolliff, T. (2008), ‘Truths, lies and imaginations of racial equality: Do Black managers’ stories have
worth in helping public sector organisations to move forward the racial equality agenda?’,
Unpublished Masters thesis: University of the West of England.
Jones, D., Pringle, J. and Shepherd, D. (2000), ‘Managing diversity meets Aotearoa/New Zealand’,
Personnel Review, 29(3), 364–380.
Khan, K. (2006), ‘One step forward, one step back: The politics of “race” and drugs and how policy
makers interpret things’, in Lart, R., Higate, P. and Hughes, R. (eds), Drug Policy and Politics,
McGraw Hill: Open University Press.
Macalpine, M. and Marsh, S. (2005), ‘“On being white: there’s nothing I can say”: exploring
whiteness and power in organizations’, Management Learning, 36(4), 429–450.
McLaughlin, E. (2007), ‘The equality chameleon: reflections on social identity, passing, and
groupism’, Social Policy & Society, 6(1), 69–79.
National Employment Panel (2007), 60/76 The Business Commission on Race Equality in the
Workplace, London: National Employment Panel. Available from: http://www.dwp.gov.uk/docs/
buscommissionreport.pdf [accessed 2 January 2008].
Noon, M. (2007), ‘The fatal flaws of diversity and the business case for ethnic minorities’, Work,
Employment and Society, 21(4), 773–784.
West, C. (2004), ‘A genealogy of modern racism’, in Essed, P. and Goldberg, D.T. (eds), Race Critical
Theories, Oxford: Blackwell.
Wood, M., Hales, J., Purdon, S., Sejersen, T. and Hayllar, O. (2009), A Test for Racial Discrimination in
Recruitment Practice in British Cities, London: Department for Work and Pensions.
Wrench, J. (2004), ‘Trade union responses to immigrants and ethnic equality in Denmark and the
UK: The context of consensus and conflict’, European Journal of Industrial Relations, 10(1), 7–30.
—— (2005), ‘Diversity management can be bad for you’, Race & Class, 46, 27.
10 The Role of Trade Unions
chapter
in Fighting Racial
Discrimination
WILF SULLIVAN
Introduction
Tackling race discrimination has not always been on the agenda of the British trade union
movement. Whilst by the late 1970s trade unions had moved to a position of being
opposed to race discrimination in the workplace, much of the trade union movement
still viewed immigrants as competition for domestic workers and there was no indication
that trade unions were prepared to take any action to address the specific needs of black
workers. A series of industrial disputes in manufacturing, textiles, engineering and
transport during the late 1960s and 1970s brought black workers into conflict not only
with their employers but also with unions and led to a struggle by black workers for
greater recognition by their unions. This struggle led to self-organised groups of black
workers organising to get unions to accommodate them within trade union structures, to
get trade unions to collectively bargain and to campaign in a more effective way against
racism in the workplace. By the mid-1980s the establishment of black self-organised
structures in some of the larger trade unions gave anti-racism a much higher profile in
the trade union movement.
The Race, Immigration and Trade Unions (RITU) research project was a major study
of racism at work, which focused on the role of trade unions in combating discrimination
and xenophobia, in encouraging participation and in securing social inclusion and
citizenship. The project, which involved trade unionists, researched trade union policies
and practical responses in comparable sectors in five countries: Belgium, France, Italy, the
UK and Bulgaria. It examined the processes by which unions succeeded or failed in the
inclusion of the voice and interests of black and minority ethnic workers, and sought to
ascertain the effectiveness of their impact on reducing discrimination in labour market
policies and practices.
A particular outcome from the project in the UK was the publication of a pamphlet,
‘Working Against Racism’, which draws on the research undertaken in Britain. The
pamphlet was developed on the basis that the participation of black workers in trade
unions is key to ensuring that there is a reference point to construct a bargaining agenda,
that collective bargaining on race equality needs to be part of unions’ mainstream
negotiating agendas and must be directed towards ensuring that the systemic barriers and
disadvantages that black workers experience in the workplace are dismantled. It draws its
recommendations from ‘best practice’ and seeks to find ways of reinvigorating the anti-
racist struggle in the trade union movement and the workplace, to ensure that black trade
unionists play a part in all decision-making levels of the trade union movement and that
trade unions elect/appoint many more black people to leading positions and ensure that
race equality and anti-discrimination is at the heart of collective bargaining. An extract
from ‘Working Against Racism’ is reproduced here that gives specific guidance to trade
unions on establishing good practice in relation to combating racism.
The death of Stephen Lawrence and the subsequent report by Sir William MacPherson
was a catalyst for the UK trade union movement to examine its response to racism. It
accepted that it would have to take action to tackle institutional racism in the trade union
movement and established its own ‘Stephen Lawrence Task Group’, which resulted in the
Trades Union Congress (TUC) changing its rules by placing a requirement on unions
to promote equality. An equality audit was also established to monitor the progress of
trade unions in dealing with discrimination internally and with employers. The TUC has
developed a new Black Workers’ and Trade Union Charter which focuses on the measures
trade unions need to take to more effectively tackle problems of racial discrimination in
the workplace.
Whilst these changes have helped to focus trade unions on taking measures to
improve the representation of black trade unionists in their lay and full-time structures
and to examine how race is dealt with as a collective bargaining issue, the progress that
has been made is only the start of the change that the trade union movement will have
to make to adequately represent the interest of black workers in the UK labour market.
T h e R o l e o f Tr a d e U n i o n s i n F i g h t i n g R a c i a l D i s c r i m i n a t i o n 131
Extract from Davis, M., McKenzie, R. and Sullivan, W., (2006)

Working Against Racism: The Role of Trade Unions in Britain,
London: TUC and Working Lives Research Institute
11 Migration and Work:
chapter
Discrimination
Obligatory?
NICK CLARK
Introduction
In 2006, Sutton and Merton Hospital Trust dismissed a care assistant who was originally
from Malawi. She had not committed any disciplinary offence, or failed in her duties. She
had come to Britain with her husband, who had a work permit to work at the hospital,
and as a dependent family member, she too was entitled to work. But when her husband
died, that entitlement ceased, and when the UK Borders and Immigration Agency refused
her appeal to stay, the National Health Service (NHS) Trust dismissed her (Sutton Guardian
2010). This could not have happened if she had been British, or a citizen of any other EU
state. Effectively she was dismissed because of her nationality.
Such obvious injustice is not only permitted by UK law, it is required. Had the Trust
not acted in this manner, they could have been fined. If the events had taken place in
2010, there could potentially have been a civil penalty fine of up to £10,000 or in the event
that the employer was thought to have deliberately employed an ‘illegal migrant worker’,
up to two years jail and/or an unlimited fine (Immigration, Asylum and Nationality Act
2006).
Sometimes, tragedy and injustice can inspire outrage and sympathy for migrant
workers, as was the case with the 21 Chinese migrant workers who drowned while
collecting cockles in Morecambe Bay in February 2004. Quite rightly, this contributed
to a change of heart in the government over the need to regulate temporary labour
suppliers in the food and agriculture industry. They moved to support a private member’s
Bill setting up the Gangmasters Licensing Authority, arguably the UK’s most effective
enforcement body of basic workplace rights.
But five years later, almost to the day, an unofficial dispute over job allocation at a
the Lyndsey oil refinery construction site featured demands for preference to be given
to British workers, infamously echoing Prime Minister Gordon Brown’s phrase (used
at the Trades Union Congress (TUC) in 2007) ‘British jobs for British workers’. While
the workers’ aims and slogans quickly changed, as the focus became the defence of the
national agreement for engineering construction, others took up the more reactionary
positions abandoned by the workers. Labour MP Frank Field and Tory MP Nicholas
Soames set up a pressure group called Balanced Migration, who included amongst their
demands that: ‘the Government must move to declare illegal any contract awarded to
foreign companies operating in this country that do not first offer all their jobs to British
workers’ (Field 2009 – my emphasis).
There is no sign that such a move will be adopted. It would, after all, be in breach of
EU trade rules, and if operated in the other direction, would certainly deprive UK-based
contractors of significant business across Europe. However, over recent years, restrictions
applying to those (including from the newer EU member states) wishing to come to Britain
to work have been significantly tightened up. There has been an ever-fiercer enforcement
regime, and regulations of great complexity have been introduced. So complex are they,
indeed that the Attorney General herself fell foul of them, incurring a £5,000 fine for
failing to make copies of documents shown to her by a worker hired to carry out her
domestic work (BBC 2009).
Today, there can scarcely be a workplace of significant size that does not include some
workers born elsewhere than the UK. The requirements placed by the state on employers
not to employ those non-citizens who do not have permission to work in UK appear to
contradict the legal (and moral) obligations not to discriminate on grounds of ethnic
origin or nationality.
This chapter attempts to outline some of the key features of migration to Britain,
the relationship of immigration controls to employment, rights and discrimination, and
to give some examples of good practice. It is not, however, a guide to immigration or
employment law. Rather it sets out some of the key issues that surround these contradictory
requirements.
Migration and Work

Throughout the 1960s and 1970s, statistics on immigration showed that more people
were leaving the UK than entering it. This changed a little during the 1980s, when the
numbers leaving slowed down, so that the numbers entering and leaving tended to hover
around each other. But during the mid-1990s, immigration began to accelerate. This took
a number of forms – the number of work permits rose, claims for asylum increased in line
with greater instability in key regions, international students were deliberately attracted
to British universities and colleges, and the number of people joining families already
resident also went up
Then in May 2004, the EU was enlarged by the inclusion of ten new members, the so-
called ‘A8’ from central and Eastern Europe,1 plus Malta and Cyprus. This marked a fresh
acceleration in the number of people coming to Britain to work, and in the five years
between 2003 and 2008, the proportion of workers not born in the UK rose from 9 per
cent to almost 13 per cent, before falling back a little in 2009 (see Figure 11.1).
1 Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.
M i g r a t i o n a n d W o r k : D i s c r i m i n a t i o n O b l i g a t o r y ? 141
13
12
11
10
5
2003 2004 2005 2006 2007 2008 2009
Figure 11.1 Percentage of UK employees not born in UK

Source: Labour Force Survey.
It is worth noting that there is always a steady flow of UK-born people returning
after significant absences included in these statistics. Another factor has been a growing
variety of countries of origin amongst the migrant workforce (although a few – Poland,
Ireland, India, Pakistan, Germany and Bangladesh – account for over 35 per cent of the
non-UK-born population).
Country of birth does not necessarily tell us much about citizenship. In 2008 (1st
Quarter), of 3.7 million working age residents who were not born in UK, 1.4 million, or
38 per cent were UK citizens, according to the government’s Labour Force Survey. This
will be because they were born to British parents, had British citizenship dating back to
the time when Commonwealth citizens were British, or have taken up British citizenship.
Migrant workers can be found in all industries, but in certain industries, they are
particularly significant. The pattern of employment differs according to the origin of the
migrants (which in turn is likely to be related to how recently they arrived), as the table
below, which separates the newer A8 migrants from other non-UK-born workers, shows.
A8 workers are significantly more likely to be working in manufacturing, construction
or transport than either UK-born or other migrant workers, and much less likely to work
in the public sector. Migrant workers from elsewhere, however, are more likely than the
other categories to be working in business services.
Table 11.1 Percent of workforce in main industrial sectors by country of birth
% UK-born % A8 born % other non-UK-

Industrial Sector
workers workers born workers
Manufacturing 13 27 10
Construction 9 12 4
Distribution, hotels, catering 19 22 20
Transport & Communication 7 11 8
Business services 16 11 21
Public admin, education, health 28 9 29
Source: Labour Force Survey, from Clancy (2009).
In terms of occupation, the A8 workers tend to be concentrated in two groups –

process plant and machinery operatives (21 per cent), and elementary occupations (36
per cent), while other migrants are found distributed across the occupations in more or
less the same way as UK-born workers. However, this overall picture can hide certain
tendencies – with workers from the Philippines, for example, tending to be found in
health, care and domestic work, for example, or A8-born workers who arrived before
2004 being more likely to be working in managerial and professional jobs than those who
arrived afterwards.
A number of reports set out these features in more detail: the Institute for Public
Policy research published a useful summary in 2007 (Sriskandarajah et al. 2007), while
up-to-date figures are published on a quarterly basis by the Home Office (see ‘Further
Information’ below), although these do not include figures for those not subject to
immigration control, such as citizens of the European Economic Area (apart from the
Worker Registration Scheme – see below).
Much of the debate about immigration, particularly when related to work, tends to
examine only economic factors. Although this chapter is largely concerned with migrants
as workers, it is important to remember that not all who are working here came here
primarily to find work. They may have come as refugees, to join members of their family,
as students, or accompanying a spouse who entered to work. They may need to work, but
they are not only units of production.
Immigration Law and Employment

Although there is supposedly a right of free movement within the EU for EU citizens
(or rather for European Economic Association (EEA) citizens – which includes Norway,
Iceland and Lichtenstein, and to all intents and purposes Switzerland), this freedom is
restricted when it comes to the right to work, for citizens of the central and eastern
Member States who joined in May 2004 (the ‘A8’) and January 2007 (the ‘A2’).2
For the A8, for the first 12 months of their employment, they must register with the
UK Border Agency via the Workers Registration Scheme (WRS), for a fee of £90. Until
they have been working and registered for 12 months, they have no recourse to public
2 Bulgaria and Romania.

funds – and cannot therefore claim Job Seekers’ Allowance (JSA) or housing assistance
for example. This scheme must come to an end by the end of April 2011. A2 workers, at
present, can only enter to work as self-employed, domestic workers, under the Seasonal
Agricultural Workers and Sector Based Scheme (SAWS or SBS) or under the new Points-
Based System (see below). Other EEA citizens have the right to work in UK. Some may
be ‘posted’ to work in UK, that is to say they are normally employed in another Member
State, but may be working temporarily in UK, for their normal employer, to fulfil a
contract, see issues at work below.
For so-called third country nationals (that is to say citizens of non-EEA countries), there
are substantial restrictions on the right to work in the UK. The rules change frequently,
and those needing specific guidance on a particular case will need to seek advice from
a registered immigration adviser (the Office of the Immigration Services Commissioner
maintains a list of such advisers – see ‘Further Information’). The Immigration Advisory
Service (IAS) is a charity which may be able to provide free assistance to those who qualify
for legal aid, but also offers a basic fee-paying telephone advisory service – see ‘Further
Information’).
However, in summary the situation is covered by the Points-Based System (PBS),
which divides potential workers into a number of Tiers. Up-to-date and detailed
information on the PBS can be found on the UK Border Agency (UKBA) website – see
‘Further Information’.
The UKBA summarises the tiers thus:
Tier 1 for highly skilled individuals, who can contribute to growth and productivity.
Tier 2 for skilled workers with a job offer, to fill gaps in the United Kingdom workforce.
Tier 3 for limited numbers of low-skilled workers needed to fill temporary labour shortages
Tier 4 for students.
Tier 5 for temporary workers and young people covered by the Youth Mobility Scheme, who
are allowed to work in the United Kingdom for a limited time to satisfy primarily non-
economic objectives.
UKBA web site [accessed 21 April 2010]
Tier 1 entrants will not for the most part be employees, although it also includes
certain new graduates who have completed their studies in UK and been given permission
to seek work here, and those previously admitted under the now closed Highly Skilled
Migrant Programme.
Tier 2 has replaced the Work Permit system for people with particular skills, and
includes intra-company transfers. These workers require a sponsor who will be employing
them, and their permission to enter usually requires that they continue in that job while
in the UK. Workers cannot enter for more that 36 months, and the permission may be
for less time. They may be able to apply to extend their period of stay. The Migration
Advisory Committee, who makes recommendations on this to the government, monitors
skills thought to be in short supply.
Tier 3 is not currently in use.
Students admitted under tier 4 can work for up to 20 hours per week during term
time, and full time during vacations. However this has now been reduced to ten hours
per week for students following a course below degree level, except those who are on a
foundation degree course.
Tier 5 includes temporary entry for sportspeople, performers and creative artists;
cultural exchanges, domestic workers (as part of a household) as well as the Youth Mobility
Scheme (previously known as Working Holidaymakers Scheme).
The 2006 Immigration Asylum and Nationality Act considerably toughened the
penalties for employers found to be breaking the rules by employing someone in breach of
immigration legislation. For those who have failed to follow the documentation procedures
(that is to say to ask for documentation which demonstrates that the worker may work
in UK, and to make and keep a copy of the relevant sections of that documentation) and
employed someone not entitled to do the work they are engaged in, then the employer
can be subject to a civil penalty (of up to £10,000 per worker). Those judged to have
knowingly employed a migrant who does not have the requisite permission to work could
also be subject to criminal proceedings and face a maximum prison sentence of two years
(or an unlimited fine).
Enforcement activity by the UKBA has been stepped up, and their website now
carries lists of those who have been subject to the civil penalty fines. However, a quick
study of the lists will show a preponderance of catering businesses apparently run by
ethnic minorities. Larger employers seem to be able to reach an accommodation with the
authorities. Cleaning industry trade body, the Cleaning and Support Services Association
(CSSA) points out in its guidance to members if they either report suspicions to the UKBA
before an inspection, or cooperates with any UKBA investigation (by making employee
records or premises available), then any penalty may be reduced, or take the form of a
warning letter (CSSA, no date).
The UKBA website also includes details of the documents which employers require in
order to employ someone without risking fine or prosecution. Some employers may feel
that it is too risky to employ some groups of workers, where there might be some doubt
about appropriate documents. In the case of refugees, who often do not have passports,
the relevant documents are likely to be unfamiliar. The Refugee Council has therefore
issued detailed guidance on the kinds of documents that refugees (who are entitled to
seek work) may have, see ‘Further Information’.
These intensified controls have largely been supported by employers’ organisations
(such as the Confederation of British Industry), although they have expressed concerns
that some employers may not spot false documents, and therefore run the risk of fine or
prosecution. The controls have been justified as reducing unfair competition between
businesses, preventing those without permission to work taking jobs from those who
have (such as UK citizens and those legally resident), and preventing downward pressure
on pay and conditions. However, no evidence has been presented to demonstrate any of
these as a consequence of the enforcement actions. In fact, it has been suggested by the
Migrant Rights Network (MRN) that enforcement action may be making some workers
more vulnerable (MRN 2008).
Discrimination and Nationality

Legislators are not unaware of the contradiction between employers’ obligation not
to discriminate in employment practices, and their requirement under immigration
legislation to avoid employing those without permission to work – who will essentially
all be foreigners.
A Code of Practice for employers was therefore published by the Border and
Immigration Agency (the precursor to the UKBA) on avoiding unlawful discrimination
(see ‘Further Information’). In summary, this points out that no steps should be taken in
recruitment and selection that would discourage applicants because of their appearance
or accent. Furthermore, all applicants, irrespective of nationality, should be asked to
provide the necessary documents. However, some categories of worker (that is, mostly
those who are subject to immigration control) need to have their documents re-checked
at regular (that is, annual) intervals. It is impossible to do this without treating this group
of workers differently, unless all workers are asked to represent documents every year (this
is not suggested by the Code of Practice).
But document checks are not the only form of discrimination that migrants may face.
To give a few examples:
• Non-citizens right across Europe tend to have lower earnings than citizens – by up to
40 per cent on arrival. The gap diminishes with length of stay, but is only eliminated,
on average after 18 years (Adsera and Chiswick 2007).
• A study of care workers in the UK found migrant workers being less favourably treated
than their UK-born counterparts in a number of areas including longer hours, less
favourable shifts, no minimum guarantees of work, unpaid overtime, distribution of
unpopular tasks and access to training and promotion (Cangiano et al. 2009).
• An earlier study into the Northern Ireland hospitality industry found that employers
tended to assume that migrants could only perform lower skilled jobs, so recruited
them into posts in kitchens and housekeeping (Devine et al. 2007). The authors
suggested that the lack of training and promotion might be related to employers’
view of international workers as being temporary in some way.
• There is evidence of high numbers of particularly Polish workers not receiving the
National Minimum Wage, and feeling obliged to work ‘non-standard’ and excessively
long hours (Jayaweera and Anderson 2008).
Rights at Work
Most rights at work should apply to all workers irrespective of their nationality. However,
one of the problems faced by migrants is in enforcing them. This can be because some
rights depend on service qualifications which newcomers do not meet, because they do
not know their rights (and do not have the English skills to find them out), or because
they have been misled about their employment status. It also arises because enforcing
rights for the most part falls to the individual, who has to take a case to an Employment
Tribunal – a process which can take six to nine months (or in some cases even longer).
This is impossibly long for those who have no recourse to public funds (most non EEA
migrants and those from both A8 and A2 countries), and so cannot claim any benefits if
they have lost their job. In other cases, the workers’ presence in the UK may be conditional
on them being employed in a specific job. Losing that job may lead to them having to
leave the country or risk breaching immigration rules, thus rendering enforcement of
rights through the tribunal system all but impossible.
But there is a further problem for some workers. In employment law it has been held
that a contract ‘tainted with illegality’ may be unenforceable. That is to say, if there is
some unlawful element to the contract, such as an agreement to take pay in cash to avoid
tax or National Insurance, then the other elements of the contract cannot be enforced.
A similar argument has been applied to migrant workers who are working without legal
permission.
This could be held to mean that if an overseas student were to agree to work for more
than the permitted 20 hours per week, they would have forgone all their employment
rights. However, a recent case suggests that unscrupulous employers would be unwise
to rely on this (San Ling Chinese Medical Centre v Lian Wei Ji, UKEAT/0370/09/ZT). In
this case, the employer attempted to argue that because the worker had accepted
wages lower than had been quoted to the UKBA, then her work permit was no longer
valid, her employment unlawful and she was therefore not entitled to unfair dismissal
compensation. The Employment Appeal Tribunal rejected that, noting that the worker
had felt that she had no choice but to accept the lower wage, and furthermore that this
in itself did not necessarily render the work permit (and therefore the contract) invalid.
Though this is a welcome judgment, the odds are still weighted against workers, and
some commentators and unions maintain that workers’ rights should be separate from
immigration law (see for example Ryan 2005).
Posted workers, that is those whose normal residence and employer are based in a
member state, but are temporarily performing a contract in the UK, will have contracts
based on the law and practice of their home country, but still be subject to at least the
minimum legal provisions in the UK so far as minimum wage, working hours and holidays
and anti-discrimination regulations are concerned.
UK-based workers may also be posted to other Member States on this basis, for example
in tourism or construction. Some guidance is available from the Business Link website
(see ‘Further Information’). However in many other EU states, the protections provided
will include the pay, hours and holidays set down in generally applicable collective
agreements at industry level. At present the UK has none, although the terms set down in
the Agricultural Wages Board (such as minimum rates for particular skills, and overtime
rates) will apply to any workers posted into agricultural work.
The Institute of Employment Rights published a book on employment rights and
migration in 2005 (Ryan 2005), and it remains very useful, although the restrictions on
migrant workers have changed significantly since then.
Issues and Good Practice at Work

A concern that some express regarding migrant labour is that it is damaging the economic
interests of ‘indigenous’ workers. In fact there is very little evidence to support this,
certainly at the macro level. Studies carried out by the Department for Work and Pensions
(DWP) and Home Office have shown no effect on jobs and wages (see for example Lemos
and Portes 2008) while a study for the Low Pay Commission suggested that UK-born
workers’ pay might increase slightly as a result of increased migration (Dustmann et

al. 2007). It has been suggested that migrants have improved overall output as well as
increased markets, and in expanding the supply of employed labour, increased better-
paid job opportunities (for example, in supervision and sales) which are then taken up
by UK-born workers and longer-term residents. Furthermore, immigration took off at a
time that employment was increasing, suggesting that ‘British workers’ were not in fact
being denied ‘British jobs’ (although some have argued that the majority of ‘new jobs’
were going to migrants – which is very hard to demonstrate one way or another, see for
example Nelson 2008).
However, the evidence of recent arrivals being paid less than the rest of the workforce,
and for migrants not being paid what they are entitled to suggest that there are problems,
at least for the migrants themselves (Jayaweera and Anderson 2008).
It may seem obvious that all workers in a workplace should have the same entitlements
to pay and employment conditions, irrespective of their nationality or immigration status.
However, the examples in the section on discrimination above show that this is not always
the case. The existence of collective agreements and equality policies, if applied, should
help to ensure non-discriminatory practice. In a number of areas, though, particular
attention needs to be paid to avoiding unintended discriminatory consequences. These
are considered below.
Recruitment
Channels chosen for recruitment can have a potentially discriminatory effect. For
example, recruitment through the ‘temp to perm’ route, when the agencies providing
temporary staff are largely composed of particular groups of migrants recruited through
word of mouth, will mean effective exclusion of other migrant communities and UK-
born workers.
Placing advertisements where they might prevent particular groups from seeing
them or applying (for example, UK workers if vacancies are only advertised elsewhere
in EU) may be discriminatory, or at least result in separation of different groups within
a workplace. Working with Job Centres can ensure both local recruitment and, through
EURES (the EU’s joint employment network), access to the public employment services
of the rest of the EEA (see ‘Further Information’).
Similarly, language requirements should be considered carefully .The Business in the
Community Migrant Worker Integration Group (MWIG 2008) cited the example of labour
provider Horizon European Recruitment running English screening for potential recruits
online, and the setting of a benchmark of Level 2. If this proved not to be necessary
for the work in question, this could discriminate against non-English speakers. On the
positive side, a continuing programme of online learning is also provided. Guidance
from the Equality and Human Rights Commission (EHRC) suggests that any language
requirements should be reasonable in terms of the requirements of the job itself – what
might be required for customer facing roles may not be for, say, warehouse functions.
The Equality Commission for Northern Ireland (2006) made similar points about
recruitment in general, saying: ‘employers should guard against having procedures
and criteria that are more stringent than they actually need to be, particularly if this
places migrant workers at a substantial disadvantage compared to other persons’. They
give examples relating to incomplete application forms, academic qualifications and
references, where normal requirements might discriminate unfairly if they are not really
justifiable.
However, an EHRC study in the meat and poultry industry found that some UK-born
workers felt that agencies were selecting entirely from particular migrant communities
(EHRC 2010), and the suspicion of similar practices by some contractors in the engineering
construction industry was one of the factors behind the spate of ‘wildcat’ stoppages at
the Lyndsey oil refinery site and elsewhere in early 2009. Skills for Care NW, in their
Good Practice Guide (Skills for Care North West 2008), addresses these issues, suggesting
that up-skilling locally available labour should feature in recruitment strategies. However,
where recruitment from abroad is being considered, Skills for Care suggest a range of
actions to be taken by employers, including:
• Explaining to the workforce why international staff are being recruited, including
reassurance on protection of existing pay and conditions and involvement of existing
staff in induction; and
• providing written contracts and summaries of terms and conditions – which should
be the same as those of existing staff – and ensuring that new staff have understood
them.
Segregation
The EHRC report (2010) found examples of manufacturers grouping workers together on
production lines by nationality, on the basis that this improved communication between
workers. I have heard reports of similar segregation onto particular shifts. As the EHRC
reports, in the event that such variety of treatment based on nationality or language
alone led to differential outcomes (such as earnings based on bonus, shift or overtime
payments or more arduous work, for example), would be discriminatory. I also witnessed
a food manufacturer announcing publicly, apparently with pride, that after conducting
experiments with his workforce, the most productive permutation on a production line
was one in which none of the workers could communicate with each other, by virtue of
them speaking different languages. His conclusion was that they then would ‘waste’ no
time talking to one another. Quite apart from the potential implications for safety, this is
an extreme example (and one hopes an isolated one) of the attitude that sees workers in
general and migrants in particular solely in terms of their capacity to generate profit for
their employer.
Again the use of agencies – often disproportionately composed of migrants – may
lead to segregation if the work on which agency staff are deployed is markedly different
from the rest of the workforce.
Language
One of the notable shifts over recent years has been the increase in migration by workers
who may not speak much (or any) English. Not surprisingly, a number of studies have
shown that a lack of knowledge of English is associated with lower wages and greater job
insecurity (Anderson et al. 2006; Schneider and Holman 2009).
Failing to take into account the problems workers may have with understanding key
documents may lead to inadvertent discrimination, but unions and advisers have also
encountered examples of workers having been recruited with a document purporting to

be their contract in their own language, then offered a version in English to sign – which
may differ significantly from the original.
Employment rights information has been provided in a range of languages by the
TUC and a number of trade unions, and this practice has now been picked up by the
government, who have made (very basic) guides to the minimum wage and other rights
available online in a variety of languages (see ‘Further Information’).
According to one study, employers (particularly small ones) provide little English
language training, which is likely to exacerbate communication problems and may
contribute to lack of integration between English and non-English speakers (Morgan and
Finniear 2009). However, there is good practice now in evidence too, with employers,
unions and other bodies organising English for Speakers of Other Languages (ESOL)
courses, and campaigning for improved access to such training (see for example Evans et
al. 2006 regarding the South West). Unfortunately, ESOL provision in Further Education
colleges is under great pressure as a result of spending cuts at the time of writing.
Some employers attempt to prevent workers from speaking to each other in their
mother tongues. Since this is clearly a rule that would not be enforced against English-
speaking workers, it is discriminatory unless it can be objectively justified in terms of job
requirements – for example where the job is customer facing.
Qualifications
The study by Devine et al. (2007) pointed out how employer preconceptions about
international workers could result in their skills being under used. Another study of
Eastern European migrants in Nottingham found that while 35 per cent had held posts
in the three highest skill levels in their home country, only 12 per cent had such posts in
the UK. Overall, 59 per cent had experienced a decline in their occupational level, and
only 8 per cent an increase (Scullion et al. 2009).
While some of this decline may relate to lack of English skills, at least some of it will also
be due to non-recognition of qualifications. The Northern Ireland Equality Commission
suggest that employers do not simply specify qualifications that could only be obtained
in the UK, and are able to assess comparative qualifications from other countries. Advice
and assistance is available for such purposes from the National Recognition Information
Centre for the United Kingdom (UK NARIC) – see ‘Further Information’.
Dismissal/Redundancy
While it may seem obvious that selecting staff for redundancy on the basis of their
nationality would automatically be unfair on the grounds of discrimination, this could be
one of the effects of the current Points-Based System. Consider the circumstances when
there may be job cuts, including some jobs held by non-EEA nationals who have entered
under the PBS perhaps as intra-company transfers, and offering suitable alternative
employment could mitigate some redundancies. Under current rules, although it might
be possible for the PBS staff to be given permission to change their jobs, the employer is,
on the face of it at least, obliged to offer the alternative jobs first to suitably qualified EU
citizens.
All workers should understand grievance and disciplinary procedures, so consideration

should be given to translating them. Those who do not speak English should be able to
have an interpreter (who may be a colleague) present at formal meetings, in addition to
their representative.
Ensuring that any existing consultative structures (including trade unions) permit the
involvement of all nationalities is vital in the event that there are collective redundancies
under consideration. Most trade unions have policies which seek to organise migrants,
and there are a number of examples of them taking on multi-lingual organisers and
actively seeking representatives from migrant groups.
Again, if temporary or agency workers are recruited from different communities than
the permanent workforce, the result could be differential treatment when dismissals are
taking place. Treating agency workers, as far as possible, equally may help to reduce this
problem. It is of significance that in the EHRC study of the meat and poultry industry,
Bernard Mathews was seen as an attractive option for both temporary and permanent
staff, because they treated both groups equally in terms of pay and conditions. This puts
the company ahead of the implementation of the Temporary Agency Workers Directive,
which will entitle agency workers to equal treatment in key areas (such as pay and hours
of work) to equivalent permanent workers – but only after they have been working for
three months in the same job. A contributing factor to this policy is the company’s
strong relationship with trade unions, who have taken up migrants’ concerns over recent
years.
Under current plans, the legislation applying to all employers will come into force in
UK on 1 October 2011.
Health and Safety
According to work carried out on behalf of the Health and Safety Executive, migrants are
more likely than other workers to be employed in sectors or occupations where there are
already health and safety concerns. Furthermore, their status as new workers may put
them at risk (McKay et al. 2006). Although the study was not based on a representative
sample, the results suggested that there might be a higher level of accidents than among
UK-born workers. They also found a reluctance to report accidents, for fear of dismissal,
or (in the case of undocumented migrants) deportation.
The Trades Union Congress (TUC), in response to this report, published a guide on
migrant workers’ safety aimed at safety representatives (TUC 2007). It sets out a number
of recommendations – including that union safety representatives are likely to be more
successful in protecting the safety of migrant workers when they come from the same
communities. Also recommended is that risk assessments should take into account
the presence of migrant workers – particularly considering previous work experience,
perceptions of risk, language and literary skills, and training methods and materials. In
this last category, the need to report accidents should be emphasised – and migrants’ (and
other workers’) concerns about possible consequences of doing so addressed.
Conclusion
It is not possible to cover all of the issues relating to migrant workers in one chapter.
However, I have identified a number of sources that provide more detail, including online
resources, where the constantly changing boundaries of immigration control can be
monitored.
It is clear that migrant workers, particularly those who have recently arrived,
or are working for short periods, can suffer discrimination and disadvantage in the
workplace. This is exacerbated by language difficulties for non-English speakers and the
problems caused by the restrictions placed on their employment by immigration law –
particularly for those from outside of the EEA. These restrictions may seriously hinder the
capacity of migrant workers to seek redress through the (in any case rather feeble) normal
channels, and may require employers to act in a discriminatory way in order to stay in
compliance with immigration laws.
There is also a concern – even though it is largely unsupported by any evidence – that
migration is damaging the interests of workers already here, particularly the UK-born.
The concentration of recent migrants in certain areas of the economy (temporary work
agencies and construction, for example), where they are likely to receive poorer pay and
conditions than permanent and directly employed workers, exacerbates the perception
that they may be dragging down pay.
A good employer can do much to reduce this perception, in particular by minimising
their use of temporary agency staff and so-called self employed contractors; by working
against de facto segregation between workers of differing national origins; by paying
attention to issues such as language requirements, training and qualifications and staff
representation.
However, there is also a need for changes in regulation and enforcement. In Ireland
the recently-established National Employment Rights Authority (NERA) is able to inspect
and enforce not only national minimum standards, but also some national agreements in
areas where migrants may form a significant part of the workforce – such as agriculture,
construction and contract cleaning. Much of the detailed information on the NERA
website is available in 14 languages (see ‘Further Information’). They are also empowered
to take action themselves, rather than rely on individuals to take up cases. This can help
prevent compliant employers being undercut by the less scrupulous.
Separating employment rights from immigration status so that all workers enjoyed
the same rights at work would also assist in reducing the ease with which some migrant
workers can be intimidated into accepting sub-standard terms and conditions. This would
mean that the right, for example, to receive pay for work done and to be paid the National
Minimum Wage, and should not depend on the worker having been granted appropriate
permission to do the work in question. If a migrant worker could be confident that they
would not be at risk of deportation if they left the employ of an abusive employer, they
would have a better chance of standing up to the abusers.
This would help migrant workers, those who support them, and the employers who do
not stoop to abusive practices. And in the process, current anti-migrant prejudices can be
undercut. Newsnight journalist Paul Mason frequently encountered xenophobic attitudes
during a recent investigation into the UK economy, and he commended the ‘people
trying to heal the fractiousness and mistrust of migrant workers through the ingenious
means of getting them paid decent wages so the jobs and livelihoods of the existing
workforce cannot be undercut’ (Paul Mason’s blog 29 March 2010). At present, the UK’s
immigration regulations effectively undermine the protections anti-discrimination laws
should provide to migrants, as well as employment rights which should apply to all.
Further Information
Business Link
Guidance on posted workers is available at:

http://www.businesslink.gov.uk/bdotg/action/detail?r.lc=en&type=RESOURCES&itemId
=1073791870&r.s=sl
EURES
The EU’s joint employment services portal: http://ec.europa.eu/eures/home.jsp?lang=en
Home Office
Quarterly immigration and asylum statistics are available from: http://www.homeoffice.

gov.uk/rds/immigration-asylum-stats.html
Immigration Advisory Service (IAS)
A charity that may be able to provide free assistance to those who qualify for legal aid and
offers a basic fee-paying telephone advisory service: http://www.iasuk.org
National Employment Rights Authority
Details of the new Irish body for enforcing workers’ rights can be found at: http://www.
employmentrights.ie/en/
National Recognition Information Centre
Information on comparability between UK and non-UK qualifications can be found at:

http://naric.org.uk
Office of the Immigration Services Commissioner
Maintains a list of registered immigration advisers: http://www.oisc.gov.uk
Refugee Council
Publishes a guide on refugees’ documentation relating to the right to work, entitled

Employing Refugees, see: http://www.refugeecouncil.org.uk/practice/employersguides
TUC
Information on workers’ rights in a variety of languages can be found at: http://www.tuc.

org.uk/international/index.cfm?mins=288
The TUC report on migrant workers’ health & safety is at http://www.tuc.org.uk/
extras/safetymw.pdf
UK Borders Agency
For up-to-date and detailed information on the Points-Based System see http://www.
ukba.homeoffice.gov.uk/workingintheuk/
For details of the Code of Practice on avoiding illegal discrimination see http://www.
ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventing
illegalworking/
UK Government
Information on the National Minimum Wage and other employment rights, in a

variety of languages, is at: http://www.direct.gov.uk/en/Employment/Understanding
yourworkstatus/Migrantworkers/DG_180915
References
Acas (2006) ‘Back to basics. Acas’ experience of equality and diversity in the workplace’, Acas Policy
Discussion Papers, No. 5 November.
Adsera, A. and Chiswick, B. (2007) ‘Are there gender and country of origin differences in immigrant
labor market outcomes across European destinations?’ Journal of Population Economics, 20, 495–526.
Anderson, B., Ruhs, M., Rogaly, B. and Spencer, S. (2006) Fair Enough? Central and East European Migrants
in Low-Wage Employment in the UK, Oxford: Centre on Migration, Policy and Society (COMPAS),
May.
BBC (2009) ‘Pressure on law chief after fine’, BBC News Channel, 22 September , http://news.bbc.
co.uk/1/hi/8268101.stm.
Cangiano, A., Shutes, I., Spencer, S. and Lesson, G. (2009) Migrant Care Workers in Ageing Societies:
Research Findings in the United Kingdom, Oxford: COMPAS.
CSSA (no date), ‘Briefing guidelines on the management of non-UK nationals’, London: Cleaning
and Support Services Association.
Clancy, G. (2009) ‘Employment of Foreign Workers in the United Kingdom (1997–2008)’,
Office for National Statistics (ONS) at http://www.statistics.gov.uk/articles/nojournal/
EmploymentofForeignWorkersintheUKfinal.pdf.
Devine, F., Baum, T., Hearns, N. and Devine, A. (2007) ‘Managing cultural diversity: opportunities
and challenges for Northern Ireland hoteliers’, International Journal of Contemporary Hospitality
Management, 19:2, 120–132.
Dustmann, C., Frattini, T. and Preston, I. (2007) A Study of Migrant Workers and the National Minimum
Wage and Enforcement Issues that Arise, London: Low Pay Commission, March 2007.
Ecumenical Council for Corporate Responsibility (2009) Vulnerable Migrant Workers: the Responsibility
of Business, Oxford: ECCR.
Equality Commission for Northern Ireland (2006) Employing Migrant Workers: A Good Practice Guide
for Employers Promoting Equality of Opportunity, Belfast: ECNI.
Equality and Human Rights Commission (2010) Inquiry into Recruitment and Employment in the Meat
and Poultry Processing Sector, Manchester: EHRC.
Evans, C., Pye, J. and Smith, L. (2006) Migrant Workers: The Challenges for the South West, Learning
Theme Report for Skills and Learning Intelligence Module, SW Observatory.
Field, F. (2009) ‘You promised British jobs for British workers, Gordon – now you must make it
happen’, Daily Mail, 1 February.
Jayaweera, H. and Anderson, B. (2008) Migrant Workers and Vulnerable Employment: a Review of
Existing Data, Report for TUC Commission on Vulnerable Employment, Oxford: COMPAS.
Lemos, S., and Portes, J. (2008) The Impact of Migration from the new European Union Member States on
Native Workers, Department for Work and Pensions Working Paper 52, June.
McKay, S., Craw, M. and Chopra, D. (2006) Migrant Workers in England and Wales, an Assessment of
Migrant Worker Health and Safety Risks, Sudbury: Health and Safety Executive.
MRN (2008)‘Papers Please – The Impact of the Civil Penalty Regime on the Employment Rights of Migrants
in the UK, London: Migrant Rights Network.
Migrant Worker Integration Group (2008) ‘Position Paper’, London: Business in the Community, at
http://www.bitc.org.uk.
Migrant Workers North West (2007) Minimum Standards Charter. A Voluntary Code of Practice on
Employing Migrant and European Workers, Salford Quays, Manchester: Migrant Workers North West.
Morgan, A. and Finniear, J. (2009) ‘Migrant workers and the changing psychological contract’,
Journal of European Industrial Training, 33:4, 305–322.
Nelson, F. (2008) ‘Brown has exploited immigration to hide from deep problems’, The Spectator, 13
September.
Pemberton, S. (2008) ‘Supporting economic migrants in the north west of England: implications for
economic and social policy’, Public Policy and Administration, 23:1, 80–99.
Refugee Council (2009) Employing Refugees. A Guide for Employers: Documents Providing Evidence of
Entitlement to Work, London: Refugee Council.
Ryan, B. (ed.) (2005) Labour Migration and Employment Rights, London: Institute of Employment Rights.
Schneider, C., and Holman, D. (2009) Longitudinal Study of Migrant Workers in the East of England,
Cambridge: Anglia Ruskin University, for East of England Development Agency, January.
Scullion, L., Morris, G. and Steele, A. (2009) A Study of A8 and A2 Migrants in Nottingham, Salford
Housing and Urban Studies Unit, University of Salford.
Skills for Care North West (2008) Good Practice Guide on the Recruitment and Retention of International
Workers in the Social Care Sector, Leyland Lancashire: Skills for Care North West.
Somerville, W. and Sumption, M. (2009) Immigration and the Labour Market: Theory, Evidence and
Policy, Manchester: Equality and Human Rights Commission.
Sriskandarajah, D., Cooley, L. and Kornblatt, T. (2007) Britain’s Immigrants, an Economic Profile,
London: Institute for Public Policy Research.
Sutton Guardian (2010) ‘Illegal immigrants discovered working at Sutton and Epsom and Merton
hospitals’, Sutton Guardian, 7 January, at http://www.suttonguardian.co.uk/news/4836659.Illegal_
immigrants_discovered_working_at_hospitals/.
TUC (2007) Safety and Migrant Workers, A Practical Guide for Safety Representatives, London: TUC.
UK Border Agency (2008) Prevention of Illegal Working. Guidance for Employers on the Avoidance of
Unlawful Discrimination in Employment Practice while Seeking to Prevent Illegal Working, Code of
Practice, London: UKBA.
12 Management Handling of
chapter
Religion and Belief in the

Workplace: Challenges
and Solutions
MARTIN MITCHELL, CHRIS CREEGAN AND SARAH DICKENS
Introduction
The Employment Equality (Religion or Belief) Regulations came into force in December
2003, making it illegal for employers to discriminate against workers on the grounds of
religion or belief. These regulations raised important new challenges for employers when
trying to treat people fairly and without discrimination in the workplace. The regulations
have been subsequently restated by the inclusion of religion and belief as one of the
‘relevant protected characteristics’ within the Equality Act 2010. This chapter reports on
research commissioned by the Advisory, Conciliation and Arbitration Service (Acas) and
the Chartered Institute of Personnel and Development (CIPD) – and conducted by the
National Centre for Social Research – which examined religion and belief challenges faced
by employers and managers at a time when the 2003 regulations were being embedded.
Following a brief discussion of the legal and research terrain in this area, the chapter
outlines the main issues, challenges and solutions related to religion and belief discussed
by employers and managers in the study. This is then followed by an exploration of
other, more generic issues identified in terms of delivering equality and fairness in
the workplace related to religion and belief. Although focused on religion and belief,
the discussion of the practicalities of implementing equality and diversity measures is
likely to have relevance to those concerned with introducing policies and practices in
organisations across all the equality strands. Finally, the potential for conflict between
the regulations relating to religion and belief and sexual orientation are raised as well
as possible solutions to these issues. The chapter also illustrates the use of the research
technique of a deliberative event to capture the views and experiences of managers and
draw out potential solutions to challenges encountered.
The Legal Context

There was considerable discussion of the scope of the religion and belief regulations
during the early stages of their implementation (see Fitzpatrick 2007). Under the Equality
Act 2006, the regulations were clarified so that (a) ‘religion’ meant any religion; (b) ‘belief’
meant any religious or philosophical belief; (c) a reference to religion included a reference
to a lack of religion; and, (d) a reference to belief included a reference to a lack of belief.
In practice this means religion can be interpreted widely to include less established
religions as well as those more commonly known such as Christianity, Judaism, Islam,
Hinduism, and so on. Belief has also been interpreted fairly widely to include any belief
that resembles a religion or that means holders of the belief have deep-seated views (for
example, pacifism, paganism, humanists, vegans, and so on).1 A reference to a lack of
religion or belief means that atheists or non-believers are also protected by the regulations.
Employment Tribunals and other courts have the jurisdiction to decide whether particular
beliefs or circumstances are covered by the regulations.
The 2003 regulations apply to all employment and vocational training and include
issues such as recruitment, terms and conditions, promotions, transfers, dismissals
and training. They cover direct discrimination, indirect discrimination, harassment of
employees on the basis of religion and belief and victimisation of any person making a
claim or giving evidence in support of a claim of such discrimination. Another significant
issue relates to genuine occupational requirements, such that exceptions under the
regulations can be made if there is a proven requirement for an employee to be of a
particular religion or belief in order to comply with the religious belief or ethos of the
organisation (see Acas 2006a).
Previous Research and Employment Tribunal Decisions

Cases of Religion and Belief Discrimination
Research by Fitzpatrick (2007) identified information on 863 religion or belief cases in

2005–2006 based on published employment tribunal decisions, higher court judgments,
Acas records and other information from the Employment Tribunal Service (p. 5). Savage
(2007: 5) also provides a statistical analysis of Acas case records of all religion and belief
cases brought between January 2004 and August 2006, with two thirds of these having
race as a secondary jurisdiction. Cases at employment tribunals where claimants have
won their case have included direct discrimination (such as failure to recruit people or
dismissal on the basis of their religion) and indirect discrimination related to terms and
conditions, such as those outlined below.
Research on the experiences of employees who made complaints or took out formal
grievances found that alleged unfair dismissal and discrimination in terms and conditions
were significant issues (Denvir et al. 2007: 8). Discrimination relating to terms and
conditions that made religious observances impossible was particularly significant for
claimants (ibid.: 3). These issues emerged as the ‘dominant theme of the calls received by
1 However, political beliefs, such as membership of the British National Party (BNP), have been excluded from
coverage by the legislation.
M a n a g e m e n t H a n d l i n g o f R e l i g i o n a n d B e l i e f i n t h e W o r k p l a c e 157
the Acas helpline’ (Savage 2007: 6). Inflexibility by employers in accommodating religious
observances have also been reflected in employment tribunal decisions in favour of some
claimants, such as that of a Christian woman who resigned from her job because she
felt that she was unable to attend church on Sunday after revised changes to her shift
patterns.2
Employment Tribunal Decisions
Despite cases in favour of claimants described above, employment tribunals have not
always taken such a view. Fitzpatrick (2007) has noted the ‘unwillingness of tribunals to
treat issues of religious adherence as a direct discrimination issue’ (ibid.: 46), preferring
instead to view them as indirect discrimination. By doing so, employers against whom
a claim is made ‘are given the opportunity to objectively justify their treatment of the
individuals concerned’ (ibid.: 10). Where employers can show that they have attempted to
accommodate religious needs, that the discrimination has a legitimate business purpose,
and/ or that the treatment is proportionate, then it can be justified. An example was a
classroom assistant who was told that she could not wear the niqab (a veil covering all
of the face except the eyes) while teaching pupils because of the way in which it affected
communication with them.3
Another theme to emerge in the literature was of ‘organisations with a religious ethos
reportedly discriminating in areas such as promotion on the basis that claimants did not
have a religion or was from a different religion’ (Denvir et al. 2007: 8). Associated with this
were cases where religious organisations had attempted to apply ‘genuine occupational
requirements’ incorrectly. A notable example was the case of a non-Catholic teacher who
was turned down for a new post within his Catholic school where the tribunal ruled
that the general operational requirements (GORs) were overly restrictive and therefore
inapplicable.4
Management Handling of Claims of Religion or Belief Discrimination
What little research that there has been on the management of religion and belief in the
workplace suggests that managers have in the main been unsuccessful at implementing
effective policies to deal with these issues. In particular, they have been found to feel
‘deficient in the capacity to deal with religion and belief issues, with many employees
lacking faith in them to adequately handle cases of religion or belief discrimination
or harassment’ (Denvir et al. 2007: 9). Poor handling of cases has also brought about
negative impacts for employees making claims, such as mental health problems or
having to change jobs or move away from a specific area (ibid.). Despite the existence of
good practice guidance on the handling of religion and belief issues by employers (for
example, Acas, 2006a; CIPD 2008a and 2008b), there was also an awareness that this
would need to be reviewed in relation to the actual experiences of employers once the
legislation had bedded down.
2 Williams-Drabble v Pathway Care Solutions (Case No. 26017118/04 (4837/112) January 2005 (see Fitzpatrick 2007:
39–40).
3 Mrs A Azmi v Kirklees Metropolitan Council (Case No 180450/06) October 2006 (see Fitzpatrick 2007: 25–27, 41–42).
4 Mr D McNab v Glasgow City Council (S/107841, March 2006) (see Fitzpatrick 2007: 20–23).
The Research
Aims and Objectives
The research discussed in this chapter was part of a wider study on managing religion
and belief and sexual orientation discrimination in the workplace, commissioned by
Acas and the CIPD and conducted by the National Centre for Social Research (Dickens
et al. 2009). The main aims and objectives of the study as they related to religion and
belief were to:
• Gain a better understanding of the experiences, knowledge and challenges facing

employers in handling of these issues; and
• seek ideas to facilitate the positive handling of these aspects of employing people
with a view to creating harmonious workplaces and fair treatment.
Methodology
The research took the form of a one-day deliberative event held in June 2008. This involved
using stimulus materials to enable participants to go beyond their current knowledge
and understanding and to identify potential solutions and strategies in relation to the
challenges identified. Participants were drawn primarily from the CIPD’s membership
database, although selected participants were also invited via Acas and the Trades Union
Congress (TUC).
Participation was voluntary, but careful monitoring of the organisations that
volunteered meant that it was possible to achieve a purposive and diverse sample in terms
of the size of organisations; employers from the private, public and voluntary sectors; and
managers with a variety of different types of management experience (for example, chief
executives, line managers, human resources managers). There were 48 participants, who
were divided into four groups:
• small employers;5
• medium employers (line managers);
• medium employers (human resources managers); and
• large employers.
Each group had a morning and afternoon session. All sessions were digitally sound
recorded, transcribed verbatim and systematically analysed using thematic analysis.
Where contributions or case examples are discussed below, they have been anonymised,
except where the organisations or individuals involved gave their consent for their
organisation to be named.
5 Small employers were defined as 1–99 employees; medium employers as 100–4,999 employees; and large employers
as 5,000 to over 20,000 employees.
Challenges and Solutions Relating to Religion and Belief

Reflecting the previous research and tribunal cases described above, religion and belief
issues identified by employers in the study tended to be focused on indirect discrimination
and the practical aspects involved in accommodating religious observances. Discussion
among the participants in this study focused on three main challenges:
• Distinguishing between reasonable and unreasonable religious observances in the

context of the balance to be struck between religious needs and business needs;
• dealing fairly with competing needs between religious employees and other employees;
and
• the practicalities of accommodating diverse needs of employees in terms of religious
observances.
Accommodating Religious and Business Needs
There was agreement among the managers that they should try to accommodate religion
or belief needs wherever possible, but that this should be balanced against the need for
an organisation’s business case to remain the priority (a topical example discussed at the
time was the case of a British Airways employee who felt that she was being discriminated
against for not being allowed to wear a crucifix at work6). Key to responding appropriately
was the capacity of managers to distinguish between actual and perceived religious
needs. Achieving the right balance between accommodating reasonable demands, versus
disallowing demands that were considered unreasonable was identified as a further
potential difficulty. These issues were thought to be particularly challenging for managers
who lacked confidence and knowledge in this area.
Understanding the difference between actual and perceived religious needs was
thought to depend on access to good training and succinct information about various
religions and beliefs; whilst balancing religious and business needs was thought to depend
on building knowledge of case law that would allow managers to have confidence in their
decisions. The key issue here was felt to be that, while employers should avoid indirect
discrimination and adopt good practice in accommodating reasonable demands where
possible, they needed to be confident that the regulations do not oblige them to do so
(for example, giving time off or providing religious facilities where this conflicts with the
needs of business).
The response of the employers and managers in the study suggests that existing
information needs to be better promoted (see also below). Notably, information is already
available about religious holidays and faith requirements (for example, Multi-faith net;7
Acas 2006a, 39–50), and guidance and reviews of case law on the religion and belief
regulations do make reference to balancing religious and business needs (for example,
Acas 2006; Fitzpatrick 2007). An example of a case where an employment tribunal
6 This was another case that gained significant media attention. Although the complainant, Nadia Eweida, initially
lost her case that she should be allowed to wear a crucifix, British Airways eventually backed down over its policy after
a storm of criticism from government ministers and Church of England bishops. (see, for example, http://www.xperthr.
co.uk/blogs/employment-intelligence/2009/03/religious-discrimination-briti.html)[accessed 29 January 2011].
7 Multi-faith net is a website that details the cultural differences and customs of different religions. It can be accessed
at: http://www.mutlifaithnet.org [accessed 29 January 2011].
thought that the business case outweighed religious needs was where a Muslim maths
teacher was told that he would have to teach on a Friday afternoon during prayer time in
the context where the school was underperforming in his subject.8
Being clear to employees about the organisation’s ethos in relation to diversity, and
what this means in terms of employee’s rights and responsibilities was considered to be
the way of avoiding unreasonable religious demands before they arose. Open discussions
with employees about organisational requirements prior to them joining, or preceding a
change to their working environment once they had joined, were thought to offer ways
forward in this respect.
Competing Needs of Religious Employees and Others
The discussion of potential conflicts between different equality strands focused on

whether there should be a hierarchy of needs, or whether everyone’s needs should be
treated equally. In particular, there was uncertainty about whether employees requesting
time off for religious observances should take priority over those requesting time off for
other reasons, for example, social or family obligations. An additional concern was that
conceding to one employee’s demands but not others would create resentment amongst
a ‘disenfranchised majority’ that often appeared to be unprotected by law. In addition
to this was the fear of so-called ‘blank equalisation without any form of differential
treatment’. This referred to the concern – held amongst large employers in particular –
that trade unions would press for specific concessions made in particular and specific
circumstances to be widened to encompass all employees, which was thought to be
practically unworkable.
Suggested ways of dealing fairly with competing needs of religious employees and
other employees were to aim for a transparent, open allocation system in terms of
working days; trying not to favour one employee’s needs over another; and adopting
flexible working practices. For example, one organisation represented in the research
allowed employees to take alternative bank holidays so that they could observe their own
religious festivals where these differed from those in the Christian calendar. In another
large organisation, half of the staff were on flexible rosters because of the nature of their
work, which enabled the employer to accommodate time off for particular religious
observances, as well as for other non-religious reasons.
Accommodating the Diversity of Religious Observances
In addition to the need to take time off, the practicalities of accommodating the potentially
diverse religious needs of employees were discussed in relation to the provision of prayer
rooms or other facilities. Larger organisations such as Transport for London (TfL) had
established over 15 different faith rooms. However, smaller organisations with less
capacity had also made a room available as a general faith room, although in some cases
problems had arisen when different groups wanted to use the room at the same time.
Where the provision of prayer facilities for a number of faiths was not possible within
existing space, other organisations such as the British Library had negotiated access to
8 Mayuff v Governing Body of Bishop Challoner Catholic Collegiate (3202398/04, December, 2005) (see Fitzpatrick 2007:
42–43).
local facilities with faith leaders and listed them on their website. Notably, St Ethelburghs
(2008) has also produced best practice guidance on providing prayer rooms and quiet
spaces at work.
Generic Challenges and Solutions

In addition to the challenges identified related to religious observances, a number of
other challenges were discussed that concerned the management of religion and belief in
more generic ways, and that may also apply to implementing equality in relation to other
protected characteristics. These are discussed below.
Building Knowledge and Understanding
A key challenge was thought to be the need to build the knowledge and understanding
among managers about religion and belief issues, and to do this through improved
awareness of case law and appropriate training. Lack of knowledge and understanding
of religion and belief issues in the workplace was thought to stem from the fact that
religion and belief was a relatively new equality ‘strand’ where there was a shortage of best
practice examples and case law from which to draw guidance. There was a concern that
a fear of litigation could result in managers avoiding tackling situations of conflict, over-
compensating by making inappropriate concessions, or delegating the issues encountered
to human resources departments without any direct engagement.
As discussed above, because such case law and good practice guidance is now being
developed, this study suggests that employers and managers may be unaware of it, or that
existing guidance is not meeting their needs. Key solutions identified are:
• Better signposting to relevant case law information that is accessible and authoritative;
and
• improved training that focuses on equipping people with the practical skills and
knowledge of religion and belief issues in the workplace.
Acas was referred to several times as a useful source of information on the ‘dos and
don’ts of particular religious beliefs’, tackling discrimination in employment, addressing
problems or issues in relation to religion and belief in the workplace, and reviewing or
writing policies (Acas 2006a and 2006b), as was the CIPD (CIPD 2008a and 2008b). A
number of other useful sources were also listed (see Dickens et al. 2009: 48–50).
Examples of good practice cited by employers and managers as having helped build
organisational knowledge and understanding of religion and belief tended to focus on
developing appropriate training, although clear signposting to examples of case law,
drawing on existing staff knowledge (for example, human resources, staff faith groups
and so on), and seeing how other organisations had responded to religion and belief
issues were also mentioned. Good practice in relation to training meant that all staff
within an organisation should receive diversity training, and that refresher courses
should be run when new developments in equality and discrimination laws occurred.
Basing training around actual previous incidents in the workplace was mentioned by
some as having been particularly successful, as was incorporating some scenario-based
role play. For example, delegates played the role of a manager talking to someone who
felt that they had experienced harassment on religion or belief grounds, or participated
by stopping the interaction they were observing at junctures where they felt a party had
responded inappropriately. Other ways of improving training included:
• Including diversity issues in more generic training as well as in specific diversity

courses (for example, a course around negotiation).
• Having diversity training that was related to specific roles (for example, training
with line managers that focused on handling difficult conversations and tackling
grievances and displays of intolerance).
• Line managers following up diversity training after the event (for example, discussing
with staff why they were going on the training and how it would affect their practice).
Notably, not all of these training strategies were available to smaller or medium-
sized employers (SMEs) and a number of suggestions were made to facilitate training
in this respect. Suggestions to improve training for SMEs included employer forums
(for example, Chamber of Commerce) acting as information brokers on good practice;
larger organisations acting as mentors to smaller ones; and web-based tools to allow
small businesses to ‘self-diagnose’ their equality performance and develop appropriate
strategies where problems were identified.
Managing and Sustaining Change in Organisational Culture
Two key concerns emerged here. The first was how to deal with displays of intolerance or
antagonism from work colleagues, for example, teasing or jokes or harassment around a
colleague’s religion or belief. The second was how to overcome both employee and employer
fears of raising issues of religion and belief and their concerns about saying ‘the wrong thing’.
A number of important strategies were identified for attempting to address these issues.
The first was through a demonstration of leadership in relation to equality and
diversity issues. Participants emphasised that senior managers had a vital role to play in
making an organisation’s values with respect to the diverse make-up of its staff explicit
from the pre-recruitment stage onwards. This involved:
• Demonstrating active support for the equality and diversity agenda;

• conveying a clear business case for embracing staff differences (for example, the
benefits of having a large talent pool to draw from); and
• giving a clear indication about what was and was not acceptable, and implementing
this message by disciplining or dismissing employees who behaved in an intolerant
way, according to appropriate legal and organisational procedures.
The second way to manage and sustain change was through signalling support for
diversity, equality, fairness and respect in the workplace. The organisation of staff events
that promoted acceptance of different religions and beliefs or to support staff faith groups
or networks were suggested. Examples were the celebration of different religious festivals
or more informal days when employees were encouraged to bring in food and talk about
practices relevant to their religion or culture. Support for religion and belief diversity was
also signalled by permitting staff faith groups (see Case Study 1).
Case Study 1 – successful use of staff network groups

(Transport for London)
TfL has seven staff network groups including faith network groups. The groups are self-
managed, and TfL provides specialist and budgetary support. TfL did a lot of promotion work
in the beginning to get these groups started, and initially provided an event around which
they could participate, to give them a sense of purpose, for example to feed into a DVD, or
managers’ guidance. The TfL representative stressed that the groups are not intended to
usurp the role of trade unions, but are largely used to give an indication to management
about whether TfL’s commitment to and policies around diversity are working on the floor.
The groups are sponsored by managing directors and directors.
A third way to achieve and sustain change in organisational culture was by promoting
greater staff consultation about diversity and equality issues, including religion and belief.
Two strategies were mentioned. The first meant creating a culture where it was acceptable
to make mistakes (provided the mistake was not intentionally harmful or upsetting);
for example, by making it clear that conversations which enable people to learn about
each other in a positive way would be encouraged. The second involved regular staff
consultation about the types of issues coming up and how they could be best resolved
(see Case Study 2).
Case Study 2 – tackling bullying and harassment

(organisation anonymised)
As a result of a serious incident of racial discrimination, an organisation (following

recommendations by the Equality and Human Rights Commission) introduced a working
group, whereby managers and frontline staff meet several times a year, on a rotating basis. The
purpose of these meetings is to go over best practice and issues in relation to diversity in the
workplace and how to resolve them. Out of these meetings, training has been developed that
is delivered to all the managers and frontline staff. They also have work-time ‘listen and learn’
sessions that are run for half an hour every week, for every employee throughout the business
where employees can express issues that concern them including bullying and harassment.
Good practice in relation to managing and sustaining organisational change was also
discussed in terms of mainstreaming and cascading. Mainstreaming ensures that good
understanding and management of religion and belief are entrenched throughout the
organisation, and do not just sit with organisational leadership or human resources. For
example, one organisation went about this by having a weekly ‘cascade mechanism’,
passing information from the executive meeting down to senior leads, who then informed
their teams. Another approach was to introduce targets or performance indicators:
one employer said that every manager in her organisation had specific targets in relation
to equality and inclusion. In this way managers could be held accountable for equality
and diversity in the same way that they were held accountable for budgets and health
and safety targets or indicators.
Handling Complaints and Grievances
The handling of complaints and grievances was the main area of day-to-day challenge
raised by employers and managers during the study.9 More specifically the challenge was
to overcome management ignorance or fear of dealing with complaints or grievances
about intolerant cultures – for example, those which permitted teasing or jokes around
an employee’s religion or belief – and how to prevent these issues escalating by addressing
them early and tapping into appropriate sources of support.
Related to this was the challenge to make employees feel confident that they could
trust their employer to deal with their grievance, rather than ‘keeping their head down
and putting up with banter’ for fear of a backlash, or further harassment. Without this
trust, it was felt that employees would be unlikely to disclose issues of discrimination
and harassment and that issues of religion and belief discrimination would be forced
underground.
Having clear procedures for handling complaints and grievances was mentioned
by several as a way of dealing with these issues, as well as ensuring that they were
clearly disseminated throughout the organisation. Alongside these policies, it was felt
to be important that managers receive support and training in their implementation,
particularly in relation to appropriate early implementation of grievance procedures to
prevent a situation becoming further inflamed, versus where it might be more fitting
to intervene informally in the first instance. Another key aspect of training was that
managers should be equipped with the basic requisite skills around handling difficult
situations and having difficult conversations. However, it was felt that managers should
not always have to deal with these issues on their own. Instead, they needed to be enabled
to tap into appropriate sources of advice and support when handling conflict – whether
more senior management, human resources, external agencies or mediation services.
Several organisations represented in the research specifically said they had used
mediation experts, whether external or internal, to step in and assist managers in resolving
conflict. One organisation, for example, spoke of having a mediation service which
operated independently of human resources. They regarded it as a way of encouraging
employees to reach a mutual understanding of the issues, and to move forward and work
together in a positive way.
Equal Opportunities Policies and Practices

Challenges related to equalities policies and practices were discussed in two main areas;
making policies accessible and relevant, and equal opportunities monitoring. In relation
9 Recruitment was another area of day-to-day practice discussed during the deliberative event, although this was
largely in response to a scenario provided by researchers rather than as a result of issues raised by participants themselves.
The decision to focus on management handling of complaints and grievances is taken in this context. Good practice in
relation to recruitment is relatively well understood (for example, see Acas 2006a: 12–14).
to the former a number of challenges were mentioned, these being how to integrate
religion and belief with other equality strands, for which there existed more abundant
case law; and how to make equal opportunities policies accessible, relevant, up-to-date
and easy to access.
Learning from, and benchmarking with, other organisations was considered to be a
useful way of making equal opportunities accessible and relevant, while also being able to
develop appropriate policies in a context where case law and good practice guidance were
still relatively scarce compared to other protected characteristics such as race or gender.
Learning from other employers could be pursued, either by researching the websites of
major companies to tap into their good practice, networking with colleagues, or through
employers’ forums or federations.
Two other general aspects of good practice in relation to equal opportunities were
described. The first was to treat equal opportunities polices and procedures for handling
discipline and grievance issues as active, working, practical documents (for example,
including concrete examples in training, making sure that the language was accessible
and user-friendly). The second was to ensure that policies were regularly reviewed
and modified in the light of changes to legislation thereby treating them as works in
progress.
Knowledge of and opinions about equal opportunities monitoring of employees’
religion and belief varied quite widely. At one end of the spectrum was the opinion
that requesting information about religion and belief when new employees joined an
organisation was intrusive and unnecessary. Conversely, others argued strongly that
monitoring was critical in enabling employers to track recruitment and promotion by
different groups, and employ positive action where the monitoring showed it to be
necessary. A further argument in its favour was that it signalled to employees that an
organisation took religion and belief issues seriously.
Whatever people’s views about monitoring, the major obstacle was agreed to be
overcoming employee reluctance to disclose religion or belief on monitoring forms.
One of the main stumbling blocks was felt to be employees’ lack of certainty on joining
an organisation about how accepting it was to people from particular groups. A further
challenge was felt to be achieving employer support for the principle of equal opportunities
monitoring. More practically, participants also raised the issue of how organisations
could best use monitoring data to assist with their diversity policies and strategies in
meaningful ways. The feeling was that sometimes the data just ‘sat there in HR’ without
any clear organisational understanding of why it had been collected.
A number of strategies were discussed in terms of overcoming reticence about
equality monitoring and gaining support for it. In one case, an organisation had started
to overcome low response rates by changing the original monitoring form to explain
why they were monitoring. Vital here was a clear explanation of why the organisation
was asking for the information, also providing reassurances about who would see it,
and emphasising that the data was being collected to promote equality and fairness.
Acas (2009: 28) has subsequently produced a sample explanation and categories used to
monitor religion and belief. In other cases the value of having support networks for staff
alongside monitoring was also stressed; for example, one participant’s organisation had
publicised the presence of staff network groups on the monitoring forms, which they felt
had improved response rates, and increased membership of the groups.
Using monitoring data as a tool to effect change and improve practice in relation
to religion and belief was also cited as good practice. Some organisations had carried
out specific equality impact assessments in relation to religion and belief as well as the
other equality strands. There was a feeling that where done well, this practice could give
organisations concrete information about their organisational performance (for example,
in relation to the career progression of people from different groups).
Finally, there was also a view that best practice should ideally involve the
implementation of equal opportunities policies and practices in combination in order
to optimise impact, and that there were risks attached to implementing initiatives in
isolation. For example, equal opportunities monitoring was not thought likely to be
successful without other demonstrations of organisational acceptance.
Potential Conflict Between Religion and Belief and Sexual

Orientation Regulations
A specific concern among employers and managers was that there was the potential for
conflict between the religion and belief regulations and the Employment Equality (Sexual
Orientation) Regulations (2003) designed to promote equality and protect workers from
discrimination based on sexual orientation. On the one hand there was the view that open
discussion of sexual orientation in the workplace could create difficulties for employees
who hold views that homosexuality is wrong or should be a private matter. On the other
was the view that the religion and belief legislation could be used to create opportunities
to justify discrimination against lesbian, gay and bisexual colleagues or service users.
Mitchell et al. (2009) found that there were three ways in which the religion and belief
regulations might potentially be used to discriminate against lesbian, gay and bisexual
(LGB) employees. These were to:
1. Use the provision related to ‘genuine occupational requirements’ (GORs) to exclude

LGB people as employees from organisations with a religious ethos (as in the case
where the Church of England attempted to block the appointment of a gay man to
the role of a youth worker, which was ruled unlawful by the Tribunal10).
2. Use religious beliefs about homosexuality to avoid having to deal with LGB members
of the public on grounds of religious conscience (as in the case of the Islington
Registrar who refused to conduct same-sex civil partnerships11).
3. Justify prejudiced treatment or harassment of LGB colleagues on grounds of freedom
of religious belief (as in the case of a Christian man who distributed biblical extracts
hostile to homosexuality to his work colleagues12).
10 John Reaney took the Hereford Diocesan Board of Finance to an Employment Tribunal after his appointment to the
role of youth worker was blocked on the grounds of his sexual orientation by the Bishop of Hereford. (see for example,
http://www.thinkinganglicans.org.uk/archives/002903.html). The use of GORs have also applied to failed attempts to
restrict recruitment, promotion or training to people who are members of a particular religion over others who hold
different or no religion (see McNab v Glasgow City Council above in Fitzpatrick 2007: 23).
11 In this case the Registrar, Lillian Ladele, argued that as her religion taught her that same sex partnerships are morally
wrong she could therefore not perform civil partnership registrations ‘as a matter of religious conscience’. Discussion of
the decision of the Employment Tribunal in favour of Ms Ladele and the subsequent overturning of this decision in
favour of Islington Council can be found at: http://www.secularism.org.uk/islingtonchristianregistrardecis1.html.
12 Mr T Apelogun-Gabiels v London Borough of Lambeth (see Fitzpatrick 2007: 28).
This research found that fears about discrimination against LGB people based on
religion and belief were based more on concerns about potential clashes rather than
actual widespread experiences of this kind. There was discussion, however, about how
to manage employees with religious views that were hostile to homosexuality, how to
address issues of sexual orientation without offending people with deeply held religious
beliefs, and how to prevent such difficulties from escalating.
Two uncertainties about how to manage such issues were raised. The first was whether
homophobic actions (such as the distribution of homophobic material in the workplace)
could only be deemed an offence if they were proven to have had a negative impact on
other employees within the organisation. Whereas some thought that this possibly was
the case, others felt strongly that such an action should not be judged according to its
impact, but about whether it was acceptable or not to the organisation in principle based
on its policy and legal requirements.
A second uncertainty was how to deal with a case where an employee fulfils the technical
duties of his/her role, and displays no overt intolerance, but harbours private views which,
if widely known, might result in a negative impact on attempts to create a diverse and
respectful organisational culture. This was felt to be a particular issue where the employee
was a figurehead of the company in some way. A specific example given was of a diversity
officer who did not want his role to involve actively having to condone the acceptability of
homosexuality. Although this meant in principle that he could fulfil all his job requirements,
the concern was that this gave out a bad message to LGB employees. A reverse example might
be a gay or lesbian diversity officer who was explicitly anti-religious.
A number of approaches and solutions were put forward to address these issues. Creating
a culture of tolerance and respect, coupled with an emphasis on distinguishing between
private views and professional behaviour in the workplace, was one approach noted. Here
it was emphasised that organisational policies needed to be specific that behaviour beyond
certain points will not be tolerated, and could result in dismissal (for example, blatant
disregard for another employee, hateful behaviour, harassment, bullying, and so on), and
that professional behaviour would be expected at all times. Notably, some research indicates
that people with religious beliefs are not necessarily homophobic and do make such a
distinction between their private views and their professional role (Hunt and Valentine
2008: 7). Employers also noted the importance of respecting people as individuals and
encouraging employees not to define people by their sexual orientation or religion alone.
Ways of gaining support for a culture of diversity and respect between people from
different groups were also raised. One approach was to tackle potential discrimination
and harassment by focusing on the unfairness of discrimination, harassment or bullying
rather than treating the issue of one of sexual orientation or religion or belief. Another
approach was to attempt to galvanise employees with different beliefs around common
work goals. Participants considered dealing with HIV as a particularly successful example
of LGB and African communities (in which there were large proportions of people with
religious beliefs hostile to homosexuality) working together and overcoming differences.
Where conflicts arose, employers and managers also discussed the use of internal or
external mediation services. An example of this was the use of an industrial chaplaincy
service to talk to a religious group about why they felt that having openly gay employees
in their workplace was a problem, and to put forward management’s perspective. The
service had then brought the religious group and gay employees together to talk through
and resolve these issues.
Conclusion
Specific challenges faced in relation to the management of religion and belief in the
workplace tended to focus on accommodating religious observances in the workplace,
particularly: distinguishing reasonable and unreasonable religious observances in the
context of business needs; dealing with competing religious and other employees fairly;
and the practicalities of accommodating religious needs. In addition, a number of generic
challenges were identified, as well as the potential for conflict between religion and
belief discrimination and discrimination based on sexual orientation. Although it was
not possible to identify an exhaustive list of examples of good practice and solutions
to the challenges raised within a one-day deliberative study, this method was found to
be an effective means of generating discussion of issues and potential solutions. This
research therefore makes a significant contribution towards beginning to establish the
nature of religion and belief issues from an employer perspective, and an important start
in generating potential solutions to the challenges identified. In addition to the examples
of good practice and possible solutions discussed here and in the full report of the study
(Dickens et al. 2009), the research has also contributed to guidance on delivering equality
and diversity recently produced by Acas (2009) and the CIPD (2009).
References
Acas (2006a) ‘Religion or belief and the workplace: A guide for employers and employees’, at http://
www.acas.org.uk/CHttpHandler.ashx?id=107&p=0 [accessed October 2008].
Acas (2006b) ‘Tackling discrimination and promoting equality: Good practice guide for employers’,
at http://www.acas.org.uk/CHttpHandler.ashx?id=318&p=0 [accessed October 2008].
Acas (2006c) ‘Sexual orientation and the workplace: A guide for employers and employees’, at
http://www.acas.org.uk/CHttpHandler.ashx?id=105&p=0 [accessed October 2008].
Acas (2009) ‘Delivery equality and diversity’, at http://www.acas.org.uk/CHttpHandler.ashx?
id=1048&p=0
Chartered Management Institute (2008a) Embracing Diversity: Guide for Managers, London: CMI.
CIPD (2008b) ‘Religious discrimination and an introduction to the law’, at http://www.cipd.co.uk/
subjects/dvsequl/relgdisc/relgdisc.htm [accessed October 2008].
CIPD (2009) ‘Employers’ experiences in addressing sexual orientation, religion and belief at work’,
at http://www.cipd.co.uk/subjects/dvsequl/sexdisc/_sorb.htm
Denvir, A., Broughton, A., Gifford, J. and Hill, D. (2007) The Experiences of Sexual Orientation and
Religion or Belief Discrimination Employment Tribunals, London: Institute for Employment Studies
and DTI.
Dickens, S., Mitchell, M. and Creegan, C. (2009) ‘Management handling of sexual orientation, religion
and belief in the workplace’, at http://www.acas.org.uk/CHttpHandler.ashx?id=1050&p=0
Fitzpatrick, B. (2007) Sexual Orientation and Religion or Belief Cases, London: Trades Union Congress.
Hunt, R. and Valentine, G. (2008) Love Thy Neighbour: What People of Faith Really Think About
Homosexuality, London: Stonewall.
Mitchell, M., Creegan, C., Howarth, C. and Kotecha, M. (2009) Sexual Orientation Research Review
2008, London: National Centre for Social Researc (NatCen) and the Equality and Human Rights
Commission.
Savage, B. (2007) Sexual Orientation and Religion or Belief Discrimination in the Workplace, London:
Acas Research and Evaluation Section and DTI.
St Ethelburghs (2008) Recovering the Calm: Best Practice Guide to Prayer Rooms and Quiet Space at Work,
London: Centre for Reconciliation and Peace.
Disability
13 Understanding Workplace
chapter
Adjustments for Disabled

Employees: The Law and
Good Practice
DEBORAH FOSTER
Introduction
Chronic illness and disability affects 17 per cent of Europe’s general population and
about 15 per cent of the working age population. Disabled people also have twice the rate
of non-participation in the European labour market as non-disabled people (European
Foundation 2003). In the UK, one in five adults have a disability and only 31 per cent of
disabled people, compared to 80 per cent of non-disabled people, are economically active
(Roulstone and Warren 2006). Disabled women, moreover, find it more difficult to secure
employment and earn less than disabled men and non-disabled women (Emmett and
Alant 2006), which suggests they experience multiple discrimination. Of those disabled
people able to secure employment there is evidence that they are more likely than non-
disabled people to be employed in low status jobs, be underemployed and unable to
achieve promotion (Russell 2002). Yet despite these obvious disadvantages, most disabled
people would like to work and this ambition does not decline with age (Evans and Repper
2000).
A study by the Institute of Public Policy Research (IPPR) in 2003 reported that a
significant proportion of disabled people become disabled whilst already in employment
(IPPR 2003: 1). This suggests that workplace disability policy and practice, particularly
where it affects skill retention should, therefore, be of interest to HR professionals,
managers and trade unions. Recent research, however, suggests this is not always the
case (Foster 2007). Organisations often have a poor understanding of disability law and
their responsibilities to disabled employees, which in turn can result in unnecessary
stress, high incidences of workplace bullying and ultimately the loss of valuable human
resources (Foster 2007; Fevre et al. 2008).
This chapter explores a key provision in UK disability employment law, that of
‘workplace adjustments’. The chapter begins by examining the introduction of disability
employment legislation in the UK, the principles on which it was founded and the
significance of subsequent amendments. It then goes on to consider the legal obligations
of employers to disabled employees, experiences of the law from the employee perspective
and the implications for trade union workplace representation in this area. At the end
of each section, which looks at the organisational role of these three different workplace
actors, a summary of key points is provided to clarify core rights and responsibilities
associated with workplace adjustments.
The Legislative Context: UK Disability Employment Law

The UK Disability Discrimination Act (DDA) was introduced in 1995 (although its
employment provisions did not come into force until 1996) and was the first piece of UK
legislation to provide disabled people with the right to challenge discrimination in the
labour market and employment. Section six of the employment provisions of the DDA
placed a duty on employers to make ‘reasonable adjustments’ to their physical workplace
environment and their employment arrangements, so that disabled employees are not
put at a ‘substantial disadvantage’. Adjustments to the physical workplace environment
are generally understood to be measures that improve accessibility for people with
mobility-related or sensory impairments. Adjustments to employment arrangements are
sometimes also termed adjustments to ‘the work itself’. These can include, for example,
alterations to hours of work, place of work, allocation of duties, or redeployment.
The definition of ‘disability’ used in the UK DDA has been controversial and differs
from that used in the employment law of other countries, for example, the United States.
Here, the law acknowledges that disabled people may experience disadvantages arising
from social stereotypes and prejudice, whereas in the UK the legal definition of disability
is restricted to medical criteria. The definition of a disability, under the terms of the
UK DDA, referred to a person’s physical or mental impairment that might ‘have a long
term effect on his (sic) ability to carry out normal day to day activities’ (DDA 1995,
Section 1 (1)). The phrases ‘substantial’, ‘long term’ and ‘normal’ have proved legally
contentious and some have argued (Goss et al. 2000) that the DDA subjects employees
to an ‘impairment eligibility test’ before discrimination is recognised. Originally, the
requirement that a medical condition be ‘long term’ specified a period of 12 months or
more as the legal benchmark. However, subsequent amendments to the DDA, which have
been incorporated into the recent Equality Act 2010, revised this definition of disability
to include medical conditions that are both ‘likely to last for at least 12 months, or it is
likely to last for the rest of the life of the person affected’ (schedule 1, part 1 Equality
Act 2010). Importantly, this means that a medical condition judged ‘likely’ to have a
substantial impact on a person’s health from the point of diagnosis, for example, HIV or
cancer, falls under the protection of anti-discrimination legislation immediately. Persons
with a history of disability, even if an impairment no longer has a substantial adverse
effect on their day-to-day living, continue to be protected by the definition contained
in the Equality Act 2010, if a medical condition is likely to recur, thus also providing
protection to employees with progressive, recurrent or unstable impairments (Lockwood
1999). Misunderstandings about who qualifies as ‘disabled’ under the definition used
in UK law have been common since its introduction amongst employers, unions and
employees (Foster 2007). For example, it is often assumed that disabilities are visible
and apparent, yet many disabilities are non-visible, for example, ME, or mental health
conditions (see Tambourides, Chapter 14 ) and, interestingly, only five per cent of disabled
U n d e r s t a n d i n g W o r k p l a c e A d j u s t m e n t s f o r D i s a b l e d E m p l o y e e s 175
people fall into the category of ‘wheelchair users’ (Duckworth et al,1998), even though
this is the most commonly used symbol to denote a disability.
The DDA 1995 was amended in 2004 by the DDA 1995 (Amendment) Regulations
2003, to comply with changes brought about by the introduction of the European Union
(EU) ‘Employment Equality Directive’ 2000. EU amendments ended certain opt-outs
in the original UK 1995 legislation that had been a bone of contention with disability
rights organisations (Disability Rights Commission (DRC), 2005). In particular, it ended
the exemption that had been enjoyed by small employers and by certain categories of
occupation. The definition of disability discrimination in UK law, moreover, changed.
Discrimination had been defined as ‘less favourable treatment for a reason relating
to disability without justification’ and ‘failure to make reasonable adjustments’ (DRC
2005). However, where in the past an employer could justify a failure to make reasonable
adjustments on ‘material and substantial grounds’, a workplace adjustment would be
judged as either ‘reasonable’, or not, and the burden of proof changed in law from the
employee to the employer. EU provisions also meant disability harassment as a concept
entered UK law (Foster 2007). However, whilst providing disabled workers in the European
labour market with important new rights, EU law – like UK law – also utilised a medical
model of disability, which as Bell (2008) notes creates a problem because different countries
have used significantly different medical criteria to define what actually constitutes a
‘disability’. Therefore, entitlements to workplace adjustments vary across different EU
member states, undermining the concept of ‘free movement of labour’ central to the
Treaty of Rome (Foster and Williams 2010).
In addition to the DDA, since 2006 there has also been a statutory duty on public sector
organisations to promote disability equality in the workplace. The Disability Equality
Duty (DED) was modelled on the Race Relations (Amendment) Act 2000 (Incomes Data
Services 2005). It, moreover, reinforced the asymmetrical character of the DDA, which
allows for ‘different’ and in some circumstances ‘more favourable treatment’ of disabled
people to tackle discrimination (Foster 2007). Such an approach acknowledges the role of
historic disadvantage in sustaining workplace inequalities and the need for positive action
to address this (Dickens 2007: 474). The idea that some groups may have suffered from
past and ongoing discrimination and that positive provisions are needed to compensate
for the social disadvantages they may have experienced, is allied to the concept of
‘substantive equality’. This incorporates a belief that ‘difference’ plays an important role
and that equality can only be created if people are treated according to their needs (Bacik
1997). ‘Positive action’ can, nonetheless, be problematic. Unlike equal treatment, it can
sometimes go against people’s instinctive feelings about what constitutes ‘equality’ and
‘fairness’, something that is explored further below in relation to problems surrounding
the legal obligation to provide workplace adjustments. The DED has subsequently been
incorporated into the single Public Sector Equality Duty, a provision of the Equality Act
2010.
Disability Employment Law and Employers

Since the implementation of the DDA’s employment provisions, surveys of employers
have suggested that they misunderstand and are uncertain about their legal obligations
to disabled employees (TUC, 2003; Woodhams and Danieli 2000; Stacey and Short 2000).
Research that has specifically focused on how workplace adjustments are established
(James et al. 2003; Meager et al. 1999; Foster 2007) has, moreover, identified the concept
of ‘different’ as opposed to ‘equal’ treatment contained in the legislation as a key source
of this employer confusion (Foster 2007). Unlike previous equalities law on race and
gender, disability employment law allows employers to positively discriminate. The
concept of ‘difference’ facilitates this in two ways. First, an employer can treat a disabled
employee differently from a non-disabled member of staff by making alterations to, for
example, their standard job description or working hours, so that they are not put at a
substantial disadvantage. Second, because no person’s impairment is exactly the same, it
is legitimate for an employer to treat disabled employees differently from each other. For
example, adjustments organised for someone with a visual impairment, by definition,
are not going to be appropriate for someone with depression. However, the severity
and impact of a visual impairment might also differ between two employees who are
both categorised as ‘visually impaired’. Thus adjustments may need to be different and
tailored to specific individual circumstances even though the category of impairment
is the same. This demonstrates why it is essential that employers and managers consult
with employees and do not make assumptions about them based on partial knowledge
about the impact of their impairment on their employment context. These examples also
demonstrate the usefulness of professional occupational health assessments to employers
seeking to make the most appropriate workplace adjustments for employees.
It is the responsibility of employers to ensure that managers are adequately trained in
disability law. A recent study that examined the negotiation of adjustments in the public
sector workplace (Foster 2007) found that managers frequently ‘abdicated responsibility’
for adjustments to individual disabled employees. An important distinction, therefore,
needs to be made between ‘consulting’ disabled employees and ‘abdicating responsibility’
for them (Foster 2007). Organisations need to take legal responsibility for the adjustment
process and recognise that many employees will not have the knowledge, time, confidence
or job security to negotiate and implement adjustments themselves. It is also essential
that organisations develop transparent and accessible processes and procedures through
which adjustments can be formally negotiated (Foster 2007).
Legislation should have provided the impetus for employers to develop positive
schemes that retain, reintegrate and rehabilitate disabled employees in the workplace. In
an era of demographic change and acute skill shortages it was believed employers would
recognise the value of existing staff who become disabled while already in employment
(see EU Lisbon Employment Strategy, 2000–2010). Research suggests, however, that
instead workplace adjustments for employees are dominated by a ‘deficit’ approach
(Foster and Fosh 2010). This focuses primarily on what a disabled employee cannot do
and the associated costs of workplace adjustments, rather than what they can do. The
UK Government has provided support to employers in the form of the ‘Access to Work’
scheme, which will meet 100 per cent of the costs of equipment required by a disabled
person in post for less than six weeks and will pay the full costs if over £10,000, or a
proportion (80 per cent) of costs over £300, for those in post over six weeks. Research
by Duckworth et al. in 1996, soon after the introduction of the DDA, also suggested that
the average cost of workplace adjustments to employers was low, at just £200. However,
many employers do not know about the existence of the scheme and recently there have
been threats that it will be withdrawn from the public sector.
Public sector employers must also be aware of their statutory obligations under the
2006 Disability Equality Duty (DED), now incorporated into the Equality Act 2010. This
places a duty on employers to consult regularly with disabled people in the workplace
and to actively promote equality of opportunity for this group of employees. The Duty
also applies to disabled service users in the public sector. Through a publicly-available
Disability Equality Scheme (DES) that is regularly reviewed and updated, employers must
demonstrate that they have developed a strategy which has involved all relevant parties.
Regular workplace consultation with disabled employees might be achieved through the
employment of anonymous questionnaires. Staff networks of disabled employees, which
meet with representatives from management and Human Resource (HR) personnel, are
another common mechanism to facilitate consultation. It should, however, be remembered
that because many disabled people are reluctant to self-identify for fear of discrimination,
or have impairments that may mean they cannot always attend meetings, problems of
representativeness may arise from over-reliance on such groups.
Finally, the DDA introduced provisions for disabled job applicants who require
adjustments to attend or undergo interviews, which specified that employers had a legal
obligation to ensure that they were not disadvantaged in this process. There is little
available research on how many employers have been asked to provide adjustments and,
more importantly because of fears of discrimination, how many disabled people have
requested adjustments at the recruitment and selection stage. It is interesting, however,
that the Equality Act 2010 makes specific reference to ‘enquiries about disability and
health’ (Part 5, ch. 1 60(1)) at the application stage of the employment process. Questions
about the health of an applicant should, it notes, not be made ‘before offering work’ or
at the stage where a decision is being made about selecting from a pool ‘whom to offer
work’. However, it does appear that the act of asking about a person’s health of itself is
not prohibited. It is, rather, how the potential employer or her/his representative treats
this information which is significant (see ibid.: 60(3)). The 2010 Act thus recognises, for
example, that an employer may need to ask questions that establish whether there is a
duty to make reasonable adjustments, whether a disabled applicant would be able to
carry out a function ‘intrinsic’ to the proposed job and for diversity monitoring purposes
(see ibid.: 6a–e). In terms of other areas of the HR function disclosure of a disability is
relevant to a number of other contexts, policies, practices and procedures in organisations,
though this is sometimes overlooked. Such areas include performance appraisal and pay
procedures and promotions processes. Employers should be aware that the concept of
‘reasonable adjustments’ applies to these and other areas.
So what are employer responsibilities to disabled employees, including those with a
long-term health condition, and what provisions should they make?
• If an employee has been diagnosed with a medical impairment and this has or is
‘likely’ to have a long-term (that is, 12 months or more) impact on their ‘day-to-
day living’, they fall under the provisions of the Equality Act 2010, which places
an obligation on an employer to make ‘reasonable’ adjustments at no cost to the
employee.
• A professional occupational health assessment will help employers identify the
adjustments required by the employee and confirm employer obligations under law.
• Workplace adjustments can be both physical and non-physical.
• Physical adjustments might include alterations to premises, provision of additional

equipment, for example computer software, orthopaedic chair, and so on, or the
allocation of a parking space.
• Non-physical adjustments might include changes to work tasks (for example,
allocating part of a person’s job to someone else); changes to hours of work; home-
working; permission to travel to and from work out of peak rush hours; redeployment
or retraining. Such adjustments can change core terms and conditions of employment
and are, therefore, often viewed as more controversial (Foster 2007). The Equality
Act 2010 also highlights the obligations of organisations to comply with the law
by ensuring that policies, practices and procedures do not disadvantage disabled
employees.
• Impairments can be unpredictable and unstable, thus an employee who is able to
perform a particular task on one day may be unable to perform the same task on
another. It is essential, therefore, that organisations are flexible in their approach to
adjustments, that they are regularly reviewed and employees are consulted.
• Employers must consider how they could retain or redeploy an employee who
develops a disability while in work. It is no longer acceptable to pursue ill-health
retirement as a first option.
• If an employer fails to make an adjustment for a disabled person because that person
has not disclosed their disability, an employer cannot be held liable.
• It is essential that HR and managerial personnel receive appropriate training in
disability law and that organisations have transparent and accessible procedures
through which adjustments can be negotiated.
• Workplace adjustments as specified in the DDA (now superseded by the Equality
Act 2010) apply to recruitment and other aspects of the HR function, for example,
promotions and performance-related pay.
• The public sector duty places a duty on all publicly funded bodies to actively promote
equality for disabled persons (employees and service users) and consult them about
ways of doing this.
• Employers need to be aware that a poor understanding of the adjustment process can
lead to the bullying and harassment of disabled employees (see Fevre et al. 2008) and
put in place organisational procedures and practices to anticipate this possibility.
The Workplace Experiences of Disabled Employees

There is limited data available on the way that the DDA impacted on the day-to-day lives
of disabled employees, yet such insights are important to understand how workplace
adjustments can be positively implemented. Research, particularly in the business and
management literature, has tended to concentrate on how employers ‘manage’ disabled
employees, rather than how employees ‘manage’ organisations (Foster 2007: 79).
In-depth face-to-face interviews with a group of disabled employees published by
Foster (2007) offers a rare insight into the realities of disabled employees and the
problems they face in the workplace. It found that, as a consequence of poor employer
knowledge of the DDA, many employees experienced bullying, stress and illness when
attempting to negotiate workplace adjustments. Thus, a law intended to make the lives
of disabled people in the workplace easier, has, in some instances had the opposite effect
(Foster 2007). Research for the Equality and Human Rights Commission (EHRC) by
Fevre et al. (2008) that examined workplace bullying and harassment also found that
of all ‘minority’ groups they surveyed, disabled employees experienced more negative
behaviour than any other. Foster (2007) found the actual act of requesting workplace
adjustments, in itself, was enough to illicit inappropriate and discriminatory behaviour
from line-managers.
Despite the perception that HR departments are often regarded as ‘guardians’ of
equal opportunities, research in the public sector has suggested that dedicated equal
opportunities advisers and HR professionals offer inadequate support to disabled employees
(Foster 2007). Some authors have argued that organisational policies alone are not a good
indicator of good practice. An investigation of the effectiveness of organisational equal
opportunities (EO) policies in the public and private sectors by Hoque and Noon (2004),
for example, concluded that many equal opportunities policies were nothing more
than ‘empty shells’. Comparing policies in the public and private sectors, however, they
concluded that ‘EO policies in the public sector are less likely to constitute an “empty
shell” than are policies in the private sector’ and in the public sector ‘the probability of
having an “empty shell” policy falls … by 54 per cent for disability policies’ (ibid.: 495).
Non-physical adjustments to elements of a job (for example, hours of work) are often
regarded as more contentious by employers and managers, and are least understood
(Foster,2007; Foster and Fosh 2010). However, even where physical adjustments are sought
and acknowledged as essential, employees often report that they were slow to materialise
and, by the time they have been implemented, they have experienced some disadvantage
in the workplace (Foster 2007). This suggests that even in organisations where outcomes
are satisfactory (that is, equipment is provided), the processes that organisations use to
secure these outcomes are often inadequate (Foster 2007).
The absence of clear organisational procedures through which workplace adjustments
can be established is also a common complaint of disabled employees (Foster 2007; Foster
and Fosh 2010). Evidence, moreover, suggests that inadequate procedures mean individual
employees are left feeling that disability adjustments are their personal ‘problem’ rather
than an organisational responsibility. This lack of procedural formality can often be
reflected in the way that managers and trade union representatives regard the adjustment
process. Despite the fact that workplace adjustments can result in significant changes
to a person’s core terms and conditions of employment, there is little evidence that
establishing them is subject to a formal bargaining process (Foster and Fosh 2010). Like
managers, due to the complexity of disability law, workplace trade union representatives
can sometimes fail to understand the provisions of the DDA.
Some of the key problems that disabled employees experience when attempting to
secure workplace adjustments are summarised below.
• The employee’s disability is (wrongly) interpreted as a personal ‘problem’ rather than

a social or organizational responsibility rooted in a legal obligation.
• Line managers can misinterpret requests for adjustments as an attempt to secure
‘special favours’. This is because such requests can mean a disabled employee is treated
‘differently’. The law allows for this, it also acknowledges that in some instances this
may constitute ‘positive discrimination’.
• Non-physical adjustments (for example, reduction or changes in hours of work)
are sometimes regarded as controversial and evidence suggests that employees who
request these types of adjustments experience greater difficulties in securing them

(Foster 2007).
• Employees report that the lack of transparent, equitable and formal organisational
procedures through which workplace adjustments can be negotiated is a source of
stress and illness.
Disability, Workplace Adjustments and Trade Unions

Trade unions have an important role to play in representing disabled employees in the
workplace. On a day-to-day level workplace representation may be needed by employees
to negotiate and secure workplace adjustments. In terms of developing policy and good
practice, trade unions, moreover, have a broader function in ensuring that disability
concerns do not become over-individualised and are integrated into broader equality
and diversity agendas within organizations (Foster and Fosh 2010). As mentioned
previously, the DDA is based on a medical model of disability, which can contribute
to the perception that disability issues are somehow personal or private. The problem
with this is that when concerns are viewed in this way their wider collective relevance
to policy and practice tends to get lost. It has, therefore, been noted that the DDA has
contributed to the depoliticisation of workplace disability issues (Foster,2007), though as
some commentators have observed (Zola 2005) we are all potentially ‘at risk’ of ill-health
or disability during our life-course, therefore disability should be viewed as a universal
not a minority concern.
The role of unions in collectivising and by implication politicising workplace disability
issues is important. Nevertheless, research suggests (Foster 2007; Foster and Fosh 2010)
that workplace union representatives, like managers, can be confused about concepts of
‘different’ as opposed to ‘equal’ treatment in relation to adjustments. Disabled employees
often report feeling isolated and unable to engage trade unions in the adjustment process
because they fail to recognise it as a formal bargaining situation, despite the obvious
ramifications for alterations in terms and conditions of employment (Foster 2007; Foster
and Fosh 2010). Workplace adjustments are a legal obligation and should be treated thus,
nevertheless, many employees complain instead that securing these rights is a personal
lottery, dependent upon the attitudes of line-managers and good-will of union officers
(Foster 2007: 82).
The workplace representation of disabled employees presents unions with a number
of unique challenges. Most importantly, unions need to first identify ‘disabled employees’
as a specific constituency to represent in the workforce. This is more difficult than it
first appears, because many people who are defined as disabled under the DDA may not
know that they fall within this definition; may not wish to be defined by what some
regard as a stigmatising label (Beckett 2006; Watson,2002); or may be fearful of disclosing
their disability identity for fear of discrimination. Disabled people as a group are also
very diverse. Impairments can mean experiences of disability vary enormously, though
many disabled people do speak of experiencing a similar ‘social oppression’ from physical
barriers, misconceptions and prejudices in society.
In terms of organising disabled employees, unions are faced with the challenge that
many disabled people in the labour market prefer to identify with non-disabled people
so that they feel ‘assimilated’ or ‘integrated’ into the labour market (Schur 2003: 754;
Shakespeare 2006). Research from the US, moreover, found that employed disabled
people are less likely than disabled people not in employment to engage in political
activities related to a disability issue (Schur 2003: 765). Factors such as time constraints,
job insecurity and a weak identification with other disabled people were found to be
reasons for this, though the same study did find that those disabled people in employment
who had experienced some form of job discrimination within the previous five years
were more likely to engage in political activity (Schur 2003: 765–766; Foster and Fosh
2010). Getting a range of disabled people in employment to participate in campaigns and
activities may, therefore, require that unions build trust and create ‘safe spaces’ within
their organisations so that disabled people in the workforce are willing to self-disclose.
‘Coming-out’ as disabled to an employer is important because ultimately this is the only
way an employee will benefit from their legal right to workplace adjustments.
Emphasis within the DDA on medical assessments as a means of establishing a right to
workplace adjustments has shaped the character of workplace representation. For example
Foster and Fosh (2006, 2010) have noted that the need for detailed information that is
both person-specific (relating to a persons’ impairment) and task-specific (relating to the
technical or organisational aspects of the employee’s job role) inevitably dominates the
workplace adjustment process. Thus knowledge gained through the representation of one
employee is not always readily transferable to another and it can be difficult to develop
good collective practice out of such negotiations. Moreover, the type of representation
needed to establish workplace adjustments can be different from that usually required by
other ‘minority groups’. For many disabled people workplace adjustments are required so
that they do not experience disadvantage, which suggests representation must be proactive
rather than reactive, if discrimination is to be avoided (Foster and Fosh 2010).
The TUC has long recognised that disabled employees experience unique challenges
in the workplace. For example, in 2003 they published a report entitled The Experience of
Disabled Trade Unionists in the Workplace. More recently, they have been key participants in
the consultation process that predated the Equality Act 2010 and published a substantial
report in 2009, Equality Bill: Assessing the Impact of Multiple Discrimination. However, both
the TUC and trade union affiliates recognise that more could be done to meet the needs
of disabled employees in the workplace, something that is acknowledged in a recent
report on the role of union workplace equality representatives (TUC 2010). Some of the
key issues that unions might address in the future to further develop the role of workplace
representatives dealing with disabled employees are detailed below.
• Workplace union representatives need to receive effective training in complex

disability employment law. The concept of ‘different treatment’ that underlies the
right of disabled employees to workplace adjustments and how it applies to a variety
of workplace situations (including promotions, appraisal, recruitment, retention,
redeployment) must be properly understood.
• Many unions now ensure that disabled members are represented within their
structures by self-organised groups of disabled people. Employees need to know about
these groups and their existence at workplace, regional and national levels and know
that they will provide ‘safe-spaces’ for disabled employees to self-declare and self-
organise.
• Strategies that collectivise workplace disability concerns need to be developed
alongside individual case work. The DDA was framed in a way that medicalised and
personalised disability. Workplace adjustments also need to be tailored to individual

circumstances. Collective lessons, however, can be drawn out of individual examples
and it is important that unions develop proactive agendas around these. It is often the
social organisation of work and social prejudices that dis-able, rather than individual
impairments.
• Procedures to establish workplace adjustments need to be transparent and accessible
within organisations. By conceptualising the adjustment process as a formal
bargaining situation, unions could end the ambiguity surrounding their status and
end the situation whereby many employees experience the process as a ‘personal
lottery’ (Foster 2007).
• Unions need to ensure that workplace disability issues do not get marginalised in
wider equality and diversity agendas in organisations (see Foster 2007). The tendency
to view disability as an individual ‘problem’ contributes to the depoliticisation of
disability concerns.
Conclusions
Successfully negotiating workplace adjustments can mean the difference between
securing or remaining in employment or being unemployed, socially excluded and poor
for many disabled people. By exploring the implications of adjustments for three actors
in the workplace – managers, employees and trade union representatives – this chapter
has highlighted ongoing problems with disability employment law and workplace
practices more than ten years after the DDA was first implemented in the UK. Persistent
misunderstandings relating to key concepts in disability law and the medical definition of
disability that underpins it are sources of many of these problems. Evidence suggests that
disabled employees continue to experience disadvantage in the workplace because of poorly
trained managers, HR professionals and in some instances, trade union representatives.
Workplace disability issues, moreover, continue to be regarded as individual or personal
‘problems’ rather than collective concerns or organisational responsibilities (Foster 2007;
Foster and Fosh 2010). The DDA was a significant piece of legislation and the Equality
Act 2010, which has now replaced it, has given individual disabled employees the right
to challenge workplace discrimination However, because the DDA medicalised and,
therefore personalised, disability and this remains unchanged in the Equality Act, little
has been done to challenge the enduring negative social stereotypes of disabled people
that are often the cause of discriminatory behaviour.
It was noted that employers often approach workplace adjustments from a ‘deficit’
perspective (Foster and Fosh 2010). Thus, instead of thinking of employees as valuable
human resources with skills and knowledge that could benefit or be retained by an
organisation, once an employee is categorised as ‘disabled’ they are often perceived as
a ‘cost’ or ‘burden’ on the organisation. This narrow interpretation of what constitutes
a ‘human resource’ is associated with a rigid and mechanistic view of organisations,
where the ideal-type employee is full-time, has no personal life and is employed on a
standardised job contract. Flexibility, whether to accommodate women who have
childcare and caring commitments or disabled workers who have impairments is, from
this perspective, viewed as organisationally disruptive. Part of the problem associated
with the implementation of workplace adjustments, therefore, is related to the wider
problem of inflexible organisations. It is social processes and social practices that sustain
this inflexibility, thus a first step is for organisations to ‘own’ and ‘socialise’ workplace
disability concerns rather than abdicate responsibility in this area. Only by looking at
practices and social attitudes and beginning to understand how these create barriers and
prejudice against disabled people will organisations begin to play a positive role. The
focus must move away from individuals and their impairments to address social processes
that dis-able employees.
Acknowledgements
Some of the research contained in this chapter was undertaken for the purpose of a study
funded by the Economic and Social Research Council (ESRC) (Award Reference Number:
RES-000-22-0722). As well as thanking the ESRC for their support, the author would also
like to acknowledge Dr Marion Hersh, who by contributing to numerous discussions and
debates on disability and work, has undoubtedly also contributed to this chapter.
References
Bacik, I. (1997) ‘Combating Discrimination: The Affirmative Action Approach’, in R. Byrne and
W. Duncan (eds), Developments in Discrimination Law in Ireland and Europe, Dublin: Irish Centre
for European Law, 119–130.
Bell, M. (2008) ‘The Implementation of European Anti-discrimination Directives: Converging
Towards a Common Model’, The Political Quarterly, 79(1): 36–44.
Beckett, A.E. (2006) ‘Understanding Social Movements: Theorising the Disability Movement in
Conditions of Late Modernity’, The Sociological Review, 54(4): 734–752.
Dickens, L. (2007) ‘The Road is Long: Thirty Years of Equality Legislation in Britain’, British Journal
of Industrial Relations, 45(3): 463–494.
Disability Rights Commission (2005) ‘Important Changes to Part 2 DDA from October 2004’ http://
www.drc-gb.org/publicationsandreports [accessed 3 August 2005].
Duckworth, S., McGreer, P., Kearns, D. and Thornton, P. (1998) ‘International Research Project on
Job Retention and Return to Work Strategies for Disabled Workers’, Geneva: International Labour
Organisation.
European Foundation for the Improvement of Living and Working Conditions (2003) Illness,
Disability and Social Inclusion: Summary, 1–8. http://www.eurofound.ie/living/illness_disability.
Emmett, T. and Alant, E. (2006) ‘Women and Disability: Exploring the Interface of Multiple
Disadvantage’, Development Southern Africa, 23(4): 445–460.
Evans, J. and Repper, J. (2000) ‘Employment, Social Inclusion and Mental Health’, Psychiatric and
Mental Health Nursing, 7, 15–24.
Fevre, R., Robinson, A., Jones, T. and Lewis, D. (2008) Work Fit for All – Disability, Health and the
Experience of Negative Treatment in the British Workplace, Equality and Human Rights Commission,
Insight report 1, Autumn.
Foster, D. (2007) ‘Legal Obligation or Personal Lottery? Employee Experiences of Disability and the
Negotiation of Adjustments in the Public Sector Workplace’, Work, Employment and Society, 21(1):
67–84.
—— and Fosh, P. (2006) ‘Representing Disabled Employees in the Workplace: The Need for a Multi-
Dimensional Approach’. Paper presented at the British Universities Industrial Relations Association
Conference, National University of Ireland, Galway, July.
—— (2010 forthcoming) ‘Negotiating “Difference”: Representing Disabled Employees in the British
Workplace’. British Journal of Industrial Relations, 48(3): 560–582.
Foster, D. and Williams, L. (2010) ‘The Past, Present and Future of Equality Agendas: Problems of
Intersectionality in Theory and Practice’, in Blyton, P., Heery, E. and Turnbull, P. Reassessing the
Employment Relationship, Basingstoke: Palgrave Macmillan.
Goss, D., Goss, F. and Adam-Smith, D. (2000) ‘Disability and Employment: A Comparative Critique
of UK Legislation’, International Journal of Human Resource Management, 11(4): 807–821.
Gooding, C. (2000) ‘Disability Discrimination Act: from Statute to Practice’, Critical Social Policy,
20(4): 533–549.
Hoque, K. and Noon, M. (2004) ‘Equal Opportunities Policy and Practice in Britain: Evaluating the
“Empty Shell” Hypothesis’, Work, Employment and Society, 18(3): 481–506.
Incomes Data Services (2005) ‘Disability Discrimination Goes Public’, IDS Brief, 774, February.
IPPR (2003) ‘1 in 5 Adults has a Disability – Government Must Do More to get Disabled People Jobs’
press release, http://www.ippr.org.uk/pressreleases.?id+717, 12 June.
James, P., Cunningham, I. and Dibben, P. (2003) Job Retention and Vocational Rehabilitation: the
Development and Evaluation of a Conceptual Framework. Research Report 106. London: Health and
Safety Executive.
Lockwood, G. (1999) ‘The Disability Discrimination Act 1995: Credible legislation? The Main
Implications for Employers’, Journal of Applied Management Studies, 8(1): 113–118.
Meager, N., Doyle, B., Evans, C., Kersley, B., Williams, S., O’Regan, S. and Tackey, N.D. (1999)
Monitoring the Disability Discrimination Act. DfEE Research Report No 11, Brighton: Institute for
Employment Studies.
Roulstone, A. and Warren, J. (2006) ‘Applying a Barriers Approach to Monitoring Disabled People’s
Employment Implications for the Disability Discrimination Act 2005, Disability and Society, 21(2):
115–131.
Russell, M. (2002) ‘What Disability Civil Rights Cannot Do: Employment and Political Economy,
Disability and Society, 17(2): 117–135.
Schur, L. (2003) ‘Employment and the Creation of an Active Citizenry’, British Journal of Industrial
Relations, 41(4): 751–771.
Shakespeare, T. (2006) Disability Rights and Wrongs, London: Routledge.
Stacey, M. and Short, A. (2000) Challenging Disability Discrimination at Work, London: Institute of
Employment Rights.
Trades Union Congress (2003), ‘The Experience of Disabled Trade Unionists in the Workplace’,
www.tuc.org.uk/equality/tuc-6754-f0.cfm.
Trades Union Congress (2009) ‘Equality Bill: Assessing the Impact of Multiple Discrimination’. TUC
consultation response.
Trades Union Congress (2010) ‘TUC Equality Reps Project Extension Report’ (April 2009–December
2009).
Watson, N. (2002) ‘Well, I know this is going to sound very strange to you, but I don’t see myself as
a disabled person: identity and disability’, Disability and Society, 17(5): 509–527.
Woodhams, C. and Danieli, A. (2000) ‘Disability and Diversity – A Difference too Far?’ Personnel
Review, 29(3): 402–416.
Zola, I.K. (2005) ‘Towards the Necessary Universalizing of a Disability Policy’, The Milbank Quarterly,
83(4): 1–27.
14 Mental Health and
chapter
Discrimination:
A Short Guide to
Being Unreasonable
ALEX TaMBOURIDES
The reasonable man adapts himself to the world; the unreasonable one persists
in trying to adapt the world to himself. Therefore, all progress depends on the
unreasonable man.
George Bernard Shaw (1903), Man and Superman.
Introduction
One in four people will have a mental health problem at some point in their lives, I
am one of them. I also work for Hammersmith and Fulham Mind, a local group of the
organisation that represents people with mental health problems. This chapter is therefore
written both from a personal and professional perspective.
As of March 2010 the number of people in employment was 28.83 million (Office
for National Statistics) and it is estimated that one in six of these will be suffering from
depression, anxiety or other stress-related problems (Sainsbury Centre for Mental Health
2009). This means that approximately 4.8 million people are affected by stress-related
symptoms in the workplace. It has also been estimated that the total cost to business
of mental health problems is £26 billion across the UK economy (Sainsbury Centre for
Mental Health 2007). Such statistics quantify not only the impact on business but are
also a measure of unhappiness. Is it really acceptable to have such high levels of misery
in the workplace? Are we doing enough? In this chapter I argue that understanding
discrimination around mental health in the workplace is both a business and an ethical
imperative.
The DDA and Mental Health – A Brief History

The Disability Discrimination Act 1995 (DDA) came into force in December 1996 (see
Foster, Chapter 13). An update of the Act in December 2005 meant that the DDA also
applies to mental health conditions that may not be clinically recognised, but in order to
qualify under the DDA the person must be able to demonstrate that the disability has or
will affect them for a minimum of 12 months. (This also applies to a history of disability.)
The DDA is there to protect people from being discriminated against and to ensure that
employers make ‘reasonable adjustments’ for disabled employees, but a person is covered
by the DDA only once the employer knows of the condition (see ‘Further Information’
for details on Mind).
In what follows I will show how the DDA has and has not affected the workplace and what
employers and work colleagues can do to make working life better for people with mental
health issues. I will also show how we can combat discrimination and increase understanding
of mental health issues by using the DDA and other non-legislative methods.
In order to combat discrimination we must first understand it. Once we begin to
understand mental health, how it relates to work, how it relates to the DDA, then we can
begin to take action. The following is an attempt to provide a guide to how we might start
to achieve these goals.
A Time to Change: A Little Bit of Wood Before the Trees

When addressing mental health and discrimination, there is no need to act in isolation.
Mind is the country’s leading mental health charity and has been campaigning for people
in mental distress for over 60 years. Currently the country is in the middle of one of the
biggest mental health anti-stigma campaigns ever. Time to Change is a coalition of Mind,
Rethink, and the Institute of Psychiatry and is aiming to reduce discrimination by five
per cent by 2012 and to create a five per cent positive shift in attitudes towards mental
health problems. The campaign has tapped into the power of commercial television and
it cannot be underestimated how significant it is that millions of people were exposed to
advertisements about mental health on peak-time TV. It is also a huge step forward to see
positive messages about mental health on London Underground by celebrities such as
Stephen Fry, as millions tunnel their way to work.
Further huge steps forward in mental health are also currently happening, many of
them aimed at improving the labour market participation of people with mental health
problems. Improving Access to Psychological Therapies (IAPT), the brainchild of Lord
Layard and the result of tireless campaigning, is a huge expansion of therapy across the
country. This amounts to an overall spend of £173 million (between 2008 and 2011),
providing access to talking therapies for up to 900,000 people. An explicit aim of the IAPT
programme is that it will enable people to gain or maintain employment.
In addition to IAPT, Dame Carol Black was tasked with leading the Government-led
initiative, ‘Health, Work and Well-being’, to protect and improve the health and well-
being of working age people. In April 2010 the ‘Fit note’ was launched and there are
currently well-being and work pilots being run across the country under this initiative.
The Government’s long-awaited mental health and employment strategy, ‘Working our
way to better mental health’, has been released and we have seen the publication of the
M e n t a l H e a l t h a n d D i s c r i m i n a t i o n 187
Perkins Review – ‘Realising Ambitions’. There has never been a clearer direction for mental
health and employment, and we are already starting to see some of the changes that
have been recommended including mental health coordinators placed in Job Centres.
After campaigning from organisations such as Mind and Rethink, the new Equality Act
2010 is a big step forward and includes welcome changes relating to discrimination and
employment. It has removed the employer’s right to ask health screening questions on
pre-employment questionnaires. Although we are in a period of uncertainty relating to
the new government’s position on health and business, the future for mental health and
employment still seems stronger than ever before.
The Law has Changed but has the Workplace?

Changes in the Disability Discrimination Act 1995 and its 2005 update have meant that
people with mental health problems have more rights at work than ever before. The legal
framework can be used to bring about positive change for people with mental health
problems at work. However, the reality of work for people with mental health problems
has not significantly improved.
Mental health problems considerably increase the risk of leaving employment compared to
other health problems (Burchardt 2003). Over the past 10 years, the proportion of all claimants
of incapacity benefits who are claiming because of mental health problems has risen from
26% to 40% and it has overtaken musculoskeletal disorders as the commonest cause. This
has happened because whilst the total number of new claimants has fallen, the number with
mental health problems has stayed the same. The reasons for this are unclear.
(Royal College of Psychiatrists, 2008: 18)
While the reasons for the current situation seem to be ‘unclear’ according to the
Royal College, I believe they are quite simple.
Mental Health at Work – The Elephant in the Room
Recent data on attitudes to mental illness shows that people tend to underestimate the
proportion of those who experience mental health problems:
The actual lifetime incidence of mental health problems is estimated to be around 1 in 4. […]
A quarter of respondents (24%) thought the proportion was 1 in 10, with 41% of respondents
thinking it was less than this.
(Office for National Statistics 2009: 42)
According to the Shaw Trust:
Around three in every ten employees will experience stress, depression or some other form of
mental health in any one year. Around one in four people will experience mental ill-health
at some point in their lives. Yet only around 17 per cent of employers recognise this national
average is likely to apply to their people.
(Shaw Trust 2006)
The costs to employers, according to the Sainsbury Centre for Mental Health, are
staggering:
• £8.4 billion a year in sickness absence. The average employee takes seven days off sick
each year of which 40 per cent are for mental health problems. This adds up to 70
million lost working days a year, including one in seven directly caused by a person’s
work or working conditions.
• £15.1 billion a year in reduced productivity at work. ‘Presenteeism’ accounts for 1.5
times as much working time lost as absenteeism and costs more to employers because
it is more common among higher-paid staff.
• £2.4 billion a year in replacing staff who leave their jobs because of mental ill health.
(Sainsbury Centre for Mental Health 2007: 1).
Our knowledge of the scale and cost of the issues around mental health at work has
never been better. The legal framework has never been stronger, yet the situation remains
the same. I believe this is because in practice attitudes, behaviours and skills at work have
not changed. The law does not allow discrimination, people do. However, the recent
change to ban pre-employment health questionnaires, mentioned above, marks a strong
legal step in the right direction.
Changing your Mind: A New Definition of Mental Health
We can’t solve problems by using the same kind of thinking we used when we created them.
(Albert Einstein, attrib.)
Whether you are an employee, manager, business leader or someone who is thinking
of applying for work your attitude towards your own or others’ mental health is pivotal.
Much of the reason for stigma and discrimination around mental health, whether in
or outside the workplace, is to do with how it is understood and perceived. In order to
empower employers and individuals to break through the barriers we must unite them
through a common understanding of mental health. This is how the World Health
Organisation (WHO) defines mental health:
Mental health is more than the absence of mental disorders. Mental health can be conceptualized
as a state of well-being in which the individual realizes his or her own abilities, can cope
with the normal stresses of life, can work productively and fruitfully, and is able to make a
contribution to his or her community.
(WHO 2007)
This way of viewing mental health has the following key points that are important
for anyone in any workplace to consider:
• We all have mental health;

• we all aspire to maintain good mental health;
• mental health can be seen as a continuum that fluctuates;
• mental health relates hugely to environmental effects and changes in peoples’ lives;
and
• good mental health is more than the absence of a ‘disorder’.
The WHO definition describes an aspiratory state that binds people together. Once
we have a clear idea of what good mental health is it becomes easier to see mental health
problems as part of the human condition. In a way the challenge is simple. The WHO
definition of good mental health is how most people would instinctively view their
physical health. The ideological shift that will lead to the biggest change in discrimination
is to view physical and mental health in the same way. Modern life is peppered with
phrases like ‘I’m a bit out of shape at the moment, I’ll have to get down to the gym’ or the
traditional Christmas guilt ‘I was terrible this year, I’m not going to drink for a month,
and I’m giving up red meat.’ Clearly most people aspire to good physical health as a form
of self-improvement – and preservation. Mental health can, and should, be thought of
in the same way.
Bringing People Together: The Continuum of Mental Health

The spectrum, or continuum, of mental health is a key conceptual step in breaking down
discrimination. We all make evaluations on our state of well being. These judgements
do not tend to be binary, that is, today I am perfectly healthy, yesterday I was perfectly
unhealthy. Health is instinctively perceived as being incremental with some points on the
spectrum of health requiring interventions from medical professionals. The continuum
of mental health applies the idea of gradual shifts in health to mental health. With this
in mind I define a mental health problem as:
A more than temporary state of mind that has an adverse affect on our ability to function on
a day-to-day basis.
The point at which mental health has deteriorated to the stage where day-to-day
function is impaired is where, certainly in relation to the DDA, mental health problems
will become an issue at work and where employers will need to consider reasonable
adjustments (see Foster, Chapter 13).
To summarise: everybody has mental health, sometimes some of us have mental
health problems. The cost to individuals with mental health problems is huge and at
this moment there are literally millions of people experiencing mental distress. Ending
mental health discrimination is both an ethical and business imperative.
Stigma, Non-disclosure and the DDA

Although the stigma of mental illness affects many aspects of the person’s life it has the
greatest impact on work (Roeloffs et al. 2003; Gaebel et al. 2005, cited in Royal College
of Psychiatrists 2008).
Stigma and discrimination in relation to mental health is not just a political issue, it
damages health and it damages business. The DDA can act as a lever of change but, as I
have argued, change is moving slowly in the workplace. There are four main reasons for
this:
1. Stigma;
2. lack of mental health knowledge;
3. lack of legal knowledge; and
4. lack of skills and policy framework.
Stigma has very obvious interactions with feelings of shame. According to some
sociologists shame is the social emotion (Scheff 1988) where the ‘socially evaluative threat’
plays a huge part in raising stress levels (Dickerson and Kemeny 2004). The scientists
may have evidenced it, but anyone who has experienced a mental health problem
knows this to be true. As someone who has experienced depression, the added impact
of being perceived as weak or strange simply makes matters worse. It is obvious that
the effects of stigma on a person will have adverse affects on how they feel, but stigma
and discrimination affect work and health. Consideration of stigma and discrimination
around mental health at work must be given both pre- and in employment.
Pre-Employment
Research has shown that people with mental health problems are less likely to apply for
work through fear of discrimination, and also that employers are less likely to employ
them.
Many human resources managers believe that those who have experienced psychiatric illness
will be worse at their jobs and as a result they are more likely to request ‘further information’
if an appointee reveals such a history.
(Glozier 1998)
About half of employers would not wish to employ a person with a psychiatric diagnosis.
(Manning and White 1995)
and
two-thirds of employers in the private sector and in small and medium-sized companies report
that they have never knowingly done so.
(Chartered Institute of Personnel and Development (CIPD) 2007,
all cited in Royal College of Psychiatrists 2008: 7)
Many people with mental health issues have a negative view of the workplace, some
from previous experience, fearing that they be faced with discrimination. This, combined
with feelings of low self esteem and a lack of encouragement and support, can leave many
people feeling that work is simply not safe or possible as an option for them. As a person
that has worked with Hammersmith and Fulham Mind said recently: ‘Work made me ill
in the first place, they didn’t really take the time to understand and frankly didn’t give a
**** about me! Why on earth would I risk applying for anything?’
In addition to this, many people with mental health problems, fearing discrimination,
do not disclose at their interviews or afterwards (MacDonald-Wilson 2005).This means
they are not covered by the DDA and do not get the chance to get adjustments made.
They conceal their disability, as I once did, for fear of being discriminated against. Fear
of and actual discrimination prevents many from applying for work or disclosing at
interview or once in work. By not taking steps to promote a welcoming image and culture
towards mental health, employers are tacitly colluding with discrimination. If we know
that some employers do discriminate against people with mental health issues, if we
know that people with mental health issues are put off from applying by this expectation,
and if we know that people are also afraid to disclose because of stigma, the question is
what can we do about it?
In Employment
The effects of stigma around mental health once a person is in work are just as great. It
is commonly acknowledged that stigma prevents people with mental health problems
disclosing in the workplace (MacDonald-Wilson 2005). This has implications for the
employer and the employee. The employer does not know that the employee has a problem,
in some cases until it is too late, which means that, even if the employer has good support
mechanisms, they cannot assist the employee. This can be a particular problem for line
managers, who may not be able to recognise mental health issues amongst their staff, but
still have to manage the effects of both absenteeism and presenteeism. If managers do
not know the size of the problem any impetus to resolve it is lost. In a workplace survey
conducted recently:
Managers believed that less than 4% of their staff had a mental health problem at any point
in the last year, when their staff were confidentially interviewed over 25% disclosed a serious
mental health problem.
(Hammersmith and Fulham Mind, unpublished)
Non-disclosure also prevents early intervention from taking place and ‘reasonable
adjustments’ being made. It is widely acknowledged that early intervention can
dramatically reduce the effect on the person’s health. However, if through fear of
discrimination, the person does not disclose their mental health problem they cannot
get support. Without support there is a likelihood their health may deteriorate, they may
underperform, and may eventually need to take time off work. Disclosure is therefore vital
when it comes to mental health in the workplace, but what should a manager do when
somebody has disclosed? The following offers some guidance on what steps employers
and managers need to take to safeguard their employees and their business.
Legal Rights, Business Solutions

The DDA covers mental health problems just like any other disability. A mental health
need, like a physical problem, can affect the way a person interacts with the workplace.
The DDA prevents employers from discriminating against people that have a disability
both pre- and post employment, covering recruitment and working conditions.
Reasonable Adjustments
The most important part of the DDA for employers and employees relates to reasonable
adjustments. Once a person has disclosed to their employer they are covered by the DDA,
this means that the employer has a responsibility to make adjustments to the person’s
work or environment that are reasonable, in order to prevent the person’s disability
from excluding them from work. There are two important principles behind reasonable
adjustments, the social model of disability and the ‘business case’, which address both
business and ethical interests.
The social model argues that the ‘problem’ of disability does not lie with the person
who has the disability, but rather it is the social and physical environment that prioritises
the non-disabled that is disabling. For example, if a person with mobility issues cannot
gain access to a building, the argument is that the environment is the barrier, that is,
the lack of access facilities such as a ramp or a lift disables the person. Some of the DDA
embodies the social model.1 It sets out a legal imperative that means service providers
and employers should, where possible, not discriminate or disable people by the services,
roles or environments they provide. Furthermore employers need to adapt the working
environment, via reasonable adjustments, so as not to disadvantage workers covered by
the DDA.
In relation to the business case, the issue is not how much will it cost to make a
reasonable adjustment, but how much will it cost NOT to make reasonable adjustments.
The business case behind reasonable adjustments has many different angles. If the way
your service is provided excludes people with certain disabilities, quite simply you are
losing custom. If the way you recruit people excludes those with disabilities, you are
losing out on a potentially highly motivated and skilled workforce. You are also losing
out on the opportunity to build a workforce that reflects your customer base. If you are
unable to adjust your environment or work to remove barriers for one of your employees
the result is simple. They may underperform, be unable to work, go on sick leave, or
leave. Clearly there are business costs here. The rule is simple. If you can reasonably make
adjustments you will save money, reduce the impact on productivity and become more
resilient.
The Art of Being Reasonable – Working with Individuals who have

Disclosed
Reasonable adjustments can be thought of as either reactive or proactive. A reactive

reasonable adjustment is made when a company or the individual reacts to a specific
change in circumstance or information around a specific person, for example, a disclosure
in the workplace or information on an application form. A proactive reasonable
1 It might be said (see Foster, Chapter 13) that the DDA applies the medical model of disability because people have
to meet Western diagnostic criteria to be covered. However the 2005 update changed that for mental health, specifically
removing the need for it to be clinically recognised. Even if elements of the DDA mean that the diagnosis is made on a
medical model, reasonable adjustments, which are positive actions taken in line with the DDA, are specifically social as
they allow the ‘impairment’ not to be a disability by adjusting the environment.
adjustment is made when a strategic decision has been made to alter the workplace in
order to minimise the adverse impact of health conditions in employees or to promote
better health and well-being amongst staff at work more generally.
Reactive Reasonable Adjustments: Case Study

The following case study, based on an actual case, focuses on making reactive reasonable
adjustments in practice:
Jayne has been off sick with ‘stress-related symptoms’, as indicated by her doctor’s note. In
line with best practice and because he had a good relationship with Jayne, Jayne’s manager
met with her during office hours at a café. They discussed her situation and Jayne disclosed
that she has suffered from depression ‘on and off’ for most of her adult life.
Important points to note here are:
• Jayne is now covered by the DDA as she has disclosed her disability. Had she
pretended, for example, that she had a stomach bug and came back to work early
on a self-certified sick note the employer would not have been able to help.
• Jayne had a trusting and open relationship with her line manager. In this instance it
was this that enabled her to disclose her disability.
Jayne’s line manager asked what, if anything, the company could do to support her, how her
symptoms impact on work and whether there are any triggers that he needs to know about.
From this conversation it was established that Jayne felt that her workload was too high
and that she was having difficulty meeting the demands of the job as her depression made
it difficult to concentrate. Furthermore her inability to cope with her workload caused her
to feel even worse, and this adversely affected her depression. Whilst the break from work
had given her some breathing space, she still felt that she was not able to perform and was
worried that the pressure could make things worse.
Jayne’s manager has three imperatives for making a reasonable adjustment:
1. The Disability Discrimination Act: The line manager has a duty to make adjustments to
her workload so that it does not damage her health or exclude her from working.
2. Business imperative: If the same workload is maintained and it is too much for Jayne
she may be totally unable to work and require full sick leave. This leaves one staff
member short and an increased burden on existing team members.
3. Ethical/personal imperative: The manager may consider how he would like to be
treated in these circumstances, or even how he would react if this person were a
friend or a relative that he cared about. Would he be flexible? By being flexible, he
may also gain a sense of loyalty and trust in return.
A series of reasonable adjustments were made for Jayne. She agreed with her manager that
she would not go straight back to full-time work and between them they worked out a
gradual return to full duties with review points. For the first two weeks Jayne worked from
home for a day and came into the office for two days, and Jayne and her manager reviewed
the situation closely. Her time in the office was gradually increased and within six weeks Jayne
was back to full duties.
We Plan for Business, Can We Plan for Mental Health and

Reasonable Adjustments? (Why Parachutes are Important)
Many people with mental health issues feel that they may have recurring episodes. Mental
health, like physical health, can fluctuate. What is needed is the means to intervene or
make adjustments as early and as effectively as possible to minimise the impact on the
employee’s health and the business.
Simple and effective means of doing this have evolved from community mental
health teams and are now being taken up by business. One such tool, developed at
Hammersmith and Fulham Mind, helps to manage disclosed mental health conditions. It
is called the Parachute and is, in effect, a reasonable adjustment for the future. Adopting
a tool like the Parachute is a proactive reasonable adjustment and means that everyone is
better prepared and empowered to manage mental health.
The Parachute is a form that can fit onto one side of A4 paper with a series of
simple questions that can be answered by the employee individually or, better still, in
conversation with the line manager. I here use anonymised but real examples from the
workplace to show how the Parachute can work.
The Parachute: A Tool for Discussing Mental Health Conditions
Q1. Can you describe, in your own words, what your mental health condition is?
How does it affect you?
Here you are looking to establish a common understanding of the person’s mental health
issue. Line managers don’t have to be clinicians, and often the person with the mental
health issue is the expert. This question allows a conversation that gives the manager an
understanding of how the mental health condition affects the person, and how it affects
their work. This is important because people are affected by conditions in different ways. An
example might be:
‘I’ve been diagnosed with Bi-Polar disorder, I haven’t had a serious episode for a while, but
I do get down sometimes. I very rarely get high but when I do it doesn’t tend to last very
long, it’s mainly the down periods that affect me ...’
Q2. How would I notice if your health was deteriorating?
Mental health specialists, clinicians and people with their own experience of mental distress
may recognise the early indicators of a decline in health in others. However, different people
are affected by these in different ways. By finding out what the early signs are it is possible
for the employee and the employer to work together to minimise the impact of an episode
or prevent its occurrence. An example response here could be:
‘If you hear me mention not sleeping very much or I seem a bit more “up beat” than usual,
it could be a sign of an “upswing”. I might be a bit more over-confident also – maybe a
combination of tired but elated ...’
Q3. What should we do about it?
This is the final and most important part of the Parachute. The question allows us to take the
best next steps but also share responsibility if possible. When thinking about these steps, we
really need to think about how the person’s condition interacts with the workplace, what
support mechanisms are available in and outside the workplace, and what steps would both
the employer and employee feel comfortable taking. The response could be something as
simple as:
‘...in the first instance just mention it [my change in behaviour] to me, it might just be a one
off and a mention might be the right thing. Last time I felt something was changing I went
to see my GP who gave me some medication to help me sleep – it seemed to work fine.’
In an open way we also need to be prepared for what happens when that isn’t enough, the
next set of potential steps could be:
‘If you’re still worried about me then, I am happy for you to get in touch with my brother,
who knows me well and he’s pretty good and supporting me in these situations.’
For some people these steps may be enough, but depending on the anticipated set of needs,
a GP contact or community mental health team may also be a good idea.
The answer to this question can also start discussion about reasonable adjustments that may
include changes to tasks or hours:
‘It would probably be better if I took some time out of the office at this point and focused
on my health, but I wouldn’t like to leave it for too long. To begin with we might see if
there was a small amount of work I could do from home, but it would almost certainly be
a good idea to reduce my hours ...’
Changing the Culture: Proactive Reasonable Adjustments

The stigma associated with mental health problems can make disclosure very difficult for
individuals. In order for an individual to disclose such problems they need to be confident
that they will not face further discrimination and will be supported and understood. This
involves influencing the culture of the organisation and up-skilling staff.
An environment that is openly supportive encourages people to disclose, and/or to
get help internally or externally. An oppressive culture in which people feel they will
be judged, rather than listened to, keeps the problem hidden and not dealt with. A
healthy workplace culture would enable employees facing mental health problems to feel
confident enough to ask for support or adjustments and be confident that there would be
an appropriate response. Managers therefore need to communicate to employees that the
organisation cares about health, and mental health, and that ‘feeling stressed’ or having a
mental health problem is part of life – it is not a sign of weakness. There is a vast amount
of anti-stigma and learning materials available to managers from ‘Time to Change’, Shift
and Mind, as well as from the Chartered Institute of Personnel and Development and
the Health and Safety Executive (see ‘Further Information’ below). Buy-in from the top is
vital: ‘Senior management buy-in is also fundamental to success. Leadership goes beyond
endorsement of programmes and involves active and visible participation of senior
management in health and well-being programmes’ (Black 2008: 55).
Failing to address poor mental health is not only discriminatory but is also costly.
The case for mentally healthy workplaces is both a business and ethical imperative. If
disclosure is key, so that the employer can assist the individual, how do you begin to build
trust? A well-being campaign can be a good start (the Business in the Community website
has practical examples and case studies, see ‘Further Information’). Employers have
found that: ‘intermediate business benefits include reduced sickness absence, reduced
staff turnover, reduced accidents and injuries, reduced resource allocation, increased
employee satisfaction, a higher company profile, and higher productivity.’ (Black 2008:
54) At the very least, employers should put in place a mental health, stress or well-being
policy to reassure managers and staff by having practice and guidance clearly written
down (for details of advice and guidance from Mind, the CIPD and HSE see ‘Further
Information’).
Mental Health Awareness Training
Good mental health awareness training will help staff to gain an understanding of their
own and others’ mental health. A useful outcome is also that staff feel more valued by
the organisation, because it is sending out a message it values people’s mental health and
their personal well-being, which can improve employee engagement and morale.
Staff can also learn how to better manage and understand their own mental health.
Good training should also include references to the organisation’s own resources for
support such as occupational health or an employee assistance programme. Good training
should also give staff ideas on where to look for support externally.
From experience of conducting training, we at Mind know that as a result staff are
more confident to recognise changes and symptoms in others’ mental health, which
brings the organisation one step nearer a ‘psychologically confident’ environment. A real
commitment to addressing ‘the elephant in the room’ would include mental health or
well-being in the organisation’s induction programme.
Training programmes that specifically enable staff to manage the mental health
of others are also important. These training programmes should include components
around basic mental health awareness, internal and external pathways and a strong
emphasis on communication. A literature review conducted by Michie and Williams
(2003: 7) shows that early referrals to occupational health can significantly reduce
sick leave, and also that communication training can be successful. Research shows,
therefore, that providing help early is vital for preventing a deterioration of health and
the resultant absences.
The Role of Line Managers
Line managers are at the forefront. They are often blamed for either causing poor
mental health amongst staff or allowing it to develop. However they are also the key
to improvements in the workplace, and need to be supported and trained in advanced
people management, for example, using the Health and Safety Executive (HSE) line
management standards, which can support them to manage mental health. The HSE’s six
line management standards, with the backing of the CIPD, cover the following:
• Demands – this includes issues such as workload, work patterns and the work
environment;
• control – how much say the person has in the way they do their work;
• support – this includes the encouragement, sponsorship and resources provided by
the organisation, line management and colleagues;
• relationships – this includes promoting positive working to avoid conflict and dealing
with unacceptable behaviour;
• role – whether people understand their role within the organisation and whether the
organisation ensures that they do not have conflicting roles; and
• change – how organisational change (large or small) is managed and communicated
in the organisation.
The organisation needs to be able to support line managers to manage in the above
way. The standards should assist managers to avoid being a contributory factor to poor
mental health.
Emotional intelligence is also vital for line managers. Managing with emotional
intelligence means having the capacity, insight and skill to identify, assess and manage
your own and others’ emotions. If this is combined with some practical skills, and
increased mental health awareness, then managers should be able to recognise declines
in mental health but also feel confident to do something about it. Using the Parachute
tool should take the uncertainty and fear out of the situation and allow managers to feel
confident about managing mental health.
An Occupational Health Department can work more strategically with line
managers. Often occupational health staff are only involved when an individual’s
health has substantially deteriorated and they may be involved in complex HR issues.
If the organisation has an employee assistance programme (EAP), this should be widely
publicised. One company I have worked with found that an 80 per cent increase in use of
EAP was followed by a 40 per cent reduction in bullying and grievances.
Conclusion – Summary of Key Points

• Everyone has mental health.
• Around five million people in work will be experiencing stress and mental health-
related problems.
• Combat stigma – create more open workplace through a communications policy.
• Make adjustments – it is cheaper to make a reasonable adjustment that not to.
• Change the way people work – adopt the HSE standards.
• Invest in your people – train your managers to recognise and manage the problem.
• Use some tools, find a Parachute. Empower your managers, support your employees.
• Never underestimate basic people management skills and communication, and
managing with emotional intelligence is important.
Further Information
The Chartered Institute of Personnel and Development (CIPD)
This organisation provides resources on mental health and work, http://www.cipd.co.uk/

subjects/health/mentalhlth
The Health and Safety Executive (HSE)
The HSE has produced extensive information on workplace stress, www.hse.gov.uk/stress
Mind
A service for employers around mental health, www.mind.org.uk/workplace http://www.

mind.org.uk/help/rights_and_legislation/disability_discrimination
Sainsbury Centre for Mental Health
The centre provides huge amounts of information and reports on the area of mental
health and work, http://www.scmh.org.uk/employment/index.aspx
The Shaw Trust
The Shaw Trust provides practical tips for employers, http://www.tacklementalhealth.org.uk
Shift
A mental health anti-stigma campaign providing employer and employee resources

http://www.shift.org.uk/
A Time to Change
Mental health anti-stigma campaign, http://www.time-to-change.org.uk
References
Black, C. (2008) Working for a Healthier Tomorrow: Dame Carol Black’s Review of the Health of Britain’s
Working Age Population, London: The Stationery Office.
Dickerson, S.S. and Kemeny, M.E. (2004) ‘Acute stressors and cortisol responses: a theoretical
integration and synthesis of laboratory research’, Psychological Bulletin, 130:3, 355–391.
MacDonald-Wilson, K.L (2005) ‘Managing disclosure of psychiatric disabilities to employers’, Journal
of Applied Rehabilitation Counselling, 36:4, 11–21.
Michie, S. and Williams, S. (2003) ‘Reducing work related psychological ill health and sickness
absence: a systematic literature review’, Occupational and Environmental Medicine, 60:1. 3–9.
Office for National Statistics (2009) Attitudes to Mental Illness 2009, Research Report, London: Office
for National Statistics.
Royal College of Psychiatrists (2008) Mental Health and Work, London: Royal College of
Psychiatrists.
Sainsbury Centre for Mental Health (2007) Mental Health at Work, London: Sainsbury Centre for
Mental Health.
—— (2009) Removing Barriers, The Facts About Mental Health and Employment, London: Sainsbury
Centre for Mental Health.
Scheff, T.J. (1988) ‘Shame and conformity: the defence-emotion system’, American Sociological
Review, 53: 395–406.
Shaw Trust (2006) Mental Health: The Last Workplace Taboo, The Shaw Trust, http://www.shaw-trust.
org.uk
WHO (2007) Mental Health: Strengthening Mental Health Promotion, Fact sheet No 220, http://www.
who.int/mediacentre/factsheets/fs220/en/
Age
15 Demographic Change
chapter
and Implications for

Workforce Ageing in
Europe
ANDREa WINKELMaNN-GLEED
Introduction
Despite differences between European Union (EU) member countries, most experience
demographic change characterised by a decrease in mortality and fertility rates leading
to a growing proportion of older people with effects on the working population. As the
baby boom generation, born in the middle part of the twentieth century, approaches
retirement age, larger cohorts of workers will be retiring while the numbers of new labour
market entrants will be insufficient to replace them. Social stability, physical security,
improved living conditions and economic as well as medical progress have contributed
to longer life expectancy and improved quality of life (Commission Communication
2006). As a result, a major labour shortage is expected, which will pose a serious
threat to macroeconomic performance and competitiveness, despite productivity and
technological advances (Villoso et al. 2008). It is argued that free movement of labour
across EU member countries has further affected the demographic situation (Pollard et al.
2008), leading to a decline in the proportion of people in work in many regions of the EU
(De Jong and Eding 2000).
To address this, the EU has set employment targets for older people, aiming to raise
their participation in the labour market. In terms of the legal framework, despite existing
European and national anti-discrimination legislation on age, the law is embedded in
wider good employment practice to varying degrees in the EU countries. In addition to
the economic and legal framework, intrinsic, non-financial, arguments which relate to
the deeper meaning of work1 also shape the discussion on how the quality of work should
encourage prolonged workforce participation. Hence an EU taskforce on employment
called on Member States to consider key measures related to incentives, lifelong learning
1 Frederick Herzberg, who studied motivation in the 1960s, found that feelings of accomplishment, personal
challenge, increased responsibility and belonging were among the strongest intrinsic rewards in organisations.
and the work environment (Age Concern 2008). Demographic change poses a number of
challenges to governments, employers and trade unions:
• How sustainable are social security, health care, pensions and retirement plans
systems?
• How can employment skills be maintained in the workforce?
• How can the marginalisation of older workers through discrimination and stereotypical
perceptions be prevented?
The demographic situation may also pose dilemmas for individual older workers
whose voices are often overlooked. Some workers will desire early exit from the labour
market; others desire greater flexibility; some will be too ill to continue in work or are
pushed out of the labour market while others have to continue for financial reasons.
These push and pull factors highlight the complexity of work-related and non-work-
related decisions about staying in or leaving employment. Currently it seems that ‘free
choice’ to continue in some form of work beyond statutory retirement age (SRA) is left to
those who are financially secure, well-educated and with managerial, transferable skills
(Commission Communication 2006).
This chapter has three aims:
1. To highlight the key issues and context of demographic change in Europe.

2. To draw attention to some of the push and pull factors related to labour market exit.
3. To provide some good practice examples of how these can be managed.
The chapter draws on a European research project, Creative Approaches to Workforce

Ageing (CAWA),2 to highlight that more could be done to address the push and pull
factors. Deeper understanding of the role of work as one contributor to overall quality of
life is required in order to offer more workers over the age of 50 a realistic opportunity
and choice to continue being economically active.
Europe’s Demographic Situation

The current figures show that while average life expectancy has increased by eight to
ten years since the 1950s, there are significant variations between the old and new EU
Member States. For example, a 60-year-old woman can now expect to live to 85.3 years
of age in France, 6 years longer than in Bulgaria (to 79.3 yrs). A 60-year-old man can
expect to live to 80.7 years of age in Spain, 5.4 years longer than in Latvia (to 75.3 yrs)
(Eurofound 2007).
This increase in life expectancy is leading to an increase in the population between 55
and 60 years of about 1.4 per cent between 2002 and 2010. As a result, by 2050 as much
as 20 per cent of Europe’s population could be above 80 years of age (Age Concern 2008).
2 Creative Approaches to Workforce Ageing (CAWA): European Social Funding (ESF) Art 6 funded project: 2005–2007
had the following aims: raising awareness of demographic change and workforce ageing; and developing a ‘Good Practice
Guide’ based on organisational case studies and discussion workshops. Countries involved: Austria, Spain, Sweden, UK,
Bulgaria. Coordinated by the Working Lives Research Institute (WLRI), London Metropolitan University: http://www.
workinglives.org/wlri-project-websites/cawa-en/cawa-en_home.cfm
D e m o g r a p h i c C h a n g e a n d I m p l i c a t i o n s f o r Wo r k f o r c e A g e i n g i n E u r o p e 205
This leads to predictions that Europe’s old-age dependency ratio – the number of people
aged 65 years and above compared with the number of working-age people (15–64 years
of age) – will more than double by 2050 from 1:4 to 1:2 or even less. Today with at least 16
per cent of the population over 65 years old, Europe has the highest proportion of older
people in the world, higher than the US and other developed nations (Haub 2007).
Yet, these predictions are precarious as Europe’s demographic change is also influenced
by migration. Migration figures are composed of first, out-migration of young, skilled
workers who move temporarily or permanently, particularly from the new accession
countries, to work abroad. For example, Poland saw many skilled workers migrating to
Great Britain or Ireland. If not reversed, this trend could lead to a lack of skilled young
personnel in socio-economically emerging regions of the EU (Pollard et al. 2008). Second,
net immigration into Europe is projected to increase even leading to overall population
growth in Europe and delaying the predicted population decline until 2035. It is estimated
that in 2008 at least 1.6 million more people migrated to the European Union than from
it (European Commission 2008) and such numbers of mainly young people coming into
the EU has positive effects on the age dependency ratio. However, these effects are small
and as Vos et al. (2008) have calculated, much higher number of immigrants would be
required to reverse the trend. Based on figures from the most recent European Commission
(2009) Ageing Report, the population of the EU as a whole would be slightly larger in
2060 than today, but half of the population will be aged 48 years or above.
While the effects of demographic change on workforce ageing are currently still a
predominately European issue, it will soon affect the whole of the developed Western
world characterised by high proportions of populations over 60 years of age by 2025.
This population ageing will affect health expenditure leading to a reduction in overall
employment rates as well as an increase in the proportion of older workers in the EU15
(Jimeno 2004). Thus the demographic shift calls into question both the sustainability of
pension systems and the future of Europe’s labour supply (Villosio et al. 2008). Cowell
(2004) called this the ‘timebomb’ threatening European pensions. Adair Turner’s (2004)
report on UK pensions concluded that in order to afford continued, guaranteed pensions,
generations after the baby boomers will have to save more, pay higher taxes and work
longer. Others (Roseveare et al. 1996; Fougère and Mérette 1998; and Grant et al. 2004)
have stated that unless changes in labour force participation patterns take place, the rise
in public health expenditure associated with ageing would increase the fiscal burden and
public debt.
Currently in the EU15 (the EU Member States before enlargement in 2004), the
employment rate for older workers, aged 50 to 65 years of age, is only around 40 per
cent, with 50.1 per cent for men and 30.5 per cent for women. This implies that, within
the EU15 the majority of over 50-year-olds are economically inactive. The European
Commission has forecast that by 2030 the whole of the European Union will face a
shortage of some 20.8 million people of working age. While high proportions of older
people are not working, the implication is that part of the labour shortage could be met
through delayed retirement.
Europe has, therefore, developed policy responses, such as the Lisbon European
Council of 2000 (Lisbon Council 2000) and the Stockholm European Council of 2001
(Stockholm European Council 2001), which have agreed strategic aims to strengthen
employment, economic reform and social cohesion in a knowledge-based economy.
The principal goal is to increase the average employment rate of older people aged 55–64
years to 50 per cent.
More understanding of push and pull factors related to labour market exit is required
to facilitate an extension of older people’s working lives in order to reach these targets.
This involves addressing current evidence that older workers face discrimination related
to recruitment when trying to access work after redundancy or when trying to change
employers (Acas 2006). A recent UK documentary programme highlighted this: a father
and daughter, both offering their services as accountants approached recruitment
agencies. While the young and inexperienced daughter was offered interviews and
received calls from other agencies, the father’s application was ignored (‘Too Old to
Work’, Dispatches, Channel 4, 9 February 2009). It further involves addressing issues that
some older workers could be expensive in terms of salary and pension and perceived
costs of potential sick leave, loss of productivity and lack of adaptability to change
(Phillipson and Smith 2005).
The 2000 Employment Directive on Equal Treatment Article 13 required all Member
States to introduce national legislation outlawing direct and indirect discrimination on
grounds of age, sexual orientation, religion and belief, and disability by December 2006
(European Commission 2005). Yet current legislation on age has been criticised for being
driven by the objective of increasing productivity among older workers (Meadows 2003).
While Member States have complied with the introduction of national anti-discrimination
legislation, this is embedded to varying degrees in day-to-day working practices. For
example, in Austria less than a third of all over 55-year-olds are in employment. The
Austrian government introduced Altersteilzeit,3 enabling older workers to reduce their
working time with proportionately smaller loss of earnings (AMS 2006; Heuberger 2004).
However, as costs exceeded the budget, numbers of beneficiaries decreased and the
national social security system still supports early retirement. By comparison, parts of the
Swedish labour market are characterised by embedded good practice in relation to the
employment of older workers. Moreover, the Swedish trade unions, representing 85 per
cent of the workforce, engage actively with the debate on demographic change. While
some EU Member States such as Sweden have started to integrate policies and practices
facilitating extension of working lives, others still hold on to a bygone era of funded early
retirement (Ehrman 2009).
In the UK age discrimination legislation was introduced in October 2006, however,
Regulation 30 allows employers to set a mandatory retirement age of 65 years (Bytheway
2007; Keldusild 2009), something that is widely viewed as age discrimination (MacGregor
2005 and Munroe 2005, cited in Ibbott et al. 2006: 171). While the Regulation gives
employees the right to request to work beyond the SRA, employers are not legally bound
to grant such requests. Moreover, any decision on extending working life does not have
to be based on an evaluation of the competency of the individual and is not tied to any
qualification or occupational requirement (Gunderson 2003). Not only does this seem
contrary to initiatives aimed at extending working life, maintaining a default retirement
age legalised employers’ ability to discriminate against older workers and confirms that
views on age discrimination have not changed as much as those on gender and race
3 ‘Partial retirement’: Employees over the age of 55 years are being offered the opportunity to work part-time as a
transition into retirement.
(Loretto et al. 2007; Walker 2006). The operation of the right to request to work beyond
65 is considered in greater detail by Matt Flynn in Chapter 17.
Retention of Older Workers

Much of the literature on the urgency of managing ageing in the labour market is driven
by economic arguments (Henkens et al. 2008; Adams and Beehr 2003). Yet, intrinsic,
non-financial, arguments shape the discussion on how workers can be encouraged to
remain in the labour market. A prerequisite is increased job quality and sustainability
over the lifecycle in order to match work with individual quality of life. An EU taskforce
called for Member States to consider the following key measures:
• Incentives for workers to retire later and for employers to hire and retain older workers.
• Access to training for all regardless of age and to develop lifelong learning strategies.
• Improvement in the quality of work to provide attractive, safe and adaptable work
environments throughout the working life, including the provision of part-time work
and career breaks.
These recommendations emphasise key policy areas, such as flexible working and the
management of ill-health, which have been stressed in the existing literature (Disney and
Hawkes 2003) as being important in providing a non-discriminatory working environment
for people of all ages, as well as facilitating the extension of working beyond retirement
age.
This chapter looks at work as one aspect of overall quality of life and thus draws on the
organisational behaviour literature and particularly the concept of ‘commitment to stay
in work’ (Meyer and Allen 1997). Meyer and Allen point out that one can be committed
to stay with an organisation for a number of reasons without necessarily identifying with
what the organisation symbolises: people may stay because they need the financial security,
expressing ‘continuance commitment’; and if employees have received support in the past,
they may feel a moral responsibility to stay, expressing ‘normative commitment’ to the
organisation. Therefore ‘just’ staying in work can adversely affect morale, performance,
overall productivity and lead to absenteeism. From an employer’s perspective, ‘affective
commitment’ among workers is the most desirable, as it describes employees who are
committed because they identify with what the employing organisation stands for
and freely associate themselves with that organisation. The concept of organisational
commitment offers an understanding of the underlying motives for why a person would
remain in work, thus stressing that older workers’ continued employment should above
all be based on free choice and fair treatment. Work needs to be balanced with other
personal commitments and, apart from the economic benefits, continued employment
beyond retirement age is reliant on work impacting positively on overall quality of life.
Motivations to Extend Working Life
Drawing on the case studies conducted as part of the CAWA project, this section begins
with the employers’ position, before examining workers’ motivations to extend their
labour market participation and ending with comments related to the trade unions’
position. From the employers’ perspective, training and development are important
throughout the lifecycle of employment and the contribution made by older employees
through their skills and experience is acknowledged within highly-skilled employment
sectors. The focus of employers in relation to older workers is two-fold: on the one hand
individuals need to develop their skills in order to maintain competitiveness in the labour
market and on the other hand older workers can act as resources for skill transfer between
the generations.
The CAWA case studies show that employers in high-skilled sectors, such as teaching,
engineering, skilled construction work and banking argued that retaining older workers
could be more cost-effective than recruiting and retraining a new person for the same
post (CAWA 2008). Some employers also referred to older workers as being more reliable,
dedicated and stable. In this context, older, accomplished workers can benefit the
businesses by transferring their knowledge to younger, less experienced workers or new
members of staff. This can be facilitated through formal or informal mentoring schemes.
At the same time, older workers themselves need to maintain their competitiveness
through regular training, in particular, related to technology skills.
As employee diversity increases, some companies are eager to promote a public image
of being a non-discriminatory employer. Even though there is little empirical evidence
that clients prefer to receive services from workers who match them in terms of age, gender
or ethnicity, employers cited this as a business reason for employing ageing workers as
their customers become older. Achieving this requires employers to invest in retraining or
job redesign throughout the life cycle of work.
Ahead of the introduction of age discrimination legislation in the UK a number of
companies implemented specific initiatives aimed at recruiting older and/or long-term
unemployed workers with the objective of training them for existing jobs. While this
affected relatively few individuals, the fact that such programmes received considerable
publicity allowed them to be seen as ‘good practice examples’, contributing to raising
awareness of the issues of long-term exclusion from the labour market due to age,
ethnicity or social status.
In contrast, in low-skilled sectors, employers generally seemed more hesitant to invest
in retention, stating that higher salary cost related to the employment of older workers
makes it economically more viable to employ younger employees. In sectors such as retail,
packaging, hotels, catering and restaurants little training and induction was required and
there was no incentive to address the high staff turnover. For that reason, these sectors
employed a low proportion of workers over the age of 40 (CAWA 2008).
Older workers’ intentions to remain in work seem to fall into the following three
categories:
1. those workers who have lost motivation and plan to retire;

2. those who have to continue in work, mainly for financial or social reasons, but want
to retire as soon as possible; and
3. those who want to remain in employment but under more flexible working
conditions because they intrinsically enjoy their work or the working environment,
including the interaction with colleagues.
A range of personal issues affected retirement plans and employers and policymakers
need to take these into consideration in order to manage workforce ageing successfully:
• financial obligations, including mortgages, providing for dependent relatives or

subsidising pension shortfalls;
• caring responsibilities for children or ageing family members;
• considerations related to a partner’s employment;
• the level of state social security provisions;
• loyalty in small, family-run businesses;
• levels of control and free choice;
• intrinsic enjoyment of a career;
• work affirming individual significance;
• social relationships formed at work and the collective aspect of some jobs;
• views of work as a social responsibility and wider contribution to society;
• level of experienced work-related stress;
• offers of flexible working, such as ‘step-down’ options, phased retirement, annualised
working hours; and
• offer of a change in role with less responsibility or fewer unsociable working and ‘on
call’ duties.
Constructive management of these aspects of work could enable extended participation

in the labour market, leaving individuals to experience work as satisfying, enhancing
their overall well-being.
The trade union perspective on extending working lives seemed weighed down by a
long history of arguing for early retirement. While there is a growing awareness within
the union movement of the importance of managing demographic change, for some it
was still difficult to switch perspectives to engage in bettering options for older workers to
remain in work. Furthermore, many retired members tend to give up their membership,
as their loyalty often does not extend beyond the workplace into the wider, political
agenda. Thus the emphasis among the trade unions was to stress the importance of
offering workers a real choice to stay in work or to quit, rather than forcing individuals to
extend their working lives because of shortfalls in funding retirement pensions.
Balancing Work with Non-Work-Related Activities
This section provides examples of practices related to flexible working in order to balance
work with non-work interests among staff. According to the latest European Commission
demographic report, the majority of men aged 55–64 years in work were working 40
hours or more per week, whereas, in most Member States, only a minority of women
worked so many hours. Even though the proportion of part-time employment among
older workers was higher than among younger workers, particularly for older men below
the state retirement age, typically the choice is between full-time work and complete
labour market exit. Thus the latest statistics indicate a lack of flexible working and gradual
retirement options (European Commission 2008).
Yet, as the interviews with older workers as part of the CAWA project have shown,
the choice over working hours and maintaining a meaningful work–life balance seems to
become more significant as people grow older. A range of personal and workplace factors
influence individual employees’ employment needs and hopes. In order to successfully
combine non-work-related commitments with employment, the availability of part-time
and flexible working are essential if retention is to be achieved.
Some companies want to be seen by the public and their customers as being socially
responsible, and part of this includes actively promoting the values older workers are
adding to their organisation. Others may offer flexible working arrangements aimed
at older workers, yet uptake can be very low and compromised by a cut in salary or a
reduction in status within the organization.
Case 1: UK Public Healthcare
In the UK public healthcare service, National Health Service (NHS) employers are aware
of an increasingly ageing workforce, particularly among sections of the nursing staff. NHS
management bodies have recommended a wider implementation of flexible working
arrangements by NHS Trusts partly as a response to this. Currently a high proportion of
nurses chose to retire from full-time work as soon as possible and those wanting flexibility
in their working arrangements sign up with either an external nursing agency or a hospital-
based nursing bank. This arrangement can offer the individual some choice and control over
when and how long to work for, as this 56-year-old female NHS manager stated: ‘a lot of our
Afro-Caribbean nurses are retiring right now, … and a lot of them signing on as bank nurses
when they retire. And then they come back and do, as and when, one or two days’.
In the past bank nurses used to be people who wanted to do the occasional extra shift in the
evenings or at weekends to earn extra money. Nowadays, some employers use agency staff
to cover vacant posts, keeping services running without employing staff on a full employment
contract (Tailby 2005). In 2008 a survey of 20,000 flexible workers showed that many of the
bank nurses were the main breadwinners, had childcare responsibilities or were getting older:
as the NHS workforce is ageing, so is its flexible workforce and in 2008 the average age of a
bank worker was 40 years compared with 33 years in 2005.
(Nursing Times.net 2009)
Case 2: Swedish Electricity Company
Flexible working transitions had been implemented and run for several years by a Swedish
electricity producer and distributor: the so-called ‘80/90/100 model’ gave older workers the
opportunity to work 80 per cent of normal working hours for 90 per cent of normal pay and
a 100 per cent contribution to their occupational (service) pension. Access to the scheme was
available at management discretion and in 2006 was taken up by 165 out of 900 employees
who were at least 58 years old, an equivalent of 20 per cent of all older employees. According
to the company’s calculations the measure was cost neutral as it reduced sick leave and
helped lessen rehabilitation costs.
(Mykletun and Furunes 2007)
Other older people who have worked in management or knowledge-based sectors

may be encouraged to enter into self-employment. In theory self-employment should
offer some older workers a certain element of flexible working, in reality though many
may end up working long hours in order to start up and maintain their business.
This section has highlighted the importance of work–life balance as workers grow
older. With social security provisions that encourage early retirement being phased out,
the working environment needs to be adapted in order to facilitate prolonged working lives
(Molinié 2003; Naegele and Walker 2006). With society as a whole placing a high value on
work, the individual need to feel valued and acknowledged is linked to employment and
can be an important pull factor for continuing in work. Thus, if managed constructively,
work contributes to perceived quality of life. The ability to combine work with personal
circumstances will determine continued labour market participation for those workers
who are able to choose, while others’ financial needs force them to continue working.
Workplace Design and Ill-Health
Work organisation and workplaces should be designed in such a way that all employees
can achieve full working lives (McNair et al. 2004). Generally, older workers who stay
in work are more likely to be working part-time and suffer ill-health, such as musculo-
skeletal disorders, stress and mental health conditions, and particularly those working in
manual jobs desire early exit from the labour market (Barnes et al. 2009; Black 2008). Yet
recent Equality and Human Rights Commission (EHRC) research showed that, contrary to
common perception, 60 per cent of older workers said they were as physically capable now
to perform their jobs as they were when younger (Smeaton et al. 2009). While workers in
some sectors may be more prone to specific types of illnesses, employees in all sectors and
of all ages can be affected by forms of ill-health, long-term sickness or disability and the
management of workplace design requires clear preventative policies. These need to be
adjustable to individual circumstances and based on consultation with individuals and
trade unions, particularly as workers get older and physical strength may be reduced. Job
design further focuses on health-related issues and is particularly important in physical
and manual jobs which have high attrition rates and costs related to ill-health.
In some sectors requiring a high level of physical fitness, the cost of sick leave as a result
of work related ill-health among older workers could impede their employment (Molinié
2003; DWP 2004). More commonly, employer’s fear of potential sick leave combined with
perceived loss of productivity with age inhibits extension of working lives (Phillipson
and Smith 2005). Thus the focus needs to be on preventative measures, promoting good
health throughout the lifecycle. While health and safety training, including physical
handling is mandatory in many sectors across Europe, more proactive measures could
include provision of occupational health assessments, support of physical exercise and
healthy eating programmes. This could involve the provision of good staff canteens or
vending machines offering healthy snack options; rest places at work where shift working
requires staff to take their rest near their workplace; subsidised membership of gyms and
health clubs; education about health and fitness and support for staff suffering from
mental health problems related to stress at work.
Case 3: Swedish Construction Sector
The Swedish construction sector provides an example of how welfare schemes can be
extended to rehabilitate workers on long-term sick leave. Construction work is usually
physically demanding and for many workers it is difficult to continue working even up to
retirement age. Once out of work, the over 50-year-old age group finds it very difficult to
re-enter the labour market, with one in five remaining long-term unemployed (TAEN 2009).
‘Galaxy’ was a rehabilitation programme for unemployed workers and for those employees in
the construction industry who were unable to carry out their work. The Galaxy programme
was a cooperation between the employer’s organisation, trade union and the county labour
board. When joining the scheme, an individual rehabilitation plan was drawn up for the
worker who was then placed in a company where the job was adjusted to take account of the
particular disability. For some this meant re-entering the labour market in a different role or
on adjusted hours. While the scheme was age inclusive, for employers it meant making the
most of the skills and experience older workers were contributing, while saving on the costs
of sick leave.
Conclusions
Within the EU there are significant differences in labour markets, awareness of demographic
change and its influence on social and economic well-being, and the development of
age-friendly policies. Differences imply that any policy solutions have to be specific and
sensitive to the nature of local, regional and national labour markets. While states such as
Sweden are starting to integrate policies and practices, others have only just discontinued
funding of early retirement. In order to foster individual choice, older workers should
neither be forced to continue working nor feel compelled to leave employment. To date,
even where companies across Europe invest in best practices, these are often limited in
scale.
The constructive management of extending working lives for older workers seems to
depend on successful employment relations, involving open and clear communication
with the individual employee. In this context, it is important to monitor the working
conditions of workers approaching retirement age, namely those between 45 and 54 years
old to determine the factors which may lead to their early exit from the labour market.
The Director of the European Foundation for the Improvement of Living and Working
Conditions made the point that it is also important to monitor and improve work
sustainability among young workers, who face a higher incidence of job insecurity (Jorma
Karppinen in: Villosio et al. 2008). Thus if age-related policies are free of discrimination
against workers of all ages, they become part of the overall organisational culture fostering
positive commitment.
While organisational commitment (Mowday et al. 1979) is not always in the interest
of the employer, in sectors, such as small and medium-size employers (SMEs) and highly
professional jobs, it is essential to look after dedicated staff who are willing to make a
positive contribution to the organisation. As demographic change leads to fewer people
in employment, the ability to foster affective commitment among workers will become
increasingly important (Mullins 2002).
There are some overarching concerns: first, employment transitions related to the key
human resources functions, including recruitment and access to training need to be free
of discrimination and based on data resulting from age monitoring; second, the issues
of work–life balance and flexible working need to be addressed in a consultative manner
stemming from dialogue with the individual worker and third, workplace design needs
to be supportive of the needs of all workers in order to prevent and manage ill-health.
In the UK, for example, public funding for workplace training is often focused on
the 18 to 26 age group. Mayhew and Rijkers (2004) point out that access to training
is limited for older workers, particularly those in routine or semi-routine occupations.
An important issue in this context concerns access to new technologies which increase
productivity, but have been found to be biased against low-skilled workers and resulted
in job losses for older workers. Partly because older workers are not given access to the
training and partly because these technologies reduce the number of staff required
(Crépon and Aubert 2003).
Where innovative measures exist, they assist in creating a balance of priorities between
working, living, health and well-being, giving a stronger priority to both physical and
psychological aspects of occupational health. Flexible working policies are one way for
employers to offer improved work–life balance. For employers to engage in innovative
measures to prevent early exit from the labour market seems most applicable in sectors
with limited competition for workers of similar skill levels (Green 2005). Therefore, in
most European countries any good practice guides probably originate in knowledge-based
sectors with low physical demands on workers and a high level of transferable skills.
At work an individual’s effectiveness and well-being are linked to the interaction
between personal identities and work-related ones (Tajfel and Turner 1979). Thus achieving
balance between work and other aspects of an individual’s life is of real importance. For
example, while parents’ right to request flexible working in the UK is well established,
the right to request flexible employment arrangements if an adult is caring for another
adult was only introduced recently in April 2009.4 (Evandrou and Glaser 2004; Loretto
4 http://www.carers.org/news/new-right-to-request-flexible-working-for-carers-of-adults,1570,NW.html
et al. 2005). Existing studies have shown that inflexible working hours can contribute
to pushing workers into early retirement as they interfere with non-work-related
commitments and interests (Penner et al. 2002). While there is no clear evidence from
the existing literature that family-friendly working practices, including flexible working
arrangements, are positively linked to performance (Giardini and Kabst 2008), they are
important in encouraging an extension of working lives.
Another important pull factor for some workers relates to the social aspect of work
through interaction with colleagues. Arnold et al. (1998) point out that understanding of
the area of relationships at work and the impact of workplace socialisation is still limited.
Nevertheless, poor working relationships are seen to be reflected in low levels of interest,
trust and supportiveness and these can negatively affect job satisfaction, motivation and
well-being at work, while supportive relationships can have the opposite effect – thus
forming a push or pull factor.
With ill-health remaining the main push factor leading to early exit from the labour
market (Humphrey et al. 2003; Barnes et al. 2002), workplace design or re-design needs to
be considered as a preventative measure applied in an innovative and non-discriminatory
manner. Companies implementing mentoring schemes do so because they are concerned
about losing the talent that older workers bring to the job, and thus engage in skill
transfer between older and younger workers either formally or informally. Such initiatives
utilise the knowledge, understanding and maturity of older workers, which are shared
with younger workers, increasing their confidence. Other companies offer job re-design
through a role change without compromising pension arrangements. Sectors with high
proportions of manual workers, such as the construction industry, may need to develop
less physically demanding alternatives or work in cooperation with trade unions and
employers’ organisations on rehabilitation programmes. In cases where pay is directly
related to productivity, alternative employment may require the protection of pay and
pensions, avoiding earnings reductions for older workers.
While economic concerns of governments are an obvious driver to prolong working
lives and the concern over pensions has driven much of the debate on demographic
change, this chapter has argued that individual experience related to push and pull
factors needs to be heard and addressed in order to implement extended working policies
successfully. Demographic pressures as well as legal and structural changes in the world
of work mean that increasing numbers of workers will be working beyond the current
SRA and European employers will be forced to adapt accordingly. If Europe manages to
develop coherence and cooperation over these issues, it will have much to offer the rest of
the developed world, as demographic change becomes an increasingly global challenge.
References
Acas (2006), Guidance on Age and the Workplace, London: Acas. http://www.acas.org.uk/index.
aspx?articleid=801
Adams, G.A. and Beehr, T.A. (2003), Retirement, Reasons, Processes, Results, New York: Springer.
Age Concern (2006), The Employment Equality (Age) Regulations 2006, 1 October, http://www.
ageconcern.org.uk/AgeConcern/age_discrimination.asp
—— (2008), Key Facts: The European Union, Older Workers and Employment, London. http://www.
ageconcern.org.uk/AgeConcern/eu_and_employment.asp
AMS (2006), Altersteilzeitgeld [Pensions], Stand 1 January, http://www.ams.or.at/neu/3016_815.htm

Arnold, J., Cooper, C.L. and Robertson, I.T. (1998), Work Psychology, London: Financial Times
Publishing.
Barnes, H., Parry, J. and Lakey, J. (2002), Forging a New Future: The Experiences and Expectations of
People Leaving Paid Work Over 50, Bristol: Policy Press.
Barnes, H.; Smeaton, D. and Taylor, R. (2009), An Ageing Workforce – The Employer’s Perspective, IES
Report 468, October.
Black, C. (2008), Working for a Healthier Tomorrow, London: The Stationary Office.
Bytheway, B. (2007), ‘Choose when you stop? Retirement and age discrimination’, Policy & Politics,
35(3): 551–555.
CAWA project (2008), Creative Approaches to Workforce Ageing, European Social Funding, Art. 6
Funded project. Coordinated by WLRI, London. November 2005–November 2008. http://www.
workinglives.org/wlri-project-websites/cawa-en/cawa-en_home.cfm
Commission Communication (2006), The Demographic Future of Europe –From Challenge to Opportunity.
Brussels: Commission of the European Communities. 12 October.
Cowell, A. (2004), ‘Demographic time bomb threatens pensions in Europe’, New York Times. 26
November, http://www.nytimes.com/2004/11/26/international/europe/26pension.html
Crépon, B. and Aubert, P. (2003), ‘Productivité et salaire des travailleurs âgés’ [Productivity and
salary of older workers], Economie et Statistique, 368: 157–185.
De Jong, A.H. and Eding, H. (2000), ‘Main trends in the labour force in the European Union’,
Maandstatistiek van de Bevolking, 10: 9–16.
Disney, R. and Hawkes, D. (2003), Declining Employment of Older Workers: Has Britain Turned the
Corner?, The Institute for Fiscal Studies. http://www.ifs.org.uk/cera/publications.php?publication_
id=2575
DWP (2004), Working Age Labour Market Summary. http://www.dwp.gov.uk/asd/asd1/workandpens/
2002/Working_Age.pdf
Ehrman, R. (2009), The Power of Numbers, Why Europe Needs to Get Younger, London: Policy
Exchange.
Eurofound (2007), Life Expectancy at Birth, 27 August, http://www.eurofound.europa.eu/areas/
qualityoflife/eurlife/index.php?template=3&radioindic=1&idDomain=1
European Commission (2005), Age Discrimination and European Law, Brussels: Employment and
Social Affairs. http://ec.europa.eu/employment_social/publications/2005/ke6805147_en.pdf
—— (2008), Demography Report 2008: Meeting Social Needs in an Ageing Society, Brussels: Commission
Staff Working Document.
—— (2009), 2009 Ageing Report: Economic and Budgetary Projections for the EU-27 Member
States (2008–2060), Euopean Economy, 2. http://ec.europa.eu/economy_finance/publications/
publication14992_en.pdf
Evandrou, M. and Glaser, K. (2004), ‘Family, work and quality of life: changing economic and social
roles through the life course’, Ageing and Society, 24: 771–791.
Fougère, M. and Mérette, M. (1998), Population Ageing and Economic Growth in Seven OECD Countries,
Working Chapter No. 1998–2003, Ottawa: Department of Finance.
Giardini, A. and Kabst, R. (2008), ‘Effects of work-family human resource practices: a longitudinal
perspective’, The International Journal of Human Resource Management, 19(11): 2079–2094.
Grant, J., Hoorens, S., Sivadasan, S., Loo, M. van het, DaVanzo, J., Hale, L., Gibson, S. and Butz, W.
(2004), Fertility and Population Ageing. Causes,Consequences and Policy Options, Santa Monica-
Leiden-Cambridge-Berlin: RAND Corporation, 2004.
Green, F. (2005), Demanding Work: The Paradox of Job Quality in the Affluent Economy, New York:
Princeton University Press.
Gunderson, M. (2003), ‘Age discrimination in employment in Canada’, Contemporary Economic
Policy, 21(3): 318–328.
Haub, C. (2007), World Population Data Sheet, Population Reference Bureau. http://www.prb.org/
presentations/07WorldDataSheet_presentation.ppt
Henkens, K., Remery, C. and Schippers, J. (2008), ‘Shortages in an ageing labour market: an analysis
of employers’ behaviour’, The International Journal of Human Resource Management 19(7): 1314–
1329.
Heuberger, R. (2004), Activage, Deliverable 2: WP 2 – Country Report Austria, Active Ageing and the
Labour Market, May.
Humphrey, A., Costigan, P., Pickering, K., Stratford, N. and Barnes, M. (2003), Factors Affecting the
Labour Market Participation of Older Workers, London: DWP.
Jimeno, J.F. (2004), Demographic Change, Immigration, and the Labour Market: A European Perspective,
Documento de Trabajo 2004–2018. http://www.fedea.es/hojas/publicationes.html#Documentos
de Trabajo
Keldusild, L. (2009), ‘Retirement under the age equality legislation: the Heyday challenge’, Business
Law Review, 30(1): 2–4.
Lisbon Council (2000), Lisbon Agenda. http://www.euractiv.com/en/future-eu/lisbon-agenda/article-
117510; http://www.eurofound.europa.eu/eiro/2000/04/feature/eu0004241f.htm; http://www.
europarl.europa.eu/summits/lis1_en.htm; http://europa.eu/legislation_summaries/education_training_
youth/general_framework/c10241_en.htm
Loretto, W., Vickerstaff, S. and White, P. (2005), Older Workers and Options for Flexible Work, Working
Chapter Series No.3., Manchester: Equal Opportunities Commission.
Loretto, W., Vickerstaff, S. and White, P. (2007), ‘The future for older workers: opportunities and
constraints’, in W. Loretto, S. Vickerstaff, and P. White (eds), The Future for Older Workers: New
Perspectives, Bristol: The Policy Press, pp. 203–226.
Lutz, W. (2006), European Demographic Data Sheet 2006, Vienna and Washington, DC: Vienna
Institute of Demography, International Institute for Applied Systems Analysis, and Population
Reference Bureau.
MacGregor, D. (2005), ‘The ass and the grasshopper: Universities and mandatory retirement in
Canada’, in P. Ibbott, D. Kerr and R. Beaujot, ‘Probing the future of mandatory retirement in
Canada’, Canadian Journal on Aging, 25(2): 161–178.
McNair, S., Flynn, M., Owen, L., Humphreys, C. and Woodfield, S. (2004), Changing Work in Later Life:
A Study of Job Transitions, University of Surrey: Centre for Research into the Older Workforce.
Mayhew, K. and Rijkers, B. (2004), ‘How to improve the human capital of older workers, or the sad
tail of the magic bullet’, Chapter prepared for the joint EC OECD seminar on Human Capital and
Labour Market Performance held in Brussels, 8 December.
Meadows, P. (2003), ‘Retirement Ages in the UK: A Review of the Literature’, Employment Relations
Research Series, 18, London: Department of Trade and Industry.
Meyer, J.P. and Allen, N.J. (1997), Commitment in the Workplace, Theory, Research and Application,
London: Sage.
Molinié, A-F. (2003), Age and Working Conditions in the European Union, Dublin: European Foundation
for the Improvement of Living and Working Conditions. http://www.eurofound.europa.eu/
publications/htmlfiles/ef02106.htm; http://www.eurofound.europa.eu/publications/htmlfiles/
ef02107.htm
Mowday, R.T., Steers, R.M. and Porter, L.W. (1979), ‘The measurement of organisational commitment’,
Journal of Vocational Behaviour, 14: 224–247.
Mullins, L.J. (2002), ‘Managerial behaviour and effectiveness’, in L.J. Mullins (ed.), Management and
Organisational Behaviour, 6th ed, London: Prentice Hall, pp. 207–251.
Munroe, J. (2005), ‘The debate about mandatory retirement in Ontario universities: Positive and
personal choices about retirement at 65’, in C.T. Gillin, D. MacGregor and T.R. Klassen (eds),
Ageism, Mandatory Retirement and Human Rights in Canada. Toronto: Canadian Association of
University Teachers, James Lorimer, in Ibbott, P., Kerr, D. and Beaujot R. (2006) ‘Probing the
future of mandatory retirement in Canada’, Canadian Journal on Aging, 25(2): 161–178.
Mykletun, R.J. and Furunes, T. (2007), ‘Promoting health and workability in Vattenfall AB Nordic,
Sweden’ in: Kumashiro, M. (ed.), Promoting of Work Ability Towards Productive Ageing. Selected
papers of the 3rd International Symposium on Work Ability, Hanoi, Vietnam, 22–24 October,
London: CRC/Taylor & Francis, pp. 169–176.
Naegele, G. and Walker, A. (2006), A Guide to Good Practice in Age Management, European Foundation
for the Improvement of Living and Working Conditions, Luxembourg: Office for Official
Publications of the European Communities. http://www.eurofound.europa.eu/pubdocs/2005/137/
en/1/ef05137en.pdf
Nursing Times.net (2009), ‘Why flexible working is an active career choice within the NHS’. http://
www.nursingtimes.net/nursing-times-this-weeks-issue/nhs-professionals/why-flexible-working-
is-an-active-career-choice-within-the-nhs/5001764.article
Penner, R.G., Perun, P. and Steuerle C.E. (2002), Legal and Institutional Impediments to Partial
Retirement and Part-time Work by Older Workers, Urban Institute Research Report, Washington DC:
Urban Institute.
Phillipson, C. and Smith, A. (2005), Extending Working Life: A Review of the Research Literature, DWP
Research Report No. 299, London.
Pollard, N., Latorre, M. and Sriskandarajah, D. (2008), Floodgates or Turnstiles? Post-EU Enlargement
Migration Flows to (and from) the UK, London: IPPR. 30 April.
Roseveare, D., Leibfritz, W., Fore, D. and Wurzel, E. (1996), Ageing Populations, Pension Systems and
Government Budgets: Simulations for 20 OECD Countries, Economics Department Working Chapters
No. 168, Paris: OECD.
Smeaton, D., Vegeris, S and Sahin-Dikmen, M. (2009), Older Workers: Employment Preferences,
Barriers and Solutions, EHRC Research Report 43, Stockholm: European Council. www.ec.europa.
eu/infonet/forum/026.pdf
TAEN, Age Concern, Help the Aged and CIPD (2009) Briefing: The Impact of the Recession on Older Workers.
http://taen.org.uk/uploads/resources/Impact_of_the_recession_on_older_workers_media_
briefing1.pdf
Tailby, S. (2005), ‘Agency and bank nursing in the UK National Health Service’, Work, Employment
& Society, 19(2): 369–389.
Tajfel, H. and Turner, J.C. (1979), ‘Social groups and identities’, in Robinson, W.P. (ed.), Developing
the Legacy of Henry Tajfe, Oxford: Butterworth-Heinemann.
Turner, A. (2004), Turner Commission Report: Pensions: Challenges and Choices, Independent Pensions
Commission. 12 October.
Villosio, C., Di Pierro, D., Giordanengo, A., Pasqua P. and Richiardi, M. (2008), Working Conditions of
an Ageing Workforce, Dublin: Office for Official Publications of the European Communities. www.
eurofound.europa.eu
Vos, R., Ocampo, J.A. and Cortez, A.L., eds (2008), ‘An ageing world population’, in Ageing and
Development, London: Zed Books Ltd.
Walker, A. (2006), ‘Active aging in employment in meaning and potential’, Asia-Pacific Review,
55(1): 121–139.
16 Ageism, Solicitors
chapter
and Female Mature

Entrants: An Awkward
Combination
ALEXaNDRINE GUYaRD-NEDELEC
Introduction
The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006,
outlawing discrimination on the basis of actual or perceived age and covering all ages;1
they are restricted to the fields of employment and vocational training (DTI 2006: 2). Not
all distinctions on grounds of age are discriminatory, but direct age discrimination occurs
when on grounds of B’s age, A treats B less favourably than he treats or would treat B,
unless A can objectively justify that treatment (Regulation 3).
In the legal profession, especially among law firms, late entrants still face major
difficulties when it comes to securing a training contract or a position as a solicitor once
they have managed to qualify: there is evidence of widespread ageism in the profession.
Indeed, notably due to a patriarchal heritage, the legal profession has never been known
for its diversity record. Despite equality and diversity campaigns and a steady increase in
the number of female entrants, there remains much to be done, notably in terms of gender
equality. As is widely recognised in the literature, ‘constant vigilance and campaigning is
required if women are to gain opportunities to pursue their professional legal careers to
the extent of their choosing’ (McGlynn 2003a: 156).
This raises particular questions about the situation of mature female entrants, who
are potentially more likely to be the victims of discrimination when embarking on a
legal career, even though multi-faceted identities cannot be accounted for by a mere
cumulative or additive approach (Adib and Guerrier 2003; Jordan-Zachery 2007). Female
mature entrants2 to the legal profession stand at the crossroads between older/mature
1 There are exceptions if an applicant is over the age of 65 or over the employer’s normal retirement age (if the
latter is over the age of 65) at the time of their application or within six months of their application to the employer (see
Regulation 7).
2 It is hard to give a precise definition of the terms ‘mature’ and ‘older’ as age and perceptions of it are so subjective,
as will be discussed later. Generally, ‘older women’ might be considered as those aged 50 and over, but this limit is a mere
indicator.
age and gender and therefore epitomise a particular aspect of intersectionality, a concept
defining multi-faceted identities, which is increasingly recognised both within the
academic and institutional spheres.
In this context, this chapter aims at analysing an apparent paradox: age discrimination
against mature women. Older age should work in women’s favour as it appears that
much of the discrimination women face is linked to maternity.3 Thus, as they will not
take maternity leave and have fewer childcare responsibilities, employing older women
should be an attractive option for employers. Even though men also seem to suffer from
prejudice against older age, this chapter will not include male mature applicants, as it
aims to highlight the intersection of female gender and age. The focus is on this particular
form of intersectionality, which is still relatively under-studied: ‘little is known about
how age interacts with gender in producing employment disadvantage’ (Duncan and
Loretto 2004: 97). This chapter addresses the issue of recruitment rather than retirement
(which is discussed in Flynn, Chapter 17), as ageism is too often associated with the
trend towards ‘early exit’ (Duncan and Loretto 2004: 95). Undeniably, age discrimination
does not only concern retirement, and covers the whole spectrum (Loretto, Duncan and
White 2000).
The chapter first addresses the paradox of discrimination against mature women,
then describes the three stages of entry to the legal profession. Finally the chapter
examines more particularly the impact of the legislation on age discrimination in the
legal profession before discussing some possible solutions to combating ageism.
Mature Women: An Employment Paradox

Surprisingly, many of the 19 lawyers interviewed4 for my research on intersectionality
suggested that sex discrimination belonged to the past, and that women were now fully
accepted in the legal profession, but that there was still a lot of discrimination on the
grounds of maternity. However, statistics show that women are not continuing through
the profession in equal numbers:
• Women are the majority of new admissions to the profession in each year since 1996–
1997.
• Women were 59.9 per cent of the new admissions in 2006–2007.
• Women account for 43.4 per cent of solicitors with practising certificates.
3 For example, concept of ‘maternal wall’ which emerged in the 1990s. See Biernat, M., Crosby, F. and Williams, J.
(eds) (2004). The maternal wall: Research and policy perspectives on discrimination against mothers. Special issue of the Journal
of Social Issues, 60:4.
4 The doctoral research on intersectionality and the legal profession included a series of semi-structured interviews
with women solicitors, barristers and judges, and other female agents in the legal sphere in England, conducted from
October 2007 to September 2008. All the interviewees can be considered as having an identity which might lead to
potential discrimination, in particular intersectional discrimination (due to the interaction of their gender with one or
several other facets of their identity: age, race/ethnicity, sexual orientation, disability, religion, and so on). The focus of
the interviews was on the consequences of these interactions in the work environment only. The age of the interviewee
is given in brackets at the end of the quotes. This chapter is also based on private correspondence (13 emails) between
one of the interviewees and other female solicitors and mature applicants; the age of each correspondent is given in
parentheses.
A g e i s m , S o l i c i t o r s a n d F e m a l e M a t u r e E n t r a n t s 221
Furthermore there is still a pay gap on entry to the profession as, on average, male
trainees are offered starting salaries which are 12.8 per cent above the average for females
(Cole 2007: 42–44). Moreover, studies of retention and promotion (for example, Webley
and Duff 2007) unmistakably show a glass ceiling and high rates of women leaving their
law firms prematurely.
However, maternity is an important issue, and many of the problems faced by women
revolve around their status and responsibilities as mothers or mothers to be, even if all
women do not have children (see also James, Chapter 4).
Accordingly, employing mature women should be considered a less risky option for
employers, and law firms, in particular, as they are unlikely to go on maternity leave
and are less encumbered with childcare responsibilities. In addition, older women may
reinvest their skills in a new career (or start paid work again if they had stopped) once
their children have left the home. In spite of this, mature women embarking on a legal
career still have a very hard time. The paradox they embody was summarised by Maguire
(1995: 564) as follows:
Ageist formations render older women even less attractive to future employers because they
might be regarded as less able/resilient than older males. Of course, the converse could equally
be true: an older woman might be seen as more reliable and unlikely to take maternity leave.
The Intersection of Female Gender and Age
Mature women face particular challenges, and are sometimes ill equipped to deal with
the discrimination they may encounter. This does not derive from their age per se but
from the culture in which they were raised. For those who grew up in western societies
before the 1960s, very traditional gendered roles dominated their formative years
(Arber et al. 2007: 148).
Women who are in their 50s or 60s now were thus raised at a time when sex
discrimination was rife and legal. The Sex Discrimination Act only dates back to 1975,
and the Equal Pay Act to 1970 and each was only implemented gradually. A gap still exists
between women’s and men’s pay that is not expected to be closed until 2085 (GEO 2008: 7),
which demonstrates that implementation might be defective and that enacting new
legislation cannot solve all the problems. Some women may thus adopt an attitude of
resignation instead of challenging the prejudices they come across. As one interviewee
put it:
I think, generally, there’s something about the older generation of women, not your generation,
not my daughters’ generation, who – it’s inbuilt in us not to be strident and pushy and not to
say ‘Why not me? Why are you favouring men over me?’
(Woman aged 63)
Age differs from the other categories of discrimination in that it is much more fluid,
and by definition is not fixed (Moore 2007: 386). Moreover, it may be even more subject
than the other equality strands to the perception of others, as illustrated for instance by
the fact that the legislation outlaws discrimination on the basis of perceived age as well as
actual age. This is in keeping with the fact that ‘the meaning and experience of age, and
of the process of ageing, is subject to historical and cultural processes’ (Wyn and White
1997: 10, quoted in Hopkins and Pain 2007: 287). More than a biological fact, age is thus
a social construct, and studying age in its interaction with gender (or other categories)
therefore requires particular attention, in order not to fall into over-generalisation. Due
to the nature of age, seeing uniformity instead of difference in women’s experiences
would lead to misrepresentations, and to the invisibility of sub-groups of women, such as
childless women or older mothers of adult children (Krekula 2007: 156–159).
When Does a Woman Become Older?
The shifting nature of age may partly explain the fact that the age of applicants who are
considered ‘mature applicants’ differs widely, which is another obstacle when trying to find
emerging patterns. Duncan and Loretto (2004) also insist on the fact that women are often
perceived as ‘old’ earlier than men, a fact that led Maguire to question when a woman becomes
an ‘older’ woman (over 30, 35, 40, or post-menopause?), and whether age has a different
impact for women than men on their working lives and work experiences (Maguire 1995).
Duncan and Loretto’s findings also tend to confirm that ‘women may experience
greater age discrimination over all ages than do men, and that “double jeopardy”, as it
applies to women, may be reinforcing rather than simply additive’ (2004: 102). Equally
interesting is their conclusion that women seem to have internalised these barriers
linked to age, and therefore try to look as young as possible as a means of avoiding the
disadvantages of prejudice against ageing.
The reasons for mature candidates’ decision to enter the legal profession later in life
deserve investigation, but are not at the core of this chapter, which aims at ‘unpacking’
the complexity of the interaction between age and gender, with a view to presenting a
critique of equality legislation. What is crucial, however, for these women, is whether
their ability to exercise choice is genuine and is followed by real employment prospects,
as discussed by Fredman and Spencer (2003: 3). Therefore, while this first section briefly
presented the paradox embodied by mature women, the next section tries to assess
whether mature entrants are really offered the possibility of pursuing their choices.
Forcing One’s Way into the Legal Profession

This section looks at the trajectories of female mature entrants to the legal profession
(solicitors only) from a chronological point of view, by focusing first on their studies, then
on the training contract, and finally on their search for a position as a qualified solicitor.
The Law Society has analysed the age distribution of solicitors admitted to the Roll5
in 2006–2007. Taken overall, the average age of those admitted was 29.5 years; just over
three fifths (60.9 per cent) of new admissions were aged 28 years or less. These figures give
an indication of the barriers that may exist for mature candidates, as the vast majority of
new admissions are under age 30, as illustrated by the table below. The figures also reveal
that women are slightly more likely to be in the younger age groups, which might make
it harder for women trying to enter the profession as mature students.
5 Trainees who have passed all the examinations and successfully completed the training period apply to have
their names entered on the Roll of Solicitors (register of all the solicitors of England and Wales, kept by the Solicitors
Regulatory Authority for the Law Society); this is the final step for trainee solicitors, who then become qualified lawyers.
To practise, solicitors also need a practising certificate (they can be on the Roll even if they are not practising).
Table 16.1 Age distribution of solicitors admitted to the Roll in 2006–2007
Age Women Men

24–29 72.2% 64%
30–34 15.5% 18.7%
35–39 6.2% 8.7%
40–44 3.4% 4.4%
45–49 1.9% 2.2%
50–55 0.5% 0.9%
55 and over 0.2% 0.8%
Total known 4,318 2,891
Unknown 5 9
Source: Cole, 2007: 45.
It seems logical that the majority of new entrants are under 30, as mature students
represent a minority of people who embark on a legal career either after another career or
after taking time out of the labour market. However, it is hard to measure the percentage
of mature students who are not admitted to the Roll, as the annual statistical report does
not take into account age in its figures on post-graduate education and training; for this
reason, it is also unclear whether more women than men try and enter the profession as
mature students.
Studying Law
Despite the barriers they have to overcome, older students (aged 50 and over – one per
cent of the student population), are believed to reach high levels of achievement; they
are perceived as bringing unique attributes to their studies, including maturity, wisdom
and stability (Grant et al. 2006: 4). Even though ‘mature students’ encompass a wide age
group, the qualities attributed to older students might be replicated in mature students
more generally. At least in the cases of the women who were interviewed and in the
correspondence, mature law students seem to achieve good results. Therefore, the law
firms these women applied to could not rely on academic results as a way of objectively
rejecting them. Mature applicants whose academic achievements are good are then all
the more frustrated by the way employers treat them when they are looking for training
contracts. Teachers on the Legal Practice Course (LPC) and career advisers are well aware
that mature students have a hard time, even if they pass the LPC successfully:
Throughout my time at the College of Law I was constantly met with a negative attitude from
Careers Advice who advised me that less than two per cent of mature students win training
contracts.
(Woman aged 49)
Some mature applicants then complain about the fact that they are still enrolled for
the LPC, and have to pay the fees, whereas their prospect of getting a training contract or
a position as a qualified solicitor is scarce:
If a firm has no one over 50 working there, it’s obvious the corporate climate will not be
welcoming to a 45-year-old trainee. Yet law schools continue to accept the tuition of bright and
accomplished older students.
(Comment posted on Legal Week website 19 October 2007 in response to Ruckin 2007)
While mature students may feel that LPC providers are simply looking for profit and
should not accept mature students if they know that they will not secure training and
employment, the issue is more complex, as the Age Regulations make it unlawful for a
body which confers professional or trade qualifications to discriminate against a person
on the grounds of age (Regulation 19) (DTI, 2006: 11).
The risks and costs of making the transition from another career to the legal profession
will not be discussed here although these aspects are important. Studying for the Common
Professional Examination (CPE) and LPC is a real investment both financially and in
juggling family responsibilities (for mature women who still have children at home) with
studying. Although law students are often funded for their CPE and/or LPC by a firm that
recruits them beforehand, such practice is almost unheard of for mature students, and
the fees are high.
In the light of the financial burden represented by the LPC, the next section will look
at the prospects for mature students who are looking for training contracts in order to
obtain their vocational training and qualify as solicitors.
Looking for a Training Contract
Once they have been successful at completing the LPC, mature women have to start
hunting for a training contract, which is often far harder than imagined. Despite the
warnings of lecturers and career advisers and their constant advice to network, mature
female applicants find endless rejection hard to swallow, and the struggle may be very
frustrating:
Of late, I have felt very much that I started to follow this ambition too late in life and was
beginning to wonder why I did it at all. It is, when it comes to securing a training contract, a
very age-oriented profession.
(Woman aged 49)
This picture is confirmed by the Open University Law Society, which addressed the
issue in 2003. The then president, Richard Hand, said ‘We’ve heard that a lot of law firms
allegedly don’t take trainees over 30. This ties in with the fact that there is currently
no law against age discrimination.’ The Trainee Solicitors Group had estimated that the
average trainee was aged between 23–25 years (Farrar 2003). In spite of the introduction
of the 2006 Regulations, the situation seems to have stayed much the same, as is revealed
for instance by the fact that the Trainee Solicitors Group have dedicated an entire section
of their website to mature students, in order to give them advice that may help them
overcome their disadvantage in the legal recruitment market.6
The public sector may offer a fairer recruitment process: a woman looking for a
training contract at the age of 48 describes her experience in a letter to the Law Society
6 http://www.tsg.org/mature-students.html
Gazette, and concludes that the public sector is far more objective in terms of recruitment:
‘I am now six weeks away from qualification in the Government Legal Service, whose
trainee recruitment process was impressively objective’ (Law Society Gazette, 1 November
2007). A widening gap does seem to be growing between the public and private sectors,
and although some interviewees suggested that the more positive approach of the public
sector was mere political correctness, the public sector (Government or local authorities)
seems much more respectful of the equality legislation than the private sector.
In the private sector, the difficulties late entrants encounter may partly be attributed
to the culture of the legal profession, which very much favours connections, as well
as high-profile universities. This may be to the detriment of mature students, who are
sometimes denied opportunities because of family favouritism for instance:
Many law firms are driven by father/son/daughter, etc. succession. I was at an interview the
other day who informed me they had a new trainee starting next July, who was the Senior
Partner’s son. They told me he did not know what he wanted to do really but was giving law a
go! So annoying when there are people like us who are so committed.
(Woman aged 49)
In the light of all the potential difficulties facing women mature entrants, the
importance of networking may be even more important for them, and they are very
often advised to network as much as possible, as soon as they start the conversion course
(CPE) or the LPC:
I was warned that it would be very difficult for me to qualify. When I did my law conversion
degree at the university […] my personal tutor […] said […] ‘you’re going to find it difficult’. I
don’t think I really took her seriously; her advice was ‘You must network, you must use all your
friendships and be totally blatant about it.’ And I am realising that it is very much who you
know or whom you are prepared to go and ask. Which is something a lot of women can’t do.
They don’t push themselves forward, it is … vulgar to do that. But you have to do it!
(Woman aged 63)
Securing a training contract therefore appears to be the grail of mature women who
want to qualify as solicitors; but the ageist stereotypes that prevail in the profession often
seem to outweigh their motivation and dedication to the new professional path they
have chosen.
The next section shows that more difficulties may lie ahead even when one has
managed to obtain a training contract and has qualified.
Finding an Employer
The qualities of mature persons and their input seem particularly ill-recognised in
the legal profession. Law firms tend to perceive mature female entrants as a burden,
either financially (the latter will often require higher wages than young entrants to
the profession) or as a person. A wide range of reasons may account for the negative
attitude these women encounter. Law firms may fear that they are not going to get along
with the rest of the team, which is a frequent stereotype regarding older workers. In
general, employers have been found to view older workers as less productive, having less
relevant skills, resistant to change and technology and less trainable, and more prone to
absenteeism and ill health (Loretto, Duncan and White 2000: 283).
These findings are illustrated by the comments of this middle-aged woman who
qualified as a solicitor at age 49 and started looking for a position in a law firm:
I have been informed by my referees that when I have applied for jobs and telephone contact
has been made with them from prospective employers, the constant query has been about my
ability to cope at MY AGE! One even apparently asked a referee ‘How much will we get out of
her given her age?’ To which my referee was appalled and gave them a suitable reply, reminding
them I was 49 not 89.
(Woman aged 49)
Things are complex for older women: Maguire (1995: 563–564) recalls that an older,
more experienced woman is likely to be perceived as a threat to the existing gender
power relations, all the more as women are often expected to take secondary roles and
assist men. Moreover, in vertically stratified, predominantly male-managed occupations,
a young woman may well be the ‘ideal-type’ employee, because her physical appearance
will appeal to the selection panel, and because she will be perceived as someone who can
be moulded, will take orders and will not make alternative suggestions.
The culture of corporate law firms, which favours early retirement, makes it even
harder for mature entrants to be hired. An article published by Legal Week in September
2007 summarised the situation in these terms:
According to the latest Legal Week/EJ Legal Big Question survey, 72 per cent of respondents
think new-look age discrimination laws have ‘very little’ (33 per cent) or ‘no’ compatibility
(39 per cent) with the economic realities of the partnership model of large firms, which sees
commercial law firm partners retire in their 50s.
(Ruckin 2007: 1)
A last-resort option for the most committed, evoked by some women in the
correspondence, is to set up their own small firm and employ a qualified solicitor who will
give them training (at least administratively speaking) so that they can qualify. That some
mature women actually consider this as an option is in itself very telling, as this solution
implies they are willing to take up a heavy burden of administrative responsibilities that
will have to be juggled with learning to do the job; besides it requires an investment in
time and money that can only be afforded by a small proportion of mature entrants.
This section questioned the compatibility of the culture of law firms and the
recruitment of female mature candidates, and suggested that legislation on age may not
have the impact that was expected: the next section examines this in more depth.
Impact of the Legislation and Future Developments

Implications of the Regulations
It was not until the EU Employment Directive 2000 that the UK began to move towards
introducing a law to prevent age discrimination in the workplace, whereas in the US
for instance, legislation to outlaw age discrimination at work came into force as far
back as 1967. The Government decided to take the full six years allowed to implement
EU legislation into national law, due to the ‘complex and sensitive’ nature of the issue
(Tromans 2005). The Employment Equality (Age) Regulations 2006 that implement the
age strand of Directive 2000/78 EC came into force on 1 October 2006 (these Regulations
do not extend to Northern Ireland). They cover:
• direct and indirect discrimination;

• harassment; and
• victimisation.
There are some exceptions if there is ‘objective justification’ but real evidence is needed
to support such a claim, which cannot rely on mere allegations. The Regulations apply
to everyone in employment or vocational training; when the relevant sections of the
Equality Act 2010 come into force (expected April 2012), age discrimination will also be
outlawed outside the workplace,7 which is an important shift. For law firms, employment
and vocational training include:
• contract and agency workers;

• office holders;
• barristers;
• partners; and
• existing, prospective and former employees.
(Law Society 2006)
Regarding trainees, law firms have to ensure support is not geared towards younger
trainees, and in terms of recruitment, they have to pay attention to the wording of
advertisements and avoid terms such as ‘young’, ‘dynamic’ or ‘modern’, but also ‘mature’,
‘experienced’ or ‘senior’.
A survey of in-house lawyers8 across the UK (Tromans 2005) was carried out 18 months
prior to the enactment of the Regulations. Its findings raise doubts about the impact of
the legislation and its capacity to reduce ageism in the legal profession. It found:
• 93 per cent of respondents said age-based discrimination was not an issue in their
company;
• 75 per cent had not conducted an age-based review of their employment policies,
despite the impending and potentially damaging consequences of the new law and
their awareness of reputational damage caused by losing an employment tribunal
over discrimination;
• 26 per cent believed that the main problems they would experience from the new
legislation would be retirement related; and
• 57 per cent could not clearly identify how the new law would affect them.
7 Extension of the prohibition to services and public functions. See Equality Act 2010, Part 3. There is a lower limit
as concerns public functions (people under 18 are not included; clause 28) and there are exceptions that relate to age
protection outside the workplace (clause 197).
8 Lawyers who are not working within a law firm but for a company, a bank or a local authority. The survey concerned
more particularly corporate counsel, that is, did not include lawyers working for local authorities.
Although the survey was conducted with in-house lawyers, similar results were
obtained in a survey of law firms carried out in 2007 (after the enactment of the legislation)
(Ruckin 2007). This revealed that almost three quarters of the UK’s most senior lawyers
believe age discrimination laws cannot be a success, given the rigid employment regime
of commercial law firms, which favours retirement of partners at a younger age; just three
per cent believe the new laws has prompted firms to sharpen up their act.
In an attempt to analyse the impact of the new legislation one year after its
introduction, The Lawyer noted that even if age discrimination cases have not made the
news very often, the number of claims is quite high:
From a standing start, around 2,000 tribunal claims were filed in the first year. This is around
six times as many claims as were made in the first year that UK religious discrimination laws
were introduced. […] the sheer weight of applications being made means that as time goes on,
news about ageist claims will become far more common.
(Feinstein and Turner 2007)
These figures are not surprising, as in the Republic of Ireland, for instance, allegations
of ageism now amount to 19 per cent of Ireland’s formal discrimination claims (Law
Society 2006: 3). The Trainee Solicitors Group also states that it is likely that age
discrimination laws will rapidly become a major source of discrimination claims in the
workplace, which is confirmed by many observers, in the light of the number of claims
already filed, combined with the ageing population.
If such a flood of age discrimination claims threatens employers (who, we have seen,
do not seem to respect or fear the new legislation exceedingly), questions may be raised
about the rhetoric intended to further the recruitment of mature/older applicants, and
ensure that businesses find an incentive for hiring them.
Selling Age Diversity for Recruitment Purposes
A business case has been put forward in order to show that recruiting people of all
ages is good for businesses. For instance, Age Positive9 asserts that widening the net to
potential candidates of all ages directly helps to minimise recruitment costs, and to take
full advantage of the skills brought by people of all ages, in particular the skills and ideas
learnt in previous employment or related careers (Age Positive 2007: 2). The Government
also emphasises that ‘a dynamic economy can only be achieved by giving everyone an
equal chance to develop their skills and maximise their employment potential’.10
The business case rhetoric has also been adopted by the Law Society (2006: 4), which
enumerates a list of benefits deriving from beating ageism, namely:
• lowering recruitment, training and turnover costs;

• increasing the pool of candidates for vacancies;
9 Age Positive is a government agency that is responsible for strategy and policies to support people making decisions
about working and retirement. The Age Positive campaign promotes the benefits of employing a mixed-age workforce
that includes older and younger people.
10 DTI, Age discrimination fact sheet No 4 – ‘Vocational training’, March 2006.
• improving staff retention rates, productivity and staff motivation and morale; and
• getting the best person for the job.
The Law Society sheds light on the example of Morgan Cole, one of the UK’s top law
firms that has been named an Age Positive Champion; the firm employs both younger
trainees and older trainees who join the profession after careers in other industries and
says that diversity brings value to the firm, and in turn value to their clients (Law Society
2006: 6), which is an important incentive in the legal profession.
The risks and limitations of the business case have been demonstrated, in particular
for sex equality. McGlynn (2003b) stresses that it is a wholly misconceived campaign,
on the grounds that equality should never be reduced to a by-product of the improving
economic efficiency of firms. It may be argued that there is substantial evidence for the
business case for age diversity in the light of demographics, as by 2026 in the UK, half of
all those aged 16 and over will be over 50 (Law Society, 2006: 3) (see also Winkelmann-
Gleed, Chapter 15). Nevertheless, it remains that the business case theory has the potential
to dismantle any advance secured for diversity, as it is open to constant change and may
prove particularly fragile in times of economic recession. In spite of the double-edged
dimension of the business case, economic arguments and clients’ demands are often
the engine for change as far as law firms are concerned. Thus, in order to mitigate both
justifications for age diversity, Kevin Martin, the then President of the Law Society, said
in 2006 that:
Behaviour that discriminates on any grounds is inconsistent with the core values of solicitors,
but managing diversity is also about gaining a competitive advantage in the market place, and
recruiting and retaining good people makes sound business sense.
(Law Society 2006: 6)
The actual experiences of women, as illustrated by the many examples in this chapter,
are often in sharp contrast to this assertion from the Law Society, as the treatment they
face is indeed ‘inconsistent with the core values of solicitors’. It also appears that many
employers are yet to be convinced of the business benefits of employing older workers:
I think the Age Discrimination Act, many people had unrealistic hopes for it. Maybe it’s going
to stop firms automatically firing people too early, but I don’t think it can do anything to
re-educate people about the value of older people in the workforce, taking them on.
(Woman aged 54)
Whether or not the business case is successful in promoting the recruitment of

mature candidates, and however doubtful the ethical assumptions of such arguments,
discriminating against applicants on the grounds of age has been illegal in the UK since
2006. In spite of the coming into force of the Regulations, mature candidates still have to
overcome many stereotypical assumptions about older age. The last section consequently
tries to assess the strengths and shortcomings of the legislation, and whether or not
the Equality Act 2010 is likely to introduce fruitful developments in the fight against
ageism.
Effectiveness of the Legislation
There is no doubt that introducing legislation on age discrimination was necessary, as

many had pointed out prior to its enactment. Hepple (2003: 71) insisted on the fact that
the implementation of the legislation against age discrimination should not be seen as
another burden imposed by the European Union, for two main reasons:
1. Action against age discrimination is an appropriate and necessary aspect of UK

employment policy; and
2. such action cannot rely solely on a voluntary code and other promotional measures,
but must be supported by an effective, efficient and equitable regulatory framework.
One of the most positive aspects of the 2006 Age Regulations seems to be the fact that
they provide a blanket coverage irrespective of age. This was one of the aspects that was
insisted on by Loretto, Duncan and White (2000: 285–286), based on the experience of a
significant number of undergraduate students in their study who perceived themselves as
having encountered age discrimination in employment. They see several advantages to
this approach, notably that it would address the diverse patterns of age discrimination,
that it would be coherent with current developments in equal opportunities, and that
it promotes the understanding of ageism as an ideology that affects us all whether as
perpetrators, victims, or both. It is all the more important for women that the legislation
offers protection irrespective of age, and not only to a definite age group (such as 50+ for
instance), as research has shown that women are considered to be old at a younger age
than men (Taylor and Walker 1998: 655).
It is also noteworthy that the legislation affects both the public sector and the private
sector. The public sector, as noted by the Trainee Solicitors Group and by interviewees,
operates recruitment methods that seem fairer, and appear to be more committed to age
diversity than the private sector. This may give cause for optimism, as public sector clients
will require their suppliers, including solicitors, to take appropriate steps in order to meet
their standards in terms of equality and diversity (Law Society 2006: 5). Public authorities
need to ensure that works, goods or services provided through procurement are delivered
in a way that takes account of the relevant content of the authority’s equality duties,
which has a ‘rebound’ effect on the private sector.
However, the Directive and the Regulations that implement it were based only on
negative prohibitions against direct and indirect discrimination, rather than a positive
duty to promote equality (Hepple 2003: 80). Such duties were introduced in relation to
race (2001), disability (2006) and gender (2007), placing a legal responsibility on public
authorities to have due regard to the need to eliminate unlawful discrimination. One
of the new aspects of the Equality Act 2010 is the extension of the public sector duty to
all the relevant protected characteristics (clause 149), including age. The equality duty,
expected to come into force in April 2011, will thus require employers in the public sector
to also ensure the promotion of age diversity and equality.
Some had also pointed out that if the legislation is formally gender-neutral but in
fact preoccupied with its impact upon older men, it is inevitably defective (Duncan and
Loretto 2004: 111). Unfortunately, the Regulations seem to have been crafted along
that apparent but artificial gender-neutrality. Indeed, there are no specific provisions
for women, except in Regulation 32 (Exception for provision of certain benefits based
on length of service). The Regulations are therefore an example of formal equality, as

opposed to substantive equality: as is underlined by Phillips, treating people equally
does not necessarily mean treating them identically (Phillips 1999: 22–30). As academics
have demonstrated the complex interaction between female gender and age, it becomes
apparent that the formal equality offered by the Regulations cannot protect women
adequately from ageist behaviour.
Conclusion
Ageism is a pressing societal issue, which is not restricted to the legal profession, as the
population over age 50 will soon represent a large segment of the working population
in European countries. Although this chapter only focused on solicitors within the legal
profession in England and Wales, mature applicants seem to face the same situation as
barristers when they try to obtain pupillage, as was reported by several interviewees.
The analysis presented here is no more than a case study, and the conclusions that may
be drawn from it are not meant to apply to other industries, particularly as the legal
profession is quite specific in the way it is organised, with a heritage as a closed and
patriarchal occupation.
Nonetheless, studying ageism in the context of law firms is an opportunity to look
more closely at the legislation against age discrimination, its virtues and its limitations.
What is more, looking at mature female entrants to the profession highlights one of
the facets of intersectionality, and helps demonstrate that the recognition of multiple
discrimination is an imperative if equality legislation is meant to offer good protection
against discriminatory beliefs and attitudes. Such an issue is particularly prominent
with regards to the Equality Act 2010, which encompasses the Age Regulations as well
as the majority of domestic equality legislation, with the intention of harmonising
discrimination law.
Although the Equality and Human Right Commission, launched in October 2007, is
meant to provide a platform for addressing issues of multiple discrimination, it is regrettable
that the approach to multiple discrimination adopted by the Equality Act is restricted to
dual discrimination (clause 14). The concerns raised by academic commentators on the
inadequate legislative protection for people experiencing multiple discrimination had
been taken into account at consultation stage, but it was finally considered that allowing
fully combined multiple claims would overcomplicate the law and place additional
burdens on both the private and public sectors, which may be unjustified: ‘we do not
have any evidence that in practice people are losing or failing to bring cases because they
involve more than one protected ground’ (Discrimination Law Review 2007: 123). This
reticence is further justified in the explanations published by the Government Equalities
Office (GEO, 2009: 2–3).
As was demonstrated in the first section, age and gender interact in ways that
produce very complex patterns. There is no denying that the intersection of these two
characteristics will be taken into account by the new legislation, which is a major step
forward. However, it remains that rejecting the necessity for multiple claims is bound to
weaken the protection offered by anti-discrimination legislation in the long run, notably
insofar as it forces victims of discrimination to fragment their experience and identity.
References
Adib, A. and Guerrier, Y. (2003). The interlocking of gender with nationality, race, ethnicity and
class: the narratives of women in hotel work. Gender, Work and Organization, 10:4, 413–432.
Age Positive (Department for Work and Pensions) (June 2007). Recruitment: Age Positive Guide.
Arber, S., Anderson, L. and Hoff, A. (2007). Changing approaches to gender and ageing. Current
Sociology, 55:2, 147–153.
Cole, B., Law Society Strategic Research Unit (2007). Trends in the Solicitors’ Profession. Annual
statistical report 2007. Available at: http://www.lawsociety.org.uk/aboutlawsociety/whatwedo/
researchandtrends/statisticalreport.law [accessed 28 October 2008].
Discrimination Law Review (June 2007). ‘A Framework for Fairness: Proposals for a Single Equality
Bill for Great Britain’. Consultation Paper. Available at: http://www.communities.gov.uk/
publications/communities/frameworkforfairnessconsultation.
Duncan, C. and Loretto, W. (2004). Never the right age? Gender and age-based discrimination in
employment. Gender, Work and Organization, 11:1, 95–115.
Department for Trade and Industry (DTI)(2006). Employment Equality (Age) Regulations 2006,
Notes on Regulations. Available at: http://www.berr.gov.uk/files/file27136.pdf [accessed 5
February 2009]
Farrar, J. (2003). Open University Law Society tackles age discrimination. The Lawyer. Available at:
http://www.thelawyer.com/cgi-bin/item.cgi?id=115257 [accessed 28 October 2008].
Feinstein, N. and Turner, A. (2007). Age concern. The Lawyer. Available at: http://www.thelawyer.
com/cgi-bin/item.cgi?id=129675 [accessed 28 October 2008].
Fredman, S. and Spencer, S. (2003). Age as an Equality Issue, Oxford: Hart Publishing.
GEO (2009). Explaining the Equality Bill: Dual Discrimination. Government Equalities Office. Available
at: http://www.equalities.gov.uk/equality_bill/explaining_the_equality_bill.aspx [accessed 6 May
2010].
—— (2008). Framework for a Fairer Future: The Equality Bill. Available at: http://www.equalities.gov.
uk/equality_bill.aspx [accessed 10 March 2009].
Grant, D. et al., (2006). Gender Discrimination and Ageist Perceptions: Final Report 2006. Executive
summary available at: http://www.ljmu.ac.uk/GDAP/index.htm [accessed 29 October 2008].
Hepple, B. (2003). ‘Age Discrimination in Employment: Implementing the Framework Directive
2000/78/EC’, in Fredman S. and Spencer S. (eds). Age as an Equality Issue, Oxford: Hart Publishing,
pp. 71–115.
Hopkins, P. and Pain, R. (2007). Geographies of age: thinking relationally. Area, 39:3, 287–294.
Jordan-Zachery, J.S. (2007). Am I a black woman or a woman who is black? A few thoughts on the
meaning of intersectionality. Politics & Gender, 3:2, 254–263.
Krekula, C. (2007). The intersection of age and gender. Current Sociology, 55:2, 155–171.
Law Society, (2006). ‘Be ready’, Practical Information on Age Issues for Solicitors. Available at http://www.
lawsociety.org.uk/documents/downloads/dynamic/beready_agediscrimination.pdf [accessed 28
October 2008].
Loretto, W., Duncan C. and White P.J. (2000). Ageism and employment: Controversies, ambiguities
and younger people’s perceptions. Ageing and Society, 20, 279–302.
Maguire, M. (1995). Women, age and education in the United Kingdom. Women’s Studies International
Forum, 18:5, 559–571.
McGlynn, C. (2003a). ‘The Status of Women Lawyers in the United Kingdom’, in Schultz, U. and
Shaw, G. (eds). Women in the World’s Legal Professions, Oxford: Hart Publishing, pp. 139–158.
—— (2003b). ‘Strategies for Reforming the English Solicitors’ Profession: An Analysis of the Business
Case for Sex Equality’, In Schultz, U. and Shaw, G. (eds). Women in the World’s Legal Professions,
Oxford: Hart Publishing, pp. 159–174.
Moore, S. (2007). Age as a factor defining older women’s experience of labour market participation
in the UK. Industrial Law Journal, 36:3, 383–387.
Phillips, A. (1999). Which Equalities Matter?, Cambridge: Polity Press.
Ruckin, C. (2007). Age discrimination laws incompatible with law firm employment regimes. Legal
Week. Available at: http://www.legalweek.com/legal-week/news/1182044/age-discrimination-
laws-incompatible-law-firm-employment-regimes [accessed 23 June 2009].
Taylor, P. and Walker, A. (1998). Employers and older workers: attitudes and employment practices.
Ageing and Society, 18:6, 641–658.
Tromans, R (2005). Key findings: Age concern, Legal Week. Available at: http://www.legalweek.com/
Articles/124987/Key+findings+Age+concern.html [accessed 1 March 2011].
Webley, L. and Duff, L. (2007). Women solicitors as a barometer for problems within the legal
profession – time to put values before profit? Journal of Law and Society, 34:3, 374–402.
Wyn, J. and White, R. (1997). Rethinking Youth, London: Sage.
17 The ‘Duty to Consider’:
chapter
How Employers are

Managing Requests from
Employees to Delay
Retirement
MATT FLYNN
Introduction
In October 2006, the government introduced employment regulations prohibiting age
discrimination in the workplace. The Employment Equality (Age) Regulations (EE(A)R)
2006 (SI 2006/1031) (hereafter referred to as the Age Regulations) cover a range of workplace
issues including pay, benefits, recruitment and redundancy; and were written to ensure
that workers are not treated less favourably as a result of age. While drafting the Age
Regulations, one of the most hotly contested issues which the then-Department of Trade
and Industry (DTI) (now the Department for Business, Innovation, and Skills (BIS)) faced
was how to regulate mandatory retirement. Prior to the regulations coming into effect,
employers were largely free to choose at what age mandatory retirement would be set.
During the period of consultation, the Chartered Institute of Personnel and Development
(CIPD) and Trades Union Congress (TUC) led a campaign to abolish mandatory retirement
ages completely – in other words, to restrict employers to dismissing individuals only
for reasons such as performance, conduct or redundancy. The employers’ group, the
Confederation of British Industry (CBI), on the other hand, campaigned strongly to
retain mandatory retirement, seeing this aspect of human resources (HR) policy as critical
for employers’ ability to manage workforce planning.
In the end, the then-Labour Government opted to set a ‘default retirement age’ of
65. An employer can lawfully dismiss an employee at the age of 65 without having to
justify the decision to dismiss. An employer can also set a retirement age below 65, but
would face what the government has called a ‘tough test’ (Age Positive Campaign 2006)
for objectively justifying the lower retirement age. Although employers are allowed to
compulsorily retire employees at 65 (or in some cases even younger), the Age Regulations
do impose a ‘duty to consider’ (DTI 2005, para. 1.10) requests to delay retirement. So long
as the employer follows the procedure set out in the Age Regulations for informing and
consulting the employee on the decision to retire, it can compulsorily retire the employee
without needing to justify its decision.
At the time, the Government stated that it ‘wants to move away from a culture
that retires people without regard to the contribution that they can still make to the
labour market’ (DTI 2005, para. 6.3.1). In framing the ‘duty to consider’ requests to delay
retirement, the Government aimed to give employers considerable flexibility in choosing
whether to retire or retain employees after 65. The ‘light touch’ (DTI 2005 para. 6.3.3)
approach taken in the Age Regulations was intended to ‘change the retirement culture in
this country.’ (DTI 2005, 4).
The ‘duty to consider’ is consistent with a ‘business case’ approach towards equality
which encourages employers to extend older workers’ working lives. Retaining older
workers is posited as having business advantages for employers in addressing skills and
labour shortages, enabling flexibility in workforce planning and retaining organisational
tacit knowledge (Bunt et al. 2005; Reilly et al. 2007). However, the approach has been
criticised for coupling equality goals with unrelated values (Duncan 2003; Forbes
1996); and putting equal opportunity public policy at the mercy of short-term market
conditions (Colling 1997; The Wainwright Trust 1997). The Government’s hope seemed
to be that business pressures, rather than legislation alone, would compel businesses to
allow workers to stay economically active beyond 65.
The regulations are largely non-prescriptive in terms of how employers should
consider requests to delay retirements. Factors it should take into consideration are;
how an extension of work should be organised; what reasons should be used to reject
a request; or even whether an employee should be informed of the reasons behind a
refusal. Although the Government at the time wanted to change workplace culture in
terms of how employers see older workers, there is very little regulation which would
compel them to do so (Flynn 2010).
When the 2006 Age Regulations were drafted, the Government pledged to review
the default retirement age by 2011. The review was subsequently brought forward a year,
but had not reached its conclusion at the time of the May 2010 general election. At
the time of writing, it is unclear whether the Conservative–Liberal Democrat coalition
government will abolish mandatory retirement. The Conservative manifesto for the 2010
election pledged to ‘look for ways how to abolish the default retirement age’, a rather
ambiguous statement which commits to abolition but not to timing.
In this chapter, employer practices with regards to managing requests from employees
to delay retirement are discussed. It is based on two sources of information. First, in
2008, a series of interviews was conducted with representatives of national organisations
which have either been consulted on or have been involved in implementing the Age
Regulations.1 Respondents were asked to discuss their views on the impact of the ‘duty
to consider’ on the management of retirement and how employers could make best use
of this provision of the age regulations. Second, in 2007, as part of a study conducted for
the Department for Work and Pensions (DWP) (McNair et al. 2007), 70 interviews were
conducted with managers from ten industrial sectors, covering senior and line managers
and Human Resources (HR) levels of organisations. During the interviews, managers were
1 Interviews were held with the Department for Work and Pensions (DWP); the Advisory, Conciliation, and Arbitration
Service (Acas); employer and management organisations: the Employers’ Forum on Age (EFA); the Confederation of
Business and Industry (CBI); the Chartered Institute of Personnel and Development(CIPD); trade unions, the Trades Union
Congress(TUC); advocacy groups on age, Age Concern England (ACE) and The Age and Employment Network(TAEN).
T h e ‘ D u t y t o C o n s i d e r ’ : R e q u e s t s t o D e l a y R e t i r e m e n t 237
asked to discuss their employers’ policies and practices in regard to managing retirements.
Managers were asked to discuss how requests to delay retirement are managed in their
organisations, what factors are taken into consideration when considering requests,
who makes the decision on whether to accede to a request, and under what kinds of
circumstances are older employees permitted to delay retirement.
The Government announced in 2009 that it would review the default retirement age
with a view to abolishing it. It had originally planned to review it in 2011, but brought
the date forward for political and economic reasons (HMG 2009). Recent Labour Force
Survey statistics suggest that, despite the current recession, the post-65 workforce has
moderately increased, which may have led Whitehall to conclude that employers are less
averse to employing people over 65 than initially thought.
The chapter has two objectives:
1. To discuss the ‘current state of play’ with regards to managing retirement.

2. To identify innovative approaches some employers are taking to enable older workers
to stay economically active longer.
There is scant evidence of the change in retirement culture which the Government
sought. For the most part, employers are continuing to use mostly informal processes to
manage requests from employees to delay retirement. However, managers seem to be
amenable to allowing older workers to continue past normal retirement age, and have found
business advantages in doing so, such as retaining company-based knowledge. A minority of
employers have developed novel approaches to managing the retirement process.
National Stakeholders’ Perspectives

The national debate over whether or not the Government should have outlawed
mandatory retirement has spilled over into a new dialogue about the effectiveness of the
Government’s compromise. According to the CBI, the default retirement age, coupled
with the duty to consider requests from older employees to continue working, has enabled
employers to find ways to help those employees who want to delay retirement to do so,
while retiring the majority ‘with dignity rather than dispute’ (CBI 2003). According to the
CBI interviewee, employers are open to retaining older workers, and are doing so even
though they have the ability to dismiss at 65.
Why would you [an employer] want to get [young graduates] in when you could have older
workers who have worked with you or with another company for many years who know what
they are up to and have the expertise who are also very hard to sack because they are very costly,
particularly if they are on the old staff and final salary schemes, very, very hard to get rid of.
The TUC, on the other hand, has argued that the regulations are having a negligible
effect on employer behaviour since employers have free reign in deciding whether or not
to retain employees who are 65 and older.
It is really just a process that you go through … If an employer’s decided they want someone to
retire they won’t take that process seriously because they don’t need to.
Others noted that the ‘duty to consider’ may, perversely, be persuading employers
to make retirement delays more difficult for older employees. The CIPD respondent, for
example, observed a ‘fear factor’ which is compelling small firms which hitherto had no
retirement ages, to apply the default retirement age to their workforces. An interviewee
from the DWP observed that some employers are enforcing a blanket policy of rejecting
requests.
Some [firms] are actually bringing in this default age as a new retirement age because they are
concerned that if they don’t have anything in, there is going to be an issue later on or they are
going to fall foul of having one person accepted or continuing working and letting another one
go … So, instead of doing that they will just get rid of everybody at 65.
Both the Advisory, Conciliation and Arbitration Services (Acas) and Age Concern
England (ACE) interviewees pointed to the right to appeal which offers limited recourse
for employees dissatisfied with the outcome of discussions with their managers. Under
the Age Regulations, employees whose requests are denied have the right to appeal the
decision. However, while the employer has a duty to inform the employee of the outcome
of a discussion of the request, it is not obliged to provide the reasons behind the decision.
The Acas respondent argued that discussing with employees why their requests had been
denied is good employer practice, but managers are reluctant to do so for fear of ‘saying
something stupid’ which could find them falling foul of employment law.
Despite the shortcomings of the regulations, interviewees did identify some ‘business
case’ reasons why employers are considering retaining employees beyond 65. The CBI
found from its survey of members that employers can be persuaded to retain staff who have
‘unique skills and company knowledge’. The CIPD interviewee felt that legal compliance
was the strongest motivating factor. Employers’ Forum on Age (EFA) respondents noted
that some, mainly large, employers are recognising that changing age demographics
mean fewer younger workers will be available long term, and labour demands necessitate
policies for retaining older ones.
If you don’t have enough people who are doing the job and the demographics mean that
you don’t have any other choice, then eventually it will level itself out […] the economy and
everything will balance itself out somehow without probably any intervention.
Larger organisations were thought to be more ‘age aware’ than most because, unlike
small employers, they have HR departments which can identify long-term labour market
issues and have a diversity brief. On the other hand, the DWP respondent felt small
employers are more likely than larger ones to implicitly manage in an age-neutral manner.
In smaller companies the strange or surprising thing is that we find that age is usually not as
big an issue as it is in the larger companies. In the small companies, usually 20 and below,
they will go on the capability of the individual to do the job rather than the actual age of the
individual.
Finally, the Acas representative noted that many employers, particularly in the retail
sector, are finding that older employees can redress labour shortages. It was argued,
however, that this could limit older workers into under-employment.
Basically it seems that these organisations are almost offering them muck jobs, if you know
what I mean. We employ these people over 65 but they are not in management positions or
whatever … I’d like to see whether those individuals were offered a chance for promotion,
development and so forth, and maybe they don’t want it which in this case is fine. It would be …
wrong if some organisations are held up as exemplars merely because they became employers
of older workers in rather poor, unskilled jobs.
Discussions with national stakeholders revealed a few key perspectives on the duty
to consider. First, there is a consensus that employers can be convinced of the business
reasons for allowing employees to delay retirement. However, reasons tend to be found
on a case-by-case basis rather than systematically. As a result, individual managers’
practices are driving decisions rather than organisational policies. Second, the Age
Regulations themselves seem to be having a limited, and perhaps even regressive, impact
on employers’ practices. Although the post-65 workforce has increased, this seems to
reflect more on employers’ resistance to recruiting and training new employees than
retaining older ones. Advocates for abolishing mandatory retirement age fear the duty to
consider is, to quote the TUC informant, ‘too fiddly’ and hard-pressed managers are more
likely now than before to retire everyone than run the risk of breaching the law.
Given these perspectives, it is now worth exploring employer practices. The next
section will focus on four questions:
1. What impact are the age regulations having on employer practices?

2. Are employers willing to allow people to work beyond 65, and what is convincing
them to do so?
3. How are managers handling requests from employees to delay retirement? and
4. Are there examples of good practice in use of ‘the duty to consider’ which can benefit
other employers?
Employer Practices
National stakeholders identified a number of issues surrounding the approach which
the Government has taken in regulating mandatory retirement. In particular, there is a
growing debate over whether the regulations are making employers more or less likely
to allow employees to delay retirement. In this section, the employers’ perspectives will
be heard.
What Impact are the Age Regulations Having on Employer Practices?
Perhaps the biggest question about the ‘duty to consider’ is whether it is changing the way
in which employers manage retirement. It is important to remember that, in drafting this
part of the law, the Government aimed not to just influence retirement practices at the
margins, but to change ‘culture that retires people without regard to the contribution’. As
noted above, respondents from Acas, TUC and TAEN, fear that the regulations may have
changed retirement practices for the worse. In other words, employers who would have,
in the past, considered requests from employees to delay retirement now no longer do so.
There are two countervailing theories of how employers should behave as a result
of the law. On the one hand, the Government rests its policies on the business case
approach to employment regulation: the theory that by being compelled to consider
requests from employees to delay retirement, employers will see the benefits of allowing
them to stay economically active. Critics, on the other hand, argue that employers rarely
react to new employment law in the ‘business case’ ideal. Rather, when confronted with
a new law, organisations will take measures to preserve established practices (Laughlin
1991). Because the ‘duty to consider’ is a ‘light touch’ approach to regulation, employers
will use their latitude to maintain the way they handle retirement.
There are some signs to support the critics’ viewpoint. In 2005, prior to the regulations
coming into effect, the DWP conducted a large survey of employers (Metcalf and
Meadows 2006). It found that only 37 per cent of employers set mandatory retirement
ages, and only seven per cent of organisations strictly enforced such policies. However,
of the 70 employers who were interviewed after the regulations came into effect, nearly
all (66) said that they had mandatory retirement ages, with the majority setting them at
65. Some employers, particularly smaller ones, were under the misconception that the
regulations require employers to set mandatory retirement ages, while others felt that
using the mandatory retirement age is the safest option. A trade association representing
small employers, for example, advised its members which had hitherto lacked retirement
policies, to set mandatory retirement ages:
What we are recommending now is [that] they have a proper age and retirement policy. It
should be the national 65 and that is when you retire, but now we have had to advise them
that they must have a proper retirement policy.
While this might suggest regression in terms of policy, employer practices may not
have changed so much. Most employers said that, while they have retirement policies,
they are willing to consider retaining employees beyond 65. For example, when asked
whether his workplace has a mandatory retirement age, one employer said:
Technically the answer is ‘yes at the moment’ but we have been receptive to requests for people
to carry on working beyond 65.
By contrast, an employer which did not have a mandatory retirement age prior to the
regulations indicated that his practice was to compulsorily retire employees:
Before, we would have not given it [retirement] consideration ... We are thinking now of
changing that to make it compulsory retirement because of failing capability ... physically and
mentally.
If retirement policies are the benchmark of the success of the Government’s efforts
to change the retirement culture, it would seem that the ‘duty to consider’ and default
retirement age are having either a neutral or negative effect. In the next section, the
impact of the regulations on employer practices will be discussed.
Are Employers Willing to Allow Workers to Delay Retirement?
Most managers who were interviewed said that they would be willing to consider requests
from employees to delay retirement, but only in cases in which there is an organisational
need. In some organisations where flexible working was routine, it was noted that the
assumption of managers would normally be that the employee would be allowed to
remain in work, as this manager in a social care home said:
Most care workers are working flexibly, so if someone wanted to stay, but work less, we can
usually accommodate them.
For most respondents, however, business need is paramount when deciding whether
to allow employees to delay retirement, reflected in the comments of a manager from a
business consultancy:
… as long as it fits in with the needs of the business, we are perfectly prepared to be flexible
with people.
For some managers, the issue of business need focused on labour shortages for specific
occupations. Such jobs, however, tended to be low-skilled ones which were hard to fill.
One respondent at a local school said:
We do have a lot of people [working past the age of 65], particularly in areas where in the past
we had difficulty recruiting, things like cleaners.
Another manager discussed his property management company’s use of older labour
to fill posts with undesirable working hours.
We have a requirement to get post on people’s desks by 9:30 in the morning. This means at the
moment that we have to employ people for two or three hours in the morning…. This work has
proven attractive to people who have retired.
An interesting example of a firm using older workers to fill vacancies was found in a
department store. The HR manager had previously worked for the store’s downtown rival,
and was aware that his former employer had a mandatory retirement age of 65. When
he had vacancies to fill, the manager would telephone former subordinates who had
formally retired, and ask them to work for his new employer!
Some managers discussed tacit knowledge retention as an important factor which is
taken into consideration. A small firm owner, for example, talked about his experience
of having key employees retire and losing important skills. He expressed regret for
overlooking opportunities to persuade them to delay retirement.
If this company were larger, we would regret losing this amount of skill.
An HR manager for a construction firm said work experience was important to his
firm. He noted that many of the basic skills needed in the construction industry are
‘pretty much the same since the Roman viaducts were built’. Therefore, older workers’
potential for passing knowledge on to younger colleagues is highly valued. Both his firm
and another large construction firm used post-65 year old employees’ skills in training
apprentices.
A manager in a large manufacturer noted her employer had changed its pension
rules to make it easier for employees to stay in work after formally retiring and drawing a
pension. The company had found that employees had to be brought back from retirement
as consultants which the firm found to be economically inefficient.
As the Acas interviewee suggested, some employers are using the post-65 workforce
as a source of labour to meet hard-to-fill vacancies or, as the CBI interviewee noted, to
retain skilled workers. However, some employers also see the ‘duty to consider’ as an
opportunity to retain skills and experience, at least for a fixed period of time during
which knowledge can be passed from older to younger workers. This would suggest that
an employee’s success in persuading her employer to delay her retirement would depend
to a great extent on her human capital. Firm-specific knowledge (Maxwell and D’Amico
1986) is particularly valuable to employers, especially in high-skilled industry. Knowledge
retention and hard-to-fill vacancies seem to be the two pillars on which the business case
rests.
How are Managers Handling Requests?
Having now considered in what circumstances employers would consider requests from
employees to delay retirement, it is now worth exploring how such decisions are made.
In most cases where requests had been considered, the process is informal, and usually
handled by the employee’s immediate line manager. Some small business owners said that
their practice, prior to the regulations coming in, was to automatically allow employees
to continue working. One personnel manager, for example, noted that while preparing
for the Age Regulations to come into effect, she was surprised to find three members of
staff who were over 65.
Another said that his organisation had a practice of letting people ‘carry on’, but
that the regulations now compel the organisation to formally go through the retirement
process. He felt that this change in policy was beneficial to both the organisation and the
employee since it forces a conversation about how work routine could be modified to
help the employee stay active longer:
In the past, I think if nobody gave them a clock at 65, I think they just carried on really. So, we
are probably very lax in not formally saying ‘you are now working beyond retirement age which
is why I have got to do something’.
In most cases, both prior to and after the Age Regulations came into effect,
responsibility for deciding whether an employee could delay retirement was given to her
or his immediate line manager. Respondents, particularly at the HR level, described line
managers as being best disposed towards assessing the individual worker’s performance
and the local labour demands. None of the respondents described a process which did
not include line managers, although in some cases, especially in large organisations, more
senior managers also had an input. In one organisation, for example, the chief executive
would need to sign off any extension of employment contract because requests to delay
retirement were unusual.
Since the Age Regulations came into effect, many respondents said that their
employers’ policies on considering requests had become more formalised:
Before [the Age Regulations], there wasn’t the process in place that there is now … it wasn’t a
formalised process, whereas now it is formalised and it is communicated.
A manager of a small firm similarly noted:
I think with being a small business or relatively small business … you tend to be more informal
on some of your policies and the tendency is only to have formal policies where maybe it makes
sense to or legislation states that you have got to have it.
The regulations could be seen, therefore, as a catalyst for formalisation of retirement

processes, especially within small organisations. Employers may be acting in a risk-averse
way to retain their ability to retire employees at or around 65. However, there is some
evidence that the formalisation of policies is clarifying the rights of employees to ask to
stay in work, and the duty on managers to consider such requests. In most workplaces,
line managers play the dominant role in considering requests from employees to delay
retirement. Formalisation of processes ensures that line managers are aware of the
obligation on them to inform employees of the firm’s plans to retire them; discuss with
them retirement options; and ensure the process is within the timeframe prescribed by
law.
While processes may be becoming more formalised, only a few HR departments are
providing line managers with guidance on how to help older workers stay employed
longer. In the last section, the innovative practice of two organisations will be discussed.
Are Employers Making Good Use of the ‘Duty to Consider’?
As can be seen through responses both from national stakeholders and employers, the
‘duty to consider’ seems to be having a negligible effect on the retirement culture. Most
employers appear to be maintaining retirement systems which leave such decisions to the
discretion of line managers. However, there are a few organisations which are adapting
their practices in order to enable older workers to delay retirement, two of which are
discussed below.
The first organisation is a small print company. Unlike many similar organisations,
the couple managing this firm opted to scrap its mandatory retirement age rather than
use the default retirement age. Although the Age Regulations were the catalyst for
reviewing its policies, the decision to jettison the firm’s retirement age was made for
personal reasons:
How did we decide [to abolish retirement age]? Well, we just thought, ‘We’re not going to
retire’.
The company was in the process of adopting a new personnel development system.
Although aimed at up-skilling their younger employees, they found that the process of
discussing career plans with older employees helped the firm manage retirements.
By talking with [older employees], we found that they didn’t necessarily want to retire, but
would like to reduce their working hours … We found that we could make arrangements which
were mutually beneficial.
The managers saw that the success of their approach to retirement lay in focusing not
just on their older employees’ retirement plans, but also career plans. This was thought
to enable employees to discuss alternatives to full retirement.
A second organisation taking a proactive approach to managing retirement was a
large university. Like most organisations, line managers were primarily responsible for
handling requests from their staff to delay retirement. The HR department employed ‘age
ambassadors’ who would advise line managers on phased retirement options.
Managers don’t always know that they can offer people shorter working hours or flexible
working. Our job is to lay out all the options for them.
The HR manager framed her department’s role more as monitoring than advising. She
argued that best practice necessitates a consistent approach to line managers’ decisions
throughout the organisation. At the time of the interview, the HR department was
developing guidelines for managers on handling requests from employees.
The two organisations took different approaches to managing retirement, but had
a common objective of fostering options for older workers which extend beyond either
carrying on with work arrangements or full retirement. Both employers recognised
that older workers could be persuaded to delay retirement if work could be organised
to suit their personal circumstances. However, the framework for discussing retirement,
as enumerated in the Age Regulations is too constrained to allow options to emerge.
Both organisations developed systems for encouraging line managers and employees to
consider options.
Conclusion
In adopting the ‘duty to consider’, the Labour Government took a novel approach to
regulating employer practices with regard to retirement. The ‘light-touch’ approach
was meant to change the retirement culture in British workplaces. Evidence from both
national stakeholders and employers suggest practices are unlikely to have changed very
much, if at all, as a result of the regulations.
However, many employers seem open to the idea of allowing their employees to delay
retirement and had, even prior to the Age Regulations, made arrangement to allow them
to do so on a temporary and informal basis. Older workers who have skills or knowledge
which are specific to their employers are in an especially good position to request a delay
in retirement.
There is some evidence that the Age Regulations have compelled employers,
particularly small ones, to review and formalise their retirement processes. In some
respects, for example, setting mandatory retirement ages where they had not previously
existed, the outcome has been more restrictive retirement policies. In other respects,
the process has become more transparent for employees and line managers who are the
principal actors in the retirement process.
The then Labour Government had pledged to review the Age Regulations by 2011
with a view to abolishing mandatory retirement completely (DTI 2005: 4). As noted
above, the coalition government has also committed to abolition, although changes in
the regulations may be delayed. It is not yet certain whether abolition will lead to an
increase in older workers’ labour market participation. Sweden and Norway both have
mandatory retirement ages of 67, and higher participation rates for people aged 65–67
than the UK (OECD 2006). If mandatory retirement does become unlawful, employers will
need clear processes for not only retiring employees, but also assessing their continued
employability and discussing their retirement options. As importantly, employers will
need to ensure that their line managers understand and follow formal processes and
avoid unlawful dismissals of older workers. In this respect, employers’ reaction to the
duty to consider can be seen less as a cultural change, and more as an incremental step
in the right direction.
References
Age Positive Campaign (2006), Age Legislation Factsheet Number 2, London: DWP.
Bunt, K., Adams, L., Carter, K. and Hopkins, I. (2005), Age Positive Business Case Studies, Sheffield:
Age Positive Group.
CBI (2003), CBI Response to Equality and Diversity: Age Matters, London: CBI.
Colling, T. (1997), Collective Bargaining and Equal Opportunities in Europe: The Case of British Gas in
the United Kingdom, Dublin: European Foundation for the Improvement of Living and Working
Conditions.
DTI (2005), Equality and Diversity, Coming of Age: Consultation on the Employment Equality Regulations
2006, London: DTI.
Duncan, C. (2003), ‘Assessing Anti-ageism Routes to Older Worker Re-engagement’, Work, Employment
and Society, 17(1), 101–120.
Flynn, M. (2010), ‘The United Kingdom Government’s “Business Case” Approach to the Regulation
of Retirement’, Ageing and Society, 30(4), 1–23.
Forbes, I. (1996), ‘The Privatization of Sex Equality Policy’, in J. Lovenduski and P. Norris eds, Women
in Politics, Oxford: Oxford University Press.
HM Government (2009), Building a Society for All Ages. Office of Public Sector Information, Guildford:
Surrey.
Laughlin, R. (1991), ‘Environmental Disturbances and Organizational Transitions and
Transformations: Some Alternative Models’, Organization Studies, 12(2), 209–232.
Maxwell, N.L. and D’Amico, R.J. (1986), ‘Employment and Wage Effects of Involuntary Job
Separation’, Academy of Management Review, 76, 373–377.
McNair, S., Flynn, M., and Dutton, Y. (2007), Employer Responses to an Ageing Workforce: a Qualitative
Study, London: Department of Work and Pensions.
Metcalf, H. and Meadows, P. (2006), Survey of Employers’ Policies, Practices and Preferences Relating to
Age, London: Department of Work and Pensions, p. 325.
OECD (2006), Live Longer, Work Longer: Synthesis Report, Brussels: OECD.
Reilly, R., Metcalf, H. and Forth, J. (2007), The Business Case for Equal Opportunities: An Econometric
Investigation, Norwich: Department for Work and Pensions,
The Wainwright Trust (1997), Decentralization and Devolution: The Impact on Equal Opportunities at
Work, The Wainwright Trust, Ware, Herts: Standon.
III Equality – New
part
Approaches
18 Measures to Tackle
chapter
Disadvantage and
Discrimination in Access
to Employment: The Role
of Employers
ANNa PaRaSKEVOpOULOU aND MONIKa BEUTEL
Introduction
This chapter addresses the complex nature of discrimination and disadvantage faced by
many in the UK labour market, by drawing on research that examined over 500 projects
in London which prepared individuals from disadvantaged groups for entry to the labour
market – the ‘3Ds London’ project (Beutel and Paraskevopoulou 2006). While other
chapters in this Handbook have considered the nature of discrimination in employment
or the workplace, this chapter focuses on the difficulties experienced by members of
disadvantaged and discriminated social groups in accessing employment. The analysis
and case studies1 undertaken as part of the ‘3Ds London’ research illustrate the complex
ways in which multiple disadvantage and discrimination combine to create barriers for
entry to the labour market. For example, ‘postcode discrimination’, low skills, lack of
work experience, age, gender, ethnicity, disability and refugee status are all shown to
be elements in how individuals face difficulties in gaining employment. However, the
research found examples of good practice that show how employers and other agencies
can successfully work together through targeted initiatives to improve the employment
opportunities of disadvantaged groups.
The ‘3Ds London’ research was carried out between 2005 and 2006 by the Working
Lives Research Institute (WLRI), with funding from the then London Learning and
Skills Councils (LSC) with European Social Funding (ESF). Over 500 projects in London
which aimed to increase the employability of disadvantaged groups were mapped and
analysed in the research. Included were projects offered by public, private and voluntary
sector training and employment organisations, often involving a partnership across
1 Research methods included a survey of over 500 projects, in-depth interviews with providers, project participants
and stakeholders, focus groups with project participants and employers and five case studies.
different sectors.2 The projects included in the analysis had sought out individuals
from groups that experience multiple disadvantages and discrimination in trying to
access employment, and helped them to enter employment, or at least to get closer to
the labour market. The projects did this through a combination of transferable skills
development, vocational and general skills training and work experience. Workless people
from particular social groups were targeted;3 project participants were either unemployed
(in receipt of Jobseekers Allowance or other benefits), or not in the labour market. A
considerable number of the participants had never been in employment, and some did
not necessarily aspire to paid work.
The projects analysed by ‘3Ds London’ were created with public funding and need to be
seen against the background of ‘welfare-to-work’ – the approach adopted since the 1990s
by governments in several Organisation for Economic Cooperation and Development
(OECD) countries, including the UK (OECD 1999). After a Labour government came
to power in Britain in 1997 it pursued welfare-to-work measures. Moving from benefits
into paid work was not only a labour market measure but was part of the government’s
strategy to combat poverty and social exclusion (Hirsch and Miller 2004). Welfare-to-
work became the linchpin of Labour’s social welfare reforms. Underlying it was a social
and moral agenda of equality of opportunity, personal responsibility and community
cohesion, the ‘third way’ (Giddens 2000). Greater economic and social opportunities, as
well as a greater sense of fulfilment, would be opened up for those individuals willing to
prepare for and take available work – including lone parents, disabled people and those
with other disadvantages. The case study examples presented later in this chapter provide
confirmation that these underlying suppositions can work well when there are incentives
and when individuals are highly motivated to participate in preparation for work, rather
than being compelled to do so.
New Deal programmes are the UK’s main welfare-to-work initiatives. New Deal
initiatives exist for groups who are under-represented in the labour market and/or are
characterised by high levels of long-term unemployment.4 The programmes provide
personal advisers and training; in some cases additional support measures and subsidised
jobs have been put in place, in order to move individuals out of unemployment and
benefit dependency and into sustainable employment.
However, not all groups that are at a disadvantage in the labour market and that tend
to experience discrimination when applying for jobs are covered by government initiatives
such as New Deal. Therefore a multitude of other projects that target disadvantaged
groups also exist, funded inter alia through European Union (EU) programmes or as pilot
projects by Learning and Skills Councils (LSCs). Such projects – often offered by third
2 For details see http://www.3DsLondon.info

3 The target groups were those defined within European Social Fund Objective 3 and included: Black and minority
ethnic groups (BME); refugees and asylum seekers; disabled people; 16–19 year olds not in employment, education or
training (NEET); older people (aged 50 or over); lone parents; homeless people; travellers; ex-offenders; drug and alcohol
misusers; people living in areas with high levels of deprivation; returners to the labour market; people made redundant;
long-term unemployed 12 months+; economic migrants.
4 The main New Deal programmes are for lone parents, the disabled, young people (18–24), for adults 25+ and people
over 50. New Deal programmes have been in existence since 1998. The UK government’s 2009 proposals for welfare
reform move towards a system whereby everyone claiming benefits will have to prepare for employment or risk benefit
cuts (with the exception of carers and those with serious disabilities), while at the same time increasing flexibility by
offering a more personalised regime in the support available for employment preparation.
Measures to Tackle Disadvantage and Discrimination in Access to Employment 251
sector organisations – were included in the analysis by ‘3Ds London’, alongside examples
of the mainstream programmes.
Members of groups experiencing multiple disadvantage and discrimination
encounter many barriers to labour market participation, including those related to caring
responsibilities, health or housing problems, and life-style related difficulties. Most, but
by no means all, of the groups that were targeted by the projects participating in the
research tended to have low basic and general skills levels, and were ill-equipped for
many of the higher skills jobs that characterised the growth sectors of London’s economy.
Furthermore, lack of recent (or of any) work experience was considered by project
stakeholders – project providers and participants, as well as funders and employers – to
be the most important factor preventing vulnerable and disadvantaged individuals from
being considered for job vacancies, or from obtaining job interviews, even after they had
been assisted in developing their skills and qualifications. The importance of employer
engagement with the projects was therefore repeatedly emphasised by stakeholders.
How the various barriers were tackled by project providers is explained more fully
below in the case study examples. Debates about the skills and employment relationship
and the role of employers within it have progressed since the ‘3Ds London’ analysis
was published in 2006 and the landscape of institutions has changed. Some of the
recommendations made in the ‘3Ds London’ report are not dissimilar to those made
in evaluations of large public programmes (Hasluck and Green 2007; Hirst et al. 2005;
Meadows 2006). Some of the good practice highlighted in the ‘3Ds London’ case studies
and recommendations are now being addressed in the context of recent changes in the
skills and employment relationships at local, regional and national levels, as well as in a
potentially more flexible approach to employment preparation. The research was carried
out during a period of high employment nationally but with Londoners experiencing
above average rates of worklessness. The continuing relevance of the experience and
recommendations of the ‘3Ds London’ research in economies that are experiencing
recession is explored in the conclusion.
Employability and Entry to Employment

Funders and other public stakeholders tended to see employment outcomes of beneficiaries
or participants as the main indicators of success of the projects that participated in the
‘3Ds London’ research. A project’s continuing funding may depend on such outcomes.
Consequently a large number of the projects included in the ‘3Ds London’ mapping
exercise, while focusing mainly on skills development, also included an element of work
experience or other employer engagement, short work experience placements, talks by
employers, employer involvement in mock interviews, or mentoring, to mention just a
few of the activities undertaken by employers to demonstrate their involvement. Some
of the engaged employers also participated in intermediate labour market initiatives and
provided subsidised work placements or work trials.
Offering ‘real life’ experience of employment was seen by many of the ‘3Ds London’
project stakeholders as a very important factor in motivating and assisting disadvantaged
and workless individuals. It was also seen as a way of demonstrating to employers the
commitment and skills of participants, as well as a way of overcoming possible employer
discrimination towards members of some the target groups.
Most provider organisations professed to work closely with employers and gave
examples of successful employment outcomes for particular project participants. However,
in the qualitative interviews with providers it was repeatedly stated that it was difficult
to set up long-term relationships with employers with whom project participants may
have a chance of gaining employment, let alone with employing organisations that are
able to recruit regularly from amongst workless individuals with low skill levels. Overall it
appeared that there were not enough employers willing to become involved in the goals
and objectives of such projects, or, put differently, there were too many projects chasing
too few willing employers with relevant vacancies. Not surprisingly, the few providers
with excellent employer contacts guarded these carefully.
The type of contact between providers and employers varied; some providers worked
mainly with small and medium-sized local businesses; others had been able to set up
a regular relationship with one or two large employers in the private or public sectors
with a declared commitment to corporate social responsibility and to employee diversity.
Each of these different approaches to employer involvement is exemplified in the case
studies below. The ‘3Ds London’ research found that overall 22 per cent of participants
of projects in the sample moved into employment and 30 per cent progressed to further
study, which is roughly on a par with larger government programmes. There was little
information on the sustainability of the employment outcomes of project participants.
Specialist third sector provider organisations may be best placed to recruit and develop
participants from the most underprivileged groups, but may find that they do not have
the right kind of employer links to help their participants into employment, as employers
tend to prefer to work with larger and well- established organisations such as colleges,
or with the large charities. Partnership working between different provider organisations
with complementary expertise is therefore considered to be the way forward to ensure that
each participant has access to a well thought-out and balanced programme that includes
not only guidance and training but also outreach before the start of the programme
and employer involvement during and after participants have completed the project or
programme.
The primary concern with employment outcomes – a characteristic that stems from
the welfare-to-work approach towards reducing disadvantage – was criticised by many
of the provider organisations interviewed. As the realisation that there is no ‘quick fix’
to boost skills and qualifications for employability has grown within the community of
skills and employment professionals, specifying detailed employment outcome targets is
increasingly considered to be misguided. Provider organisations often work in depth with
participants from disadvantaged groups before ‘entry to employment’ can be embraced by
these clients as a realistic personal goal. Experienced learning providers have argued that
excessive focus on outcome measures, rather than personal developmental objectives,
can lead to ignoring the needs of the ‘hard to reach’ and ‘hardest to help’.
In recent years more integrated employment and skills services have developed along
the lines advocated in the Leitch Review of Skills (2006) and its 2007 Implementation
Plan. These developments have led to increasing realisation by policymakers and funders
that learners from disadvantaged and discriminated groups may be several steps away
from labour market entry, yet are nevertheless gaining valuable personal and social
competences on programmes and projects that exist to assist their slow journey from
benefit dependency towards employment (Meadows 2006). Various attempts have been
made to define these personal and interpersonal skills and competences as successful
project outcomes, wherever entry to employment is not a realistic option for participants,
and as additional project achievements where it is. Different ways of recognising these
‘soft skills’ (such as communication, time keeping, team working and so on) have been
developed, but no single model of assessing and certifying them has yet been widely
accepted and implemented.5
These insights and developments may be considered to be at odds with the then
Government’s proposals in the Welfare Reform Act 2009 which meant that virtually
everyone of working age would be required to look for work and/or to prepare for work.
In addition to Jobseeker claimants this would also include a large proportion of disabled
people on Employment and Support Allowance (ESA) (formerly Incapacity Benefit)
as well as lone parents (with children aged 12 or over). ‘Conditionality’ means that –
depending on the length of time they have been out of work – greater expectations are
put on individuals who will have to make greater efforts to get work to continue their
entitlement to benefit. This punitive aspect was intended to be counter-balanced by
giving greater support in finding work to workless individuals through their personal
advisers and by involving a greater number of employers directly in the programmes.
The ‘3Ds London’ research found, however, that although there is much talk of
involving employers in helping those who are workless get ready for jobs, in practice
most employers tend not to see developing the future workforce as part of their business,
particularly when they do not have current skills shortages. But when they do get involved –
and there are some good examples of this in the research – it is often a beneficial two-way
process whereby support for workless individuals is also a development opportunity for
the employers’ existing staff.
Good Practice Case Studies

Five case studies were conducted for the ‘3Ds London’ research, which, together with
a survey, interviews and focus groups, have contributed to a model of critical success
factors which will be discussed in the following section. All case studies show that even in
the first steps of attempting to enter the labour market, beneficiaries face discrimination,
often on multiple grounds such as age, race/ethnicity or gender. The ‘good practice’
in each case study reveals methods that organisations and projects have employed to
remove such barriers.
Each of the following sections represents an example of an innovative project that
targets a specific group and brings together employers, provider organisations and
beneficiaries. This cooperation provides support for more sustainable employment
conditions or acquisition of market-related skills for vulnerable groups. Removing
barriers of social exclusion, the case studies demonstrate, is a major step towards
preventing long-term disengagement from the labour market. The case studies also show
that organisations provide support in similar ways by offering advice and guidance,
language and familiarisation with the British culture and outreach work. Moreover, the
5 Pilot programmes to assess and certify soft skills of individuals without few or no formal qualifications have been
developed inter alia in the context of EU projects, such as the EU Leonardo ‘Volicity’ project coordinated by London
Metropolitan University in 2007, an EU EQUAL project in 2004 involving the Kenward Trust. The Open College Network
(OCN) provides a national framework for such accreditations. At higher levels soft skills programmes have been accredited
by the Chartered Management Institute (CMI) in 2007 and accredited programmes also exist for IT professionals.
participation of employers is considered essential, and the case studies show that their
participation in projects is a necessary element of good practice.
All case studies were conducted in the second half of 2006. The research included semi-
structured interviews with members of the organisation, beneficiaries and employers.
There were also research observations of facilities offered to beneficiaries, experience
of classes provided and participation in employment events held by organisations.
Additional data comes from the literature and website supplied by the organisation.
BEARS Youth Challenge
Good practice in outreach work combined with guidance for young people living in areas with high
levels of deprivation
BEARS Youth Challenge was offered by Brent Educational Art Recreational Services. The
organisation was established in 1991 with the purpose of helping young people – aged
between 8 and 25 years and living on housing estates in Stonebridge and Harlesden – who
experience multiple barriers as a consequence of their physical environment and of social
problems such as family breakdown, underachievement in education, crime, lack of social
networks, participation in the informal economy and long-term unemployment.
All interviewees reported that young people from Stonebridge often experience discrimination
by employers and some prefer not to mention the location in their Curriculum Vitae (CV) when
applying for a job. One BEARS participant who had been helped by Hillside Housing Trust to
gain a short-term apprenticeship with a construction company, explained how difficult it is
for young people to gain employment because postcode discrimination is well established:
People hear about Stonebridge and assume that everyone from Stonebridge is involved …
there is discrimination … if you want any progress in your life then you need to get out of
Stonebridge.
Despite the substantial regeneration programme in the area an employer expressed the view
that ‘to achieve successful regeneration, more effort is needed to also regenerate the people’
and provide additional facilities for young people to ‘get them off the street’.
Good Practice: A combination of approaches that aim at ‘character development, lasting

qualities of good citizenship and appreciation and understanding of the positive values of
young people’s own community’ contribute to BEARS’ success. First, the provision of formal
and accredited qualifications offered outside mainstream educational institutions as part of
projects such as Entry to Employment (E2E) encourages educational achievement. Second,
the development of innovative outreach work using outreach workers who are residents in the
area. This brings the additional benefit of presence in neighbourhoods frequented by young
people and identification and intervention in ‘hotspots’ where drugs are sold and other crimes
are being committed. Most importantly the organisation adopts a ‘Never Give Up’ approach.
Third, the designing of projects in a creative way that includes activities to enable young
people to contribute their thoughts on running the project and to develop entrepreneurial
skills. An example includes a visit to a T-shirt design exhibition followed by a discussion with
the designer on how to start and run your own business. Fourth, the organisation has had a
presence in the estate for at least 15 years and has become known as an alternative route to
employment and education. Fifth, provision of systematic guidance by carrying out an initial
assessment and offering advice and help with CV writing even outside normal working hours.
Finally, BEARS has developed links with employers and their projects contain aspects of work
placements that can lead to full or part-time employment, for example some beneficiaries
found a job in the local hairdressing salon.
Building London Creating Futures
Good practice in innovative partnership between construction employers, local government and
colleges
Building London Creating Futures (BLCF) aims to find long-term employment for local people
in the construction industry. It is a collaboration between the public and private sectors, based
on a partnership of construction employers, training providers and community organisations,
local authority regeneration agencies and employment agencies. Coordinated by the London
Borough of Southwark, the project started in 2001 was funded by ESF Equal and has attracted
funding from a number of other regional, national and European sources. It is open to anyone
seeking employment in the construction industry, but is specifically designed to help people
who are under-represented in the construction workforce including ethnic minorities, lone
parents, mature workers, people with low or no skills, the long-term unemployed, women and
recent returners. Most participants join at entry level with low or no skills. Training includes
health and safety which enables them to obtain a CSCS Card.6 Beneficiaries are encouraged
to undertake training that will lead to a qualification, normally NVQ level 1 or 2, and there is
help with soft skills such as CV writing.
Support is provided by the project’s workplace coordinators (WPCs) who help recruit the
beneficiaries and match them to relevant opportunities, working with the partnership’s seven
construction companies. The costs are split between the private and public sector. The three-
step process of recruitment and support used by one of the BLCF construction partners is
outlined here:
• Mace is a large construction and project management company and a partner

to BLCF. The company was the principal constructor at Heathrow Terminal 5 and
employs a WPC as a social inclusion officer. The WPC works with local stakeholder
organisations such as Jobcentre Plus to find suitable candidates. The beneficiaries
are briefed by the WPC about the qualifications needed and interview procedures.
6 The Construction Skills Certification Scheme (CSCS) card is the passport to working on site in the construction
industry.
• Once employment is found the WPC will use the grants given by BLCF to develop
the individuals’ skills so that if they start as labourers they can then perhaps take an
NVQ1 or 2 to move up the ladder of construction skills and qualifications.
• The third stage is about making sure that these new entrants are well supported
and mentored in their new jobs. This could include giving general advice on work
such as reminding people to be punctual, helping them with travel planning, or
assisting them with their domestic arrangements, such as finding suitable childcare.
This relationship is designed to continue. There is also a bursary scheme provided
by Mace to support to beneficiaries through further programmes allowing students
from poor backgrounds to study construction-related degrees at university.
Good Practice: BLCF has had a high success rate which can be attributed to a number of
factors. First, it has strongly contributed to changing the image of construction which is still seen
as a white male-dominated sector. Some actions include encouragement of women WPCs
and banning a sexist workplace culture. Second, outreach work by focusing on disadvantaged
areas in Central London with the help of the project’s extensive partnerships. Third, the
tracking of beneficiaries which makes sure that the relationships with beneficiaries provide
continuing support. Fourth, employer links are ensured through a series of regular face-to-
face meetings with construction companies that have expressed an interest in the project.
The final factor is the provision of WPCs, and as these positions are co-financed by BLCF and
employers they are well-placed to recruit beneficiaries and to ensure the employers’ ongoing
commitment to the scheme.
MENCAP Pathway Project
Good practice in ‘job carving’ and the development of an innovative approach that matches the
needs of employers with the particular capabilities of beneficiaries with learning disabilities
The MENCAP Pathway Project in Sutton and Merton, South London, assists people with
learning disabilities to access employment. Sutton Pathways Employment Service has been
working in the London Borough of Sutton for 19 years and more recently also in the London
Borough of Merton. Pathways is the education and employment arm of MENCAP, the UK’s
leading learning disability charity. The Pathways initiative is a range of connected projects
and is being funded by a variety of sources, including ESF and Jobcentre Plus. The three main
projects are: Step by Step, a 26-week course of individually-based support for confidence
building, CV completion, job search skills, interview preparation and practice and work
experience; the Work Preparation Programme is a two-part programme consisting of a 12-week
classroom based pre-vocational training and an 8-week work placement module, offering
work experience; and Connexions to the World of Work is a partnership project between the
Connexions Service and Sutton Pathways that provides personal development modules and
work experience placements for young people with learning disabilities. The three categories
of projects help participants according to their needs but also offer progression for individuals
to move from one to another.
All three projects have a strong employment focus. MENCAP Pathways has introduced
‘job carving’ as a way of working with employers. This is an innovative way to find suitable
employment for people who, because of their health status can work only for a few hours
a day or for a few days a week: for example ‘a catering job, can be carved up with a few
hours dedicated to washing, dishwasher stacking and clearing tables and so on’ (MENCAP
interview). MENCAP found that this system has worked well and, for example, the London
Borough of Sutton Civic Offices employs Pathways clients in a range of roles.
The Pathways Employment Service is also working closely with a whole range of private
employers locally – large and small – including Sainsbury’s, Asda, Morrisons and UCI Cinemas
and promotes the benefits of employing people with learning disabilities. Additionally support
is offered to employers, such as disability awareness training, support workers for people on
work experience and access to grants for adaptations to premises and special equipment.
Pathways is also working with some employers on ‘work trials’, where a person with a learning
disability who is interested in applying for a job is given a week or two work trial rather than
going through a formal application and interview process. This gives the chance both to the
employer and the candidate to assess suitability and future chances of employment.
Good Practice: MENCAP Pathways Employment Service has been successful in helping
people with learning disabilities and attributes this success first to understanding the needs
of the target group. It has been able to design and offer a range of different programmes
tailored to the needs of individual clients. The pre-work training and advice coupled with
the work placement provide the clients with vital skills and experience. The provision of on-
going support is an essential part of MENCAP’s provision and part of an important network of
support that involves families, carers and the employers. So is working closely with employers
to look at flexible approaches to recruitment such as the work experience trial period as an
alternative to formal interviews which can be a real barrier for people with learning disabilities.
MENCAP has also worked closely with employees on job carving – two or three people filling
one post – providing flexible working conditions for people with learning disabilities. Finally,
MENCAP emphasise that employers who have a commitment to a diverse workforce are willing
to adapt their premises and their ways of working to accommodate a truly diverse workforce,
which can bring real benefits in terms of customer profile and staff morale.
Praxis
Integration of employability skills with opportunities to further vocational training for refugee and
BME groups
Praxis is an organisation based in East London that has operated for 20 years offering support
to new residents to integrate in the UK. The preparation course for the Supervised Practice
Programme prepares beneficiaries from refugee and BME groups for work in the health and
social care sectors, in close collaboration with employers. This programme started in 2000
and had helped over 140 beneficiaries by the end of 2006. Funding comes from different
sources including the Health Action Team, a local regeneration project made up of local
employers, such as the Barts and London Hospital Trust and the Tower Hamlets Primary Care
Trust; the Learning and Skills Council with ESF co-financing; London City Fringe funding and
other regeneration funds.
The programme consists of a 12-week course that helps Overseas Qualified Nurses (OQN)
prepare for the Supervised Practice Programme at hospitals and nursing homes. This
placement is necessary for them to get their PIN number which enables them to practise
in the UK. Components of the programme include ‘language and communication skills’,
‘orientation to nursing in the UK’, ‘employment preparation’ and ‘equalities’. Although the
course was discontinued in 2006 because there was no longer a serious shortage of nurses
in the NHS, its model has been transferred to courses for midwives and allied healthcare
professionals.
The project has seen between 70 to 80 per cent of participants gaining nursing employment
in the UK. A Nigerian nurse explained that the programme was beneficial for her in
terms of acquiring IT skills but also for learning communication skills in the UK workplace
environment:
In Nigeria they have the British-based knowledge about nursing but use different
terminologies. In Praxis, they put me through all the medical terms used in the UK. They
prepared me very well so that when I went to do my supervised practice, I didn’t find it
difficult in the ward.
Good Practice: The project was successful because it incorporated courses specific to
the target groups. These include, first the full preparation of participants for the Supervised
Practice Programme with the provision of training for language, general communication
skills and working culture in the UK. Praxis customised the project to take into consideration
the needs of the participants and the final outcomes that were required by employers.
It is innovative because, according to Praxis, ‘nobody else is doing it, or very few people
are doing it and Praxis courses enhanced participants’ skills by directly tackling barriers’.
Second, the provision of guidance for comprehensive job search skills such as help with
completing job applications or using websites that offer job vacancies. Third, additional
support after nurses leave the course is part of the project’s objectives and this is provided
through tutorials or by writing references for beneficiaries. Fourth, evaluation as a way
to improve project delivery is taken seriously and involves various steps: the completion
of evaluation forms by all participants; a meeting with tutors and staff on the course
to evaluate the programme; monitoring and evaluative feedback by funders; various
external evaluations. Finally, the project is linked to employers and work experience and
employers participate in teaching of the courses and in mock interview sessions. In this
way, employers get to know Praxis students and are more likely to give them employment
when suitable opportunities come up.
Tamil Refugee Training and Employment Centre
How gender is addressed separately within a BME group
The Tamil Refugee Training and Employment Centre (TR TEC) is one of three Tamil organisations
in London that offer services to Tamil refugees. A project ‘Skills for the Disadvantaged’ has been
developed to recruit members of the Tamil community, particularly women, and give them
support with language, employability and IT skills. The project ran for two years, completing
in 2006, and was funded by the LSC Pan London ESF co-financing programme. Over 3,000
individuals participated in the project, many of whom progressed to further education and
employment.
Good Practice: The project was developed to tackle multiple disadvantages such as ethnicity
and gender in innovative ways. First, increasing participants’ skills to compete in the labour
market was an essential element to foster inclusion in British society. TR TEC identified that
Tamil refugees’ access to the labour market can be hindered by language barriers, cultural
barriers, and insufficient IT skills, so the project addressed this with courses such as language
and communication skills or learning the cultural aspects of the UK’s labour market. Second,
the organisation targets women from the Tamil refugee community. It has been successful in
attracting women as their participation in the project increased from 20–30 per cent to
50–60 per cent within a few years. Recruiting women required an innovative solution: TR TEC
recognised that the problem with women’s low participation has cultural elements: married
women tend to stay at home interacting mainly with their own communities. The organisation
has 18 laptops with wireless connection which they take around Tamil community centres
and temples to encourage women to participate. They leave the laptops at a community
centre or temple for three days to get women interested in computers and subsequently the
organisation’s project. TR TEC also pays for childcare in order to support women’s ongoing
participation. Third, TR TEC provides guidance in terms of job search skills through access
to computers and the internet, CV and cover letter writing. Finally, the organisation has
established strong links to employers who provide work experience mostly in Tamil businesses.
TR TEC uses what it calls Tamil Yellow Pages to contact Tamil businesses, to convince them of
the benefits of taking participants on work experience. These businesses – because they are
Tamil and are aware that TR TEC is a charity – are often willing to help. TR TEC points out that
it is more difficult to place participants with non-Tamil employers. As the project manager
says: ‘it is difficult to persuade other employers to accept refugees as trainees. It could be due
to their accent, but we are still trying hard’.
A Model of Critical Success Factors: Explaining Successful

Intervention
The ‘3Ds London’ research has shown that a combination of internal and external factors
can make a difference to the opportunities for finding a job or acquiring qualifications for
people from groups that experience disadvantage and discrimination. The good practice
examples reported here demonstrate that a focused effort of partnership working between
provider organisations and employers, and from beneficiaries themselves in developing

their motivation and confidence, can work successfully in providing support into
employment or education. Figure 18.1 shows the essential bases and pillars of support
necessary for successful outcomes.
Participants
Engagement
Information, Continuing
Advice and Project Support
Guidance
Learning & Skills Development Childcare,
Work Interview and
Experience Travel Expenses
Awareness of diversity and needs of target group
Provider organisation (partnership)
For example benefits, care, health, housing

Interview and work experience
Other Support
Employers
Funding
Figure 18.1 A model of critical success factors: tackling disadvantage,

disengagement and discrimination
Funding base
Funding agencies help develop and deliver innovative projects aiming to provide support
to disadvantaged groups. Projects are funded in a number of different ways and funding
is generally channelled through provider organisations.
There is a strong need for support to be provided through three channels (shown as
pillars in the diagram). The first is providers who receive public funding and are usually
experienced in dealing with specific disadvantages. During the research providers often
reported on the multiplicity of disadvantage and the difficulty in identifying one over the
other. Second, employers need to take on board the diversity agenda and help local people
into employment either by providing work placements, apprenticeships or full/part-
time employment. Some of the case studies have demonstrated employer discrimination
practices but others have highlighted the benefits for employers of taking a flexible
approach to staff recruitment. Finally, other support from agencies outside the learning
and skills system such as health and housing was also identified as essential.
Projects
Funded projects are offered to participants by provider organisations. Projects that

include the following components appear to be most successful in making an impact on
participants’ ability to progress into employment:
• Information, advice and guidance (IAG) to ensure that the project is appropriate and
that the participant has a purpose and objective;
• learning and skills development, for example, skills for life or IT classes, apprenticeships,
employability skills such as CV writing;
• work experience or work placements, providers need to work closely with employers
to be able to give participants at least short-term work experience as well as interview
practice with feedback from the employer;
• financial support with travel, childcare and interview expenses, for example
appropriate clothing; and
• continuing support (for example, through mentoring) after a project ends to assist
participants in their job search and to maintain their motivation.
Participants
Project participants from disadvantaged backgrounds demonstrate engagement through

their participation. The successful application of the model can help increase motivation
and can lead to beneficiaries’ full participation as citizens and in the labour market. All
case studies have demonstrated the importance of combining all the measures shown in
the model when designing and carrying out projects to bring disadvantaged groups into
the labour market.
The Model of Critical Success Factors thus attempts to summarise the findings of the
‘3Ds London’ research in diagrammatic form. The different factors that the research has
shown to be central to tackling disadvantage and discrimination amongst vulnerable
groups include a combination of internal and external factors; internal factors relate to
project participants and their willingness and ability to engage with projects designed
to move them closer to the labour market and hence to self-reliance and to greater
engagement with a wider community. External factors include a comprehensive range
of effective support measures tailored to individuals’ particular needs, which in addition
to skills development may need to include involvement of health agencies or access to
appropriate housing. The main focus of the ‘3Ds London’ research was on the projects
provided by a range of organisations to give assistance and support to members of
disadvantaged groups and on the experience of the participants of such projects. However,
as the diagram shows, the role of employers and of the welfare state agencies is equally
as important. A closer link-up between the pillars – the agencies of the welfare state,
the organisations that develop learning and skills and the employment system – is now
developing, for example, in recent Government proposals for the reform of welfare and
through the important role of sector skills councils.
Conclusion
The ‘3Ds London’ research brought together information about a wide range of projects that
helped more than 145,000 Londoners from disadvantaged and discriminated social groups
to move from a state of worklessness into employment or get closer to the labour market,
thanks to increased personal and/or vocational skills, qualifications and work related
experience. Interviews gave useful insights into the experiences of project participants
and provider organisations, as well as employer and other stakeholder rationales for
giving their support to such projects. Their comments included suggestions for future
improvements, and some of the views expressed in this research – and also advocated by
other research (Hasluck and Green, 2007; Hirst et al. 2005) – may have helped influence
changes in policies and institutional frameworks. For example, the setting up of London’s
Employment and Skills Board by the Mayor of London in association with the London
Learning and Skills Councils, and consideration of similar institutions at national level,
are important steps in the direction of providing more integrated services to the workless.
Local Employment Partnerships were piloted in a number of areas and have now been
rolled out nationally to provide work trials for Jobcentre Plus clients, while integrated
Employment and Skills pilots started in London in early 2009. Bringing employers more
directly into the delivery of pre-employment support is a positive development as it can
facilitate a mutual understanding between government agencies, learning providers and
employers of the individual needs of members of disadvantaged groups as well as of the
contribution they can make to employing organisations and the economy. At the same
time, work placements or work trials help participants of these programmes gain realistic
insight into employment opportunities and current business practices.
Increasing use of the ‘business case for diversity’, together with a sense of corporate social
responsibility, has led to greater involvement by employers in projects for disadvantaged
groups. Corporate social responsibility involves taking the initiative to reflect and help
meet social and environmental concerns through the company’s activities, whereas the
business case for diversity argues for the advantages of reflecting the community within
which a company works – the ‘community’ being seen both as the recruiting ground as
well as the customer base for the company. Either or both of these approaches are practised
by responsible businesses and emphasise the importance of a businesses’ reputation in the
wider society. Employers’ greater involvement in projects for disadvantaged groups has
also been facilitated by the ‘trial’ nature of some programmes which enable an employer
‘to see what they get’ and when trials or placements are subsidised this is welcomed by
employers, particularly by smaller organisations.
The ‘3Ds London’ research made a case for a holistic approach to the needs of
disadvantaged groups and for collaboration between different agencies in order to tackle
the multiple disadvantages that are evidenced in low skills and worklessness. The nature
of the barriers to full participation in employment are different for each disadvantaged
group and in each individual case and hence a flexible personalised approach is most
appropriate. Evaluations of mainstream government programmes such as New Deal
and Pathways to Work (Hasluck and Green 2007) have also shown the importance of
individual personal support, of flexible delivery and of other support measures to remove
the barriers that make it difficult for members of disadvantaged groups to aim for – let
alone achieve – access to employment. The Gregg report (2008) proposed a personalised
support regime that includes consideration of a wide range of factors (including inter alia
time since last job, skill levels, care responsibilities, health and others). The details of
such a personalised package will also depend on whether someone is in principle work-
ready or progressing-to- work. Some of the Gregg report’s recommendations have been
integrated into the Welfare Reform Act 2009, that aims to improve employment outcomes
particularly for disadvantaged groups – but also gives disabled people greater control over
the way in which services are provided – as well as setting up a general expectation that
employment is a suitable and realistic goal for nearly all benefit claimants.
The projects discussed in the ‘3Ds London’ report, as well as the active labour market
measures promoted by government, were developed within a favourable economic
context when unemployment was low and the economy was growing. The recession that
developed in late 2008 makes it even more difficult for members of disadvantaged social
groups to gain a foothold on the employment ladder, particularly as the profile of those
now looking for jobs will include greater numbers with high levels of skills than was
the case before the economic downturn. The Welfare Reform Act 2009 put emphasis on
preparation for employment, however far from the labour market an individual claimant
might be, making it more likely that skill development and work-related activities will
continue to take place during economic recession. The Act’s pre-employment support
proposals may be capable of having more than a minor impact on discrimination and
inequality in access to work, particularly if indirectly supported by the provisions of
the Equality Act 2010 that places a major duty on public authorities to address socio-
economic disadvantage in their strategic planning. If a joined-up approach is sustained
it will create an enabling rather than a punitive context for welfare-to-work reforms
and will give more equal access and opportunities to compete for jobs to those from
disadvantaged backgrounds.
References
Beutel, M. and Paraskevopoulou, A. (2006) Tackling Disadvantage, Disengagement and Discrimination in
London’s Labour Market. “3Ds London” Final Report. London: Working Lives Research Institute.
Equality Act 2010 (2010) London: Stationery Office.
Giddens, A. (2000) The Third Way and its Critics. Cambridge: Polity.
Gregg, P. (2008) Realising Potential: A Vision for Personalised Conditionality and Support. An independent
report for the Department for Work and Pensions. London: Department for Work and Pensions.
Hasluck, C. and Green, A.E. (2007) What Works for Whom? A review of evidence and meta-analysis
for the Department for Work and Pensions. Research Report No. 407. London: Department for
Work and Pensions.
Hirsch, D. and Millar, J. (2004) Labour’s Welfare Reform: Progress to Date. Research Report. York:
Joseph Rowntree Foundation http://www.jrf.org.uk/knowledge/findings/foundations/n44.asp
Hirst, A., Tarling, R., Lefaucheaux, M., Rinne, S., Delvaux, J. and Marshall, B. (2005) Research into
Multiple Disadvantaged Groups in European Social Fund Objective 3 in England, Department for Work
and Pensions Research Report No. 286. London: Department for Work and Pensions.
Leitch Review of Skills (2006) Prosperity for All in the Global Economy – World Class Skills. Final Report.
London: HM Treasury.
Meadows, P. (2006) What Works with Tackling Worklessness? London: LDA and GLA Economics.
OECD (1999) The Local Dimension of Welfare-to-Work. An International Survey. Paris: OECD.
Ritchie, H., Casebourne, J. and Rick, J. (2005) Understanding Workless People and Communities: A
Literature Review. London: Department for Work and Pensions.
Welfare Reform Act 2009 (2009) London: Stationery Office.
19 ‘Eyes and Ears’ in the
chapter
Workplace:
The Developing Role of
Equality Representatives
SIAN MOORE
Introduction
The case for Equality Representatives (ERs) was made in the Trade Union Congress (TUC)
submission to the Women and Work Commission in 2005. The TUC believes that trade
union Equality Reps are uniquely placed to promote fairness in the workplace, first by
raising the equality agenda among fellow workers and their own unions, second by
encouraging employers to make equality and diversity part of mainstream collective
bargaining and third by working with vulnerable workers and trying to ensure that every
worker receives fair treatment irrespective of gender, race, disability, religion, age, gender
reassignment or sexuality (TUC 2009). The argument that they should have statutory
rights to paid time off, facilities and training was not accepted by the Commission, but it
did recommend that the Union Modernisation Fund (UMF) make available £5 million to
train and develop networks of Equality Reps and that unions and employers re-negotiate
recognition agreements on a voluntary basis in order to provide time off and facilities for
them (TUC 2009). The Labour Government made £1.5 million of UMF money available
for pilot projects ‘to help develop a union infrastructure to support the workplace
activities of equality representatives – for example through training and development’
(Equality Bill White Paper ‘Framework for a Fairer Future’). The TUC (2010) reported
that in addition to their own project for the training and development of ERs, there were
seven Equality Rep projects running in UNISON, Unite, the National Union of Teachers
(NUT), Prospect, Public and Commercial Services Union (PCS), the General Federation
of Trade Unions (GFTU), Connect and the Transport Salaried Staff’s Association (TSSA).
It expected that by the end of March 2010, there would be around 1,400 Equality Reps
active in organisations in both the private and public sectors (TUC, 2010), Although ERs
emerged before the introduction of the Equality Bill and the establishment of the single
Equality and Human Rights Commission to replace the previous equality bodies, the
prospect of a new legal context and particularly the recognition of seven equality strands
appears to have shaped the ER role.
This chapter explores the role of the ER in public services union UNISON, examines
early evidence of their impact in the workplace and discusses whether the role provides
a new route to activism. It considers how far their introduction represents a break
with UNISON’s tradition of self-organisation among groups facing discrimination, in
political as well as organisational terms, or whether the two approaches to equality are
compatible. The chapter is based upon the early findings of research on the ‘Establishing
Equality Reps in UNISON’ pilot project, which focused on the establishment, training
and development of ERs in UNISON as part of the union’s Equality Strategy (UNISON
Black Action, Winter 2009), as well as aiming to develop partnerships with employers
to effectively fulfil their statutory duty to promote equality. The Equality Act 2010 will
ensure public bodies report on equality issues, promote equality of opportunity as well
as making equality a legitimate factor in procurement (see Conley, Chapter 2). UNISON’s
Union Modernisation Fund (UMF) project explores how ERs can be agents of change in
these processes, looking at their engagement with employers and possible impact upon
service delivery and highlighting innovative partnership which goes beyond standard
collective bargaining machinery and processes.
The context of the research was established first through in-depth interviews with
three national officers involved with the project and/or UNISON’s Equality Strategy; and
with three regional officers, one from each of the pilot regions. These interviews clarified
the issues, expectations, targets, indicators of change and possible barriers. Second,
information was gathered through a survey of 18 ERs from 12 pilot branches based
on a short questionnaire survey distributed electronically and by post. This represents
about a third of the 57 ERs, from 40 organisations across the three regions, who have
participated in ER training. This initial survey covered the recruitment and characteristics
of ERs, initial training and support structures, early activity and equality issues within
the organisation and branch and union-employer structures for dealing with equality. Of
those responding 10 were female and 8 male; 2 defined themselves as Black British, 1 as
‘Black other’, 11 as White British and 4 as ‘White other’. Thirteen were over 40 and only
1 under 29 – 4 were between 27 and 39. Third, the report draws upon in-depth interviews
with 13 ERs and 2 Branch Equality Officers from the 3 regions – 6 male and 7 female and
4 Black (2 of them migrant workers and 2 Black British). The interviews focused upon
the factors which encouraged UNISON members to become ERs, particularly those who
were new activists. They explored their perceptions of their role and current activity
and barriers to activism, as well as the factors which allowed them to be effective. All
the interviews were based upon a semi-structured topic guide and were recorded and
transcribed with the participants’ consent.
Findings
Routes to Activism?
Across unions the ER initiative has been seen as not only improving representation on
equality activity, but providing new routes to activism for lesbian, gay, bisexual and
transgender (LGBT), disabled, black and minority ethnic (BME), young and women
workers. The TUC reported that their ER training courses have recruited a mixture of
new reps, existing reps adding a new role, and former reps wishing to remain active
‘ E y e s a n d E a r s ’ i n t h e W o r k p l a c e 267
(TUC 2009). In this way it argues that the ER initiative is helping to support and regenerate
workplace representation. A subsequent survey of 320 trained ERs found that 18 per cent
were new activists (TUC 2010). In UNISON during February and March 2009 ER training
courses were held in each of the 3 pilot regions with a total of 57 UNISON members
trained. Of the 57 participants, 61 per cent were women and of those where ethnicity was
given, 17 per cent were black (the majority from 1 region); of those where age was given,
17 per cent were under 40 and only one was under 30. Whilst this training attracted a
number of existing activists with an interest in equalities, it also identified a number of
members who were not active, but who were encouraged to attend by branch and regional
officers: in one region half of those trained were not existing activists. Over one third (39
per cent), or 7 of the 18 ERs in the survey, had never held a branch officer position – half
were currently shop stewards, 1 had been in the past, over one third (39 per cent) were
currently branch officers and 1 had been a branch officer in the past (most stewards were
also branch officers). ERs in the survey had been UNISON members for between 1 and
32 years, with a median of 10 years. The vast majority had attended a workplace meeting
(94 per cent) and a branch meeting (88 per cent). Whilst there is some evidence that
the ER role is providing new routes to activism for UNISON members, the fact that over
half had attended UNISON’s Delegate Conference confirms that a proportion of ERs are
experienced activists.
A number of ERs, who were stewards or branch officers or involved in Self-Organised
Groups (SOGs), were already active on equality issues and felt that the ER role was ‘a
natural development’ for them. For one ER in local government:
I tended to look more towards the equalities thing because I’m a disabled employee as well and
that sort of got my interest going.
(White female ER interviewee in local government)
For some the motivation to become an ER was an experience of discrimination in the

workplace, in particular where UNISON had taken up their case:
I had a problem with my employer and needed the support of the union, because of the support
that I got, and how good they were, I wanted to give something back and the way to give
something back is to become active yourself.
(White male ER interviewee in utilities)
Another ER had received no support and recognised a need for union representation
and had become an ER because of:
Personal experience – after five years of telling a manager of a colleague’s racist comments
and no support or action, I finally made a formal complaint which was very stressful and only
partially upheld due to complete lack of support from management – if I’d had an Equality Rep
to go to it could have helped a lot.
(ER survey)
Equality Representatives identified individual experiences of discrimination as a

symptom of collective relations at work – their desire to ensure others did not have to go
through something similar, but importantly the union’s response to discrimination and
the notion of ‘giving something back’ to the union, were the basis for their activism.
The Organisational Role
The distinctiveness of the ER role in UNISON is its focus upon the workplace; in contrast
the self-organised structures operate across branches and regions, as well as at the national
level of the union and one regional officer suggested that some activists could become
distanced from workplace issues. One Branch Equality Officer and ER saw the role of ERs
as being primarily ‘the eyes and ears of the union’ in the workplace, identifying issues
which could be taken up by the branch – in this they were sometimes seen as an advocate
or as empowering other members. As one ER put it:
I wanted to be able to help colleagues who are having problems at work but keeping it to
themselves out of fear of being isolated or victimised.
(Black male ER interviewee in Housing Association)
One of the ERs interviewed confirmed:
I think as reps our job really would be more to identify where the inequality is and what the
issues are and then present them to the branch officer, and then we will take it from there.
(White male ER interviewee in Local Government)
One key issue emerging from the interviews was the capacity of ERs to challenge
attitudes at the level of the workplace. This ER in a call centre gives an example:
One of the lads was talking to him and one went ‘oh you’re so gay’. And I looked and he went
‘I’m so sorry, I didn’t mean it like that’. I said ‘I know how you meant it, but what I want you
to do is think of why you actually used that word. You used it like being gay is a bad thing, is
being gay bad?’ and he was like ‘no’. I said ‘so think about it’. So it’s just little bits like that,
but I just think that’s ignorance and education, I don’t think for one minute they’re being
homophobic or anything like that. It’s just raising awareness.
Unlike other unions UNISON had made a decision that ERs would not take individual
discrimination cases, although they may provide support for members involved in such
cases. Similarly they might identify equal pay cases, but these would be referred upwards
through the union. The reluctance to let ERs take on individual representation was
partly because of a concern not to overload or scare off new activists, but also because
representatives taking individual cases must have accreditation – ERs might take cases if
they were already shop stewards or if they decided to undertake the required training. In
the survey ERs primarily saw their role as providing information to members and non-
members about equality issues and promoting awareness of equality legislation in the
branch. However this was followed in importance by representing individual members
on equality issues, suggesting that ERs themselves felt this was part of their role.
According to the TUC the ER role in some unions will be largely a campaigning,
support or championing one, whereas others intend ERs to be full members of the
negotiating team (TUC 2009). In UNISON a number of regional officers did not initially
anticipate that ERs would have a formal negotiating role, as one put it:
The proof will be in the eating of the pudding but I’m still not 100 per cent sure that people
understand that the Equality Rep finds issues, that it’s not their role to negotiate or to deal with
cases. It was emphasised very much in the training course but I still think there are some people
who think it’s about dealing with cases.
(Regional Officer)
It was conceded that ERs might negotiate with local managers over local workplace
issues and this workplace role was reflected in the issues that ERs had taken up so far; for
example one was having informal discussions with local management about disability
access in the move to another office. Another had taken up access to training for a
part-time worker with a local manager. A number of the ERs interviewed had a broad
perception of the role and felt that, with support, they could both negotiate over equality
issues with management and represent members. A new ER without other responsibilities
felt she had the capacity to take on a range of tasks:
Well, first and foremost obviously I see it as for members, for somebody for members to come
to if they’ve got a difficulty with an equalities issue. And then, I mean I know we don’t do any
casework, we have to then pass that along, but we would be the first port of call. And I also
see us as a consultative element and a negotiating element, definitely. That’s the way I would
like it anyway.
(White female ER interviewee in Local Government)
In the survey under half (44 per cent) reported having had meetings or discussions
with management. Such discussions had included maternity leave, attitudes within
the organisation and ways to audit these and responsibilities under the Disability
Discrimination Act. A third said the branch had discussed the organisation’s responsibilities
under equalities legislation with the employer – in one case this involved the extension
of working life beyond the ‘standard’ retirement age, in another the monitoring and
evaluation of a recruitment drive and in another the public sector equality duty.
In local government, the police service and health sector the public sector equality
duties had prompted the establishment of employer consultative bodies or staff forums
for Black and Minority Ethnic, women, disabled and LGBT workers. Some ERs attended
these groups and raised issues through them, although in a few cases there appeared to
be confusion as to whether they were attending them in a work or union capacity and it
was sometimes unclear whether there was formal union representation. Ironically, while
it was UNISON that historically has led the way on self-organisation, these more recent
staff bodies may serve to replace or undermine union self-organisation in branches. The
danger here is that it may suggest to workers that employer activity in these areas is
sufficient, despite the limited powers of such bodies and the fact that often they have
been established to meet legislative requirements to consult particular groups in the
workplace.
The emphasis on the listening and information role of the ER at the expense of
negotiation may reinforce a focus upon individual rights within the workplace rather
than mobilising members around collective issues; there may also be an implication that
ERs have a secondary status as representatives. Daniels and McIlroy (2009: 140) have
suggested that the roles of both ERs and Union Learning Reps are constrained because
they do not involve collective bargaining and joint regulation. Colling and Dickens (1989)
earlier noted the exclusion of equality issues in collective bargaining and attributed this,
in part, to the low levels of representation amongst women in the collective bargaining
machinery. Danieli (2006) has challenged the gendered nature of industrial relations and
the historic assumption that social and personal relations, including gender relations,
are not its legitimate concern. She notes that more recently issues arising from wider
social relations – sexual harassment and domestic violence for example – have become
legitimate issues for inclusion in collective agreements (2006: 332). At the same time,
Healy et al. (2004) have challenged the dichotomous and unidirectional relationship
often posed between individualism and collectivism. They argue that differentiation of
the workforce in terms of gender, race and ethnicity can lead to new forms of collectivism
and that ‘assumptions of a homogeneous form of collectivism are unfounded’ (2004:
463). Although the ERs participating in the study had only been in post a few months,
a number were actively taking up equality issues, in some cases reflecting or framing
their existing activity. The early accounts of ER activity suggest that the identification of
individual issues arising from such differentiation was not counter-posed to the collective
since it was anticipated that issues would be generalised.
A major issue for ERs is the invisibility of equality issues in the workplace and
organisation. Regional officers saw the ER project as key to integrating and mainstreaming
equality into organisational and branch activity. Other issues that came up were sickness
absence policies and their effect on workers with disabilities, performance appraisal, work–
life balance, flexible working, and maternity and paternity leave. One ER mentioned
the equality impact of her organisation’s inclement weather policy, where she felt the
requirements for attendance during heavy snowfalls worked against employees with
school-age children. An example of an ER providing a collective framework for individual
issues was in the utilities sector where the ER had taken up car parking for disabled
members following the relocation of the organisation:
The disabled parking is one – there are individuals in it, initially it was just one and then
another and then another, so I suppose initially I took on the individual [cases]. It just happened
that you ended up with five sorts of group things and now we’re negotiating on a bigger picture
with the company. We’ve suggested to them that they need to apply for planning permission
outside, something that they said they wouldn’t, but then when I showed them the Disability
Discrimination Act document that said there is a right to request reasonable adjustment, they
are now doing it. So it’s a bit of both.
(White male ER interviewee in Utilities)
This issue involved the ER leading on negotiations with management, although

he was already a branch officer and this may indicate the importance of ERs having a
negotiating role or direct access to negotiations at organisational level.
In one local government branch two ERs were concerned about the equality impact of
a council reorganisation, which included the relocation of offices outside the city and the
introduction of hot-desking. They were convinced that this reorganisation would have
a disproportionate impact upon women workers, since there was no public transport
and unsocial hours working would raise safety issues, whilst hot-desking had particular
implications for workers with disabilities:
They [the council] have not had a full equalities impact assessment done – and we are kicking
and kicking and kicking about this.
These ERs also needed to convince branch officers involved in negotiations on the
reorganisation that there was a detrimental impact on equality. As one ER said ‘I think
I’ve been stepping on quite a few toes actually.’ Both were prepared to become involved
in negotiating and campaigning on the issue and there were discussions about the ERs
taking up a role on the Council Employee Consultative Committee where they would be
able to communicate directly with local councillors over the issue.
Statutory Rights
The Women and Work Commission was divided on the issue of statutory rights for
ERs. Whilst some felt that, ‘Without this, equality reps would not be sufficiently
effective nor achieve their potential for adding value in the workplace’, others were
unconvinced, although the Commission recognised that unions and employers would
‘need to reach agreement to give equality reps paid time off for training to carry out
their duties and facilities’ (Women and Work Commission 2006: 86). Despite union
lobbying, the Equality Act 2010 has not conceded statutory rights. In the UNISON
survey, where ERs already held a position in the branch time off tended not to be a
major issue since they used their existing facility time. In the survey of ERs 8 out of 18
(under one half) said that they got time off to undertake their role as an ER, another
4 said that they expected to get time off and 4 did not get time off (2 were unsure).
However, all respondents and interviewees perceived the main barrier to fulfilling the
ER role to be the absence of statutory support and the difficulties of securing paid time
off. There was a feeling that most would not get time off to undertake their specific
duties as an ER or that it would be dependent upon individual managers or upon the
interest of the organisation in equality at a particular moment. One possible response
is for branches to reallocate existing facility time, as a national officer put it:
Obviously most branches, not all, have a facility time agreement with their employer. I
guess as a union we would need to argue that the equality rep or reps had some of that
facility time or that we try to negotiate additional facility time at local level for the equality
reps.
(National Officer)
However, one regional officer acknowledged that branch officers could be ‘gatekeepers’
to the extension of time off for new representatives. Another considered that ERs might
be loath to ask employers for time off since in the context of staff cuts they would have
to catch up with their work or would feel that they were placing extra pressure on their
colleagues. Reflecting this, one of the survey respondents said they needed further
training, but feared that they would not be able to get time off due to their workload.
Regional Officers also acknowledged that UNISON representatives in general did much of
their union work in their spare time, yet, for ERs there may be specific issues, especially
for representatives with caring responsibilities. One regional officer suggested that the
existence of role models who committed high levels of their own time and energy to
union activity could act as a deterrent to the emergence of new activists. In relation
to this point, seven of the 18 (over one third) respondents to the ER survey had caring
responsibilities and two worked part time. One of the latter felt that part-time work was
an obstacle; ‘management don’t take any notice’. Regional officers expressed fears that
ERs could become isolated, unsupported and overloaded, in particular where they covered
a large number of workers or workplaces or different departments; in the survey half (50
per cent) said that they represented a particular workplace or department, under half did
not and thus had a wider remit.
Integration
Research on union learning has highlighted concerns that it might develop separately
from core union activity and that Union Learning Representatives (ULRs) may not be
integrated into the wider union (Moore 2009). National officers emphasised that ERs
should be integrated into wider union structures, organisation and agendas. They stressed
the importance of developing a team of ERs, a ‘branch equality team’, coordinated by the
Branch Equality Officer (BEO), which would be the means by which ERs fed into branch
structures, including the negotiating agenda. In some cases it was anticipated that ERs
would be on branch executives or committees, depending upon the branch structure; in
other cases the BEO would represent their interests. A number of the ERs were already
on branch committees or executives in their capacity as branch officers. The BEO would
also act as the link with the Branch Assessment process, which ensures that branches are
focused upon national union strategies, including ensuring that equality is central to
UNISON branch activity.
Self-Organisation
Healy and Kirton (2000: 357) argue that over the ten years between 1987 and 1997
there was a shift in UK trade unions ‘from a liberal approach to more pro-active separate
organising’. Kirton and Greene (2002) utilise Jewson and Mason’s (1986) liberal and
radical conceptions of equality to consider positive action strategies in UK unions.
They conclude that in terms of improving women’s participation, radical measures
involving women’s separate organisation have proved more successful than liberal
measures designed to overcome barriers to women’s participation. Humphrey (2000)
also emphasises the role of self-organisation in promoting a ‘diversified democracy’ and
equalities agenda, distinguishing between self-organisation and separatism and arguing
that self-organisation derives from exclusion or subordination ‘within a wider polity’ and
has the aim of inclusion into that polity, or integration on more equitable terms’ as part
of the quest for self-governance (2000: 265). Whilst UNISON retains its commitment to
self-organisation, the development of Equality Reps represents a new and different model
of addressing inequality, informed by distinctive political and organisational discourses.
Humphrey suggests that self-organisation is a way to mobilise groups that are historically
excluded from the union and to reflect wider social identities in union strategy and
activity, but she also acknowledges critiques of self-organisation; their bureaucratisation
within the union apparatus and the essentialism and exclusion which may be inherent to
identity politics. Briskin (1999: 549) has suggested that increasingly the mainstreaming
of women’s issues means that there may be a trend away from women organising in
separate structures and towards the integration of equal opportunities into mainstream
structures and systems. In response to this she argues that women’s continued success
in unions ‘depends upon maintaining a strategic balance between autonomy from the
structures and practices of the labor movement, and integration (or mainstreaming) into
those structures’.
The potential of ERs to represent a range of inequalities may signify a more inclusive
approach as one Regional Officer commented:
By not putting everything in[to] self-organisation, that allows other people to come in, and that
was what they had hoped with equality reps really that it was very clearly an opportunity for
other people to get involved.
(Regional Officer)
One National Officer suggested:
One of the benefits I think about the [equality] rep role is that it means that anybody can be an
activist around equalities without having to identify as one of the self organised, as part of one of
the groups, who might be experiencing discrimination. So you could have somebody who’s a white
middle aged guy who cares about these things and wants to get involved and wants to do stuff
and has got lots of good skills to bring to it, and they can do that. Or you might have someone
who is disabled or gay, but doesn’t want to be out, but would like to do something. So you can be
involved in it without having to be discriminated against or without having to be out.
(National Officer)
Two of the ERs interviewed were white heterosexual men who had developed an
interest in equality issues, one had a background in male-dominated heavy industry and
was now trying to come to terms with working in a more mixed workplace in terms of
gender and ethnicity – in this case becoming an ER was about personal education and
development. The other also worked in a mixed workforce in a city council:
I just thought it would be a good thing to get in on and find out a little bit more about and
hopefully help to get a bit of equality across the board, because people always see equality as
being a race thing or a gender thing but there are many different types of inequality. And not
everybody, including myself, you don’t know a lot about it to be honest, and that’s what I was
hoping – one to maybe gain a little bit more knowledge and two to maybe make a difference.
(White male ER interviewee in Local Government)
Interviews with ERs suggest that for some their conception of equality may be wider
and more abstract than UNISON’s historical focus upon gender, race, sexuality and
disability as social divisions requiring specific organisation. As one Regional Officer put
it:
I think it’s because … equalities is such a wide umbrella that nearly everybody has some aspect
that they’re particularly interested in, whether it’s from a caring responsibility, whether it’s
from discrimination.
(Regional Officer)
UNISON’s promotional material for the ER appeals to a general notion of fairness

(‘Are you interested in fairness in the workplace?’) and this was reflected by participants
when they discussed their motivations, for example, ‘I think everybody should be treated
fairly, no matter what race, sexuality and so on’. For one ER:
I’m very focused on things being, they should be fair and things should be accessible and equal
to all. I don’t like bullies and I don’t like intimidation and things like that. And I think equality
should be accessible for all and that should be the norm.
(White gay male ER interviewee in utilities)
Similarly for another ER, who was also involved in the Regional Disabled Workers’
Group:
I don’t like to see unfairness and I think a lot of people as well, even without meaning
to be unfair, do not realise what possibilities there are with adapting hours in work or
special provisions. So I do tend to jump in and say well if you go to Occ[upational] Health
they can advise you on this and it’s just general day to day things, I just don’t like seeing
unfairness.
The interviews may also reflect more recent policy discourses, including those in
public sector organisations, which emphasise diversity, rather than equality. At the same
time the emergence of ERs resonates with the wider definition of equality contained in
the Equality Act 2010 and establishment of the Equality and Human Rights Commission,
which provide a new legal and political context that recognises the complexity of
disadvantage and the interaction of a wider range of discriminations including class, race,
ethnicity, gender, sexuality, disability and age. A national officer anticipated that ERs
would ‘pick up broadly the strands of the legislation’, so in addition to covering gender,
race and disability they would extend their role to covering new duties including sexual
orientation, religion or belief and age.
The focus amongst ERs on a wider notion of equality and fairness is distinct from the
stronger ideologies that characterised the emergence of self-organisation, through the
collective mobilisation of identities ‘embedded in wider histories of social movements’
(Humphrey 2000: 263). Although a number of the ERs were members of SOGs, their
narratives often did not articulate a strong sense of identity with one particular group or
reflect the kind of self-identified politics that might be expected from such membership.
Around two thirds of respondents in the survey reported that there was a Black Workers’
Group, LGBT Group or Disabled Workers’ Group and nearly three quarters a Women’s
Group in their branches – 6 of 18 (one third) were Self-Organised Group (SOG) reps.
However, in general whilst there were active SOGs at regional level, activity at branch
level was weaker. Waddington and Kerr’s (2009: 43) recent examination of UNISON’s
National Organising and Recruitment Strategy (NORS) questions the role of the SOGs
and concludes that they have ‘tended to focus their activities on regional and national-
led activities rather than those at workplace or branch level where NORS activities are
concentrated’. Regional officers commented that self organisation, in breaking down
equality into strands, could be divisive and isolate the struggle for equality from the
branch. They were concerned about the marginalisation of equality and one wanted
to see wider representation of those from SOGs on branch committees in a way which
would break down barriers to representation. In terms of the ER role in one branch there
was a view that some specialisation was an advantage, suggesting how self-organisation
and ERs could be complementary:
The other equality officer, she’s also the young members officer as well, because although
equalities covers the spectrum, the way we sort of envisage it is that although I would have a
broad spectrum of all the equalities, it’s nice that you’ve then got a specialist within that role,
to look at for example the LGBT strand, young members, disabled members. It’s not saying that
only that person will deal with it, it just means that person will take an extra bit of attention
and maybe read up more on it so that they become the expert in that.
The survey of ERs suggests a close relationship between themselves and the SOGs. A
number of ERs were members of regional or (to a lesser degree) branch SOGs. Three of
those in the survey were members of the Black Workers’ Group; five of the LGBT group;
one of a Disabled Workers’ Group and one of a Women’s Group. Two thirds had attended
a branch SOG meeting and just under half a regional equality meeting. One black ER had
taken up the role after he had attended UNISON Black Members’ Conference as a new
member; he had also just become the Black Members’ Officer. Nine (one half) of the 18
ERs in the survey said that they acted as a link between SOGs and the branch.
Equality Representatives who were not involved in SOGs also appeared to be
committed to self-organisation as an idea:
I think it’s good that you have self-organised groups to cater for people with different needs.
I think the only thing you need to be careful with is that the groups don’t become too exclusive
and isolated from mainstream society.
There was a view that the development of ERs could potentially stimulate or strengthen
self-organisation in the branches – something borne out by one ER:
I think it’s [self-organisation] really essential and I think there should be more of it really. In
our branch there are two groups, we don’t have a disabled members’ group and I just think
that’s really essential to the branch. It’s one of the things I’d like to be involved with as an
equality rep.
Equality Representatives were seen as an addition rather than as substituting for or

undermining self-organisation: for one regional officer:
So self-organisation should be part of the package that we’re looking at around the equalities,
but it might be mixed in different areas; but it’s an ideal opportunity– the equality reps are an
ideal opportunity to get that up and running in branches.
(Regional Officer)
Equality Representatives appear to be compatible with self-organisation, despite being

distinctive in political terms and having a different organisational basis.
Conclusions
An early evaluation of UNISON’s ‘Establishing Equality Reps in UNISON’ pilot project
suggests that it is providing new routes to activism for some members, but also attracting
existing activists, who may reframe their activity. Whilst the role of the ER could reinforce
trends towards the individual representation of workers at the expense of collective
organisation, the evidence here supports Healy et al’s (2004) assertion that the line between
the individual and collective is often posed too rigidly – there is evidence that ERs were
generalising individual equality issues and taking them up collectively. The role of ERs
in taking up discrimination and the abuse of managerial prerogative at the level of the
workplace should not be devalued and this is particularly true of workplaces in privatised
services where there is weak or no union recognition. There remains, however, a danger
that the potential exclusion of ERs from collective bargaining and formal representation
may reduce them to a secondary type of representative, with the unintentional effect of
reproducing social divisions in the workplace in union organisation.
ERs appear to have a broad commitment to a general concept of equality and fairness,
which appears to be distinct from the politics of self-organisation, although it did not
involve a rejection of self-organisation and is compatible with it. This inclusive notion
of equality may facilitate a wider involvement in challenging discrimination, whilst the
emphasis on the workplace distinguishes ER from SOG activity, which may focus more
on the internal processes of the union. Virdee and Grint’s (1994: 205) qualified support
for self-organisation was based upon evidence that ‘anti-racism in practice is critically
dependent upon the existence and actions of a caucus of black and minority activists,
often operating in relative autonomy from – but with the support of – the main union’.
The question remains as to whether ERs will be able to mobilise resources to challenge
specific forms of discrimination as effectively as self-organised groups can do, or, as Healy
and Kirton (2000: 358) put it, to address the structural constraints of union bureaucracy
and democracy to achieve ‘the more contested transformational change’. It may be that,
as Virdee and Grint (1994: 214) concluded for black and minority ethnic workers, a flexible
combination of self-organised groups and more conventional union organisation –
accommodating ERs organised at the level of the workplace – is most likely to succeed.
References
Briskin, L. (1999) ‘Autonomy, diversity, and integration: Union women’s separate organizing in
North America and Western Europe in the context of restructuring and globalization’, Women’s
Studies International Forum, 22:5, 545–554.
Colling, T. and Dickens, L. (1989), Equality Bargaining – Why Not?, Manchester: EOC.
Danieli, A. (2006) ‘Gender: The missing link in industrial relations research’ Industrial Relations
Journal, 37:4, 329–343.
Daniels, G. and McIlroy, J. (2009) Trade Unions in a Neoliberal World: British Trade Unions under New
Labour, Oxford: Routledge.
Healy, G., Bradley, H. and Mukherjee, N. (2004) ‘Individualism and collectivism revisited: a study of
black and minority ethnic women’, Industrial Relations Journal, 35:5, 451–466.
Healy, G. and Kirton, G. (2000) ‘Women, power and trade union government’. British Journal of
Industrial Relations, 35:3, 343–360.
Humphrey, J. (2000) ‘Self-organisation and trade union democracy’, Sociological Review, 48:2,
262–282.
Jewson, N. and Mason, D. (1986) ‘The theory and practice of equal opportunities policies: liberal
and radical approaches’, Sociological Review, 34:2, 307–334.
Kirton, G. and Greene, A.-M. (2002) ‘The dynamics of postive action in UK trade anions: The case
of women and black members’, Industrial Relations Journal, 33:2, 157–172.
Moore, S. (2009) ‘Integrating union learning and organising strategies: case studies of good practice’
Unionlearn Research Paper 8, London: TUC.
Parker, J. (2009) ‘Women’s collectivism in context: Women’s groups in UK trade unions’, Industrial
Relations Journal, 40:1, 78–97.
TUC (2009) Equality Reps Project Report, London: TUC.
TUC (2010) TUC Equality Reps Project Extension Report, London: TUC.
Virdee, S. and Grint, K. (1994) ‘Black self-organisation in trade unions’, Sociological Review, 42:2,
202–226.
Waddington, J. and Kerr, A. (2009) ‘Transforming a trade union? An assessment of the introduction
of an organizing initiative’, British Journal of Industrial Relations, 47:1, 27–54.
Women and Work Commission (2006) ‘Shaping a Fairer Future’, London: DTI.
20 Strategies for Equality:
chapter
The Norwegian
Experience of the
Use of Gender Quotas in the
Private Sector
CATHRINE SEIERsTAD
Introduction
Vertical sex segregation and the lack of women in senior positions, especially in the private
sector, politics and academia are global phenomena (Anker 1997; Singh and Vinnicombe
2003; Healy et al. 2005; Dahlerup 2006a, 2006b). This is an indication that gender is a
common barrier for women’s career advancement in large corporations worldwide (Acker
2006a, 2006b; Singh and Vinnicombe 2003). The absence of women in decision-making
processes in politics (Dahlerup 2006a, 2006b) and corporate boards has become a key
concern and important topic globally (Singh and Vinnicombe 2003: 49), both for states
and policymakers, as well as researchers. In addition, financial instability and crisis in
recent years have affected countries and companies globally, which Huse et al. (2009: 8)
argue has given renewed attention to corporate social responsibility (CSR), corporate
governance and the composition and roles of board of directors. Consequently, gender
representation and the inclusion of women and employee elected members on boards
are important in contemporary debates (Huse et al. 2009). Hence the pursuit of equality
and inclusion has become a central goal for many countries in recent decades, with a
variety of approaches aiming to challenge and potentially change the strong patterns of
occupational sex segregation that exist globally.
Norway is, together with the other Nordic countries, perceived amongst the most
equal countries in the world (World Economic Forum, 2008, Human Development
Report, 2007–2008). It has a variety of strategies for promoting equality, yet occupational
sex segregation remains resilient, with men controlling the majority of the most senior
and powerful positions, especially in the private sector. Singh and Vinnicombe (2004:
486) point out that in the UK context, despite several waves of feminism and 30 years of
equal opportunities and equal pay legislation, there is still a long way to go before women
make considerable inroads into top boardrooms. This was also the case in Norway, but the
Norwegian Government, instead of waiting for change, chose to challenge the pattern of
vertical sex segregation in the private sector in the corporate boardroom. Consequently,
in 2003, the Norwegian Government introduced a much-debated gender representation
law applicable to the boards of directors of public limited companies which came into
force in 2006. It had a two-year implementation period and required the boards to have
at least 40 per cent representation of each sex by January 2008. The law has led to a
number of changes within the composition of boards and this chapter seeks to explore
some of the early effects of the gender representation law, noting that the Norwegian
approach has received international attention both from scholars and policymakers.
This chapter starts by illustrating different equality strategies and international
trends before presenting data on global equality in order to put the case of Norway in
an international context. Following this analysis, Norway’s approach to equality and the
use of strategies will be illustrated. Finally, the early effects of the Norwegian gender
representation law will be explored. The chapter draws on primary and secondary data,
including data collected with Tore Opsahl (Seierstad and Opsahl 2011) looking at the
changes within Norwegian boards of directors from 2002–2009, as well as from my
doctoral research including 22 interviews with female directors in Norway in 2008.
This chapter illustrates that while the gender representation law has challenged and
changed gender representation within the boards, there have also been other important
effects and experiences.
Equality Strategies and Equality

Political leaders often frame the process of achieving gender equality as a kind of national
journey for tackling the persistent pattern of inequality between the sexes: Skjeie and
Teigen (2005: 187) illustrated how this path towards gender equality is often built on the
assumption of gradual equalisation between women and men with respect to power and
resources as well as participation and influence. The image of a gradual and harmonious
path towards gender equality in a country is represented as a series of steps where the final
destination is a gender equal democracy (ibid.). International and non-governmental
bodies such as the European Union (EU), International Labour Organisation (ILO) and
United Nations (UN), as well as states, all have directives and conventions for improving
equality and diversity (Skjeie and Teigen: 2003), but the principles of their equality
strategies vary widely. Consequently, even though equality is the political goal, there is
great disagreement over why and how to achieve this.
Global Trends of Equality Strategies
Although the purpose of all equality strategies is to increase equality among people
and between specific groups, various strategies exist (Jewson and Mason 1986; Miller
1996). The liberal perspective tends to focus on soft strategies and the principle of
positive action. These strategies have highlighted the need for equality of opportunities
(Miller 1996). In contrast the radical perspective has focused on equality of outcomes
and the principle of positive discrimination. From such a perspective, hard strategies
using quotas and earmarking has been argued for (ibid.). A mid-way approach can be
seen in the liberal progressive perspective with the principle of affirmative action (AA),
S t r a t e g i e s f o r E q u a l i t y 281
moving towards equality of outcome (ibid.). Although the use of radical strategies (AA and
positive discrimination) are fundamental approaches in certain countries (for example,
Norway), they are not considered appropriate or legal in others, such as the UK (where
the softer version, positive action, is favoured). In addition to these perspectives, a set of
new approaches has lately emerged. For example, diversity management has turned the
debate on equality around by focusing on the business outcomes of employing a diverse
workforce instead of justice, moral and ethical issues (Wrench 2005).
Strategies for promoting equality are often applied through affirmative action
policies. The understanding of affirmative action varies, but Bacchi (1996: x) argued
that it can be seen as ‘a generic term for programs which take some kind of initiatives,
either voluntary or under the compulsion of law, to increase, maintain, or rearrange the
number or status of certain group members usually defined by race or gender within a
larger group’. Consequently, it is an approach that has been used by governments or
organisations in tackling vertical sex segregation in addition to other forms of inequality
and discrimination. As affirmative action can be the preferential selection of a minority
group’s members with the aim of eradication preferential selection, it is controversial and
debated (Huse et al. 2009). Globally, the strategies in use vary, yet affirmative action has
been on the political agenda in many countries (Teigen 2000). Nonetheless, the attitudes
towards equality strategies and approaches in use differ. In Norway, affirmative action is
considered a key approach. Conversely, in the USA where affirmative action has had a long-
standing tradition, the political climate has turned against it and diversity management
has become an essential strategy. In fact, diversity management has received a great
amount of attention in recent years from academics and policymakers, and become an
imperative strategy for companies (Singh and Vinnicombe 2003). In particular, there has
been a trend in shifting from equality strategies towards diversity management.
The Norwegian Equality Strategies
The Scandinavian countries are known for their comprehensive efforts to reduce
occupational sex segregation. In fact, the family and equality policies in Scandinavian
countries, and especially Norway, are often used to exemplify successful policies in
promoting equality between the sexes, and gender quotas have played a prominent
role in Norwegian equality policies – probably even more so than in the other Nordic
countries (Skjeie and Teigen 2005: 188). In Norway, gender balance is a political goal
(Teigen 2003). An array of strategies for promoting gender equality are in place and a
range of initiatives and directives have over the past three decades been introduced with
the aim of eliminating discrimination and inequality between the sexes. The Norwegian
Gender Equality Act was introduced in 1978 with the aim of improving the position
of women (the Norwegian Government 1). An objective is that women and men shall
be given equal opportunities in education, employment and cultural and professional
advancement. It is stated that public authorities shall make active, targeted and systematic
efforts to promote gender equality in all sectors of society. In addition, employers shall
make active, targeted and systematic efforts to promote gender equality within their
enterprise. Employee and employer organisations shall have a corresponding duty to
make such efforts in their spheres of activity. The Equality Act states that direct or indirect
differential treatment of women and men is not permitted. However, the Equality Act is
open to affirmative action and states that:
Different treatment that promotes gender equality in conformity with the purpose of this Act is
not a contravention of section 3 (stating that direct or indirect differential treatment of women
and men is not permitted). The same applies to special rights and rules regarding measures that
are intended to protect women in connection with pregnancy, childbirth and breastfeeding.
(The Norwegian Government 1)
Legally regulated quota arrangement were first introduced on 1981 in section 21 in

the Gender Equality Act, which regulates the gender composition of publicly appointed
boards, councils and committees. The Act states that:
When a public board of directors appoints or elects committees, governing boards, councils,
boards, etc. each sex shall be represented as follows: If the committee has two or three members,
both sexes shall be represented. If the committee has four or five members, each sex shall be
represented by at least two members. If the committee has six to eight members, each sex shall
be represented by at least three members. If the committee has nine members, each sex shall be
represented by at least four members, and if the committee has a greater number of members,
each sex shall be represented by at least 40 per cent of the members. The provisions of nos. 1–4
shall apply correspondingly to the election of deputy members.
(The Norwegian Government 1)
For 25 years this was the only kind of quota procedure that was subject to legislation.
As will be explored further, the introduction of gender representation on boards of
directors in public limited companies is not stated in the Equality Act, it is in the Public
Limited Company Act (The Norwegian Government 5) even so, it does have regulations
in relation to gender representation on board of directors similar to section 21 in the
Equality Act.
There are three main areas where AA strategies are in place in Norway. This includes
areas of education, employment and politics, and boards. The strategies that are in use
include preferential treatment, promotion procedures and minimum representation
rules. Table 20.1 illustrates the types and procedures in place.
Table 20.1 Affirmative action strategies in place in Norway
Area of Society Form Method

Employment Preferential If candidates’ qualifications are of an equal nature the
(public sector) treatment applicant of the underrepresented sex is given preferential
treatment.
Education Preferential In cases of equal qualifications, candidates of the
treatment underrepresented sex are given priority.
Promoting There are two variations of promoting procedure for

procedures education; additional entry points are given to applicants
of the underrepresented sex, or earmarking of student
places for candidates of the underrepresented sex, with
strict restrictions to qualifications.
Politics Minimum Voluntary quotas (either of 40 or 50 per cent) on the party

representation election lists in five out of the seven major political parties
(includes Social Left Party, Labour Party, Centre Party,
Christian Party, Liberal Party, excludes the Conservative and
Progress Party).
Publicly Minimum A minimum of 40 per cent of each sex to be represented in
appointed boards representation publicly appointed boards, councils and committees.
and councils
Corporate boards Minimum A minimum of 40 per cent of each sex to be represented
representation on the boards. The law affects several types of companies
(implemented and the legislation applies to all publicly-owned enterprises
in 2006) (including: state-owned limited liability and public
limited companies, state-owned enterprises, companies
incorporated by special legislation and inter-municipal
companies) and all public limited companies in the private
sector. Employee representatives are not included in the
law.
Source: Teigen (2003: 17–20), Norwegian Government 3, (Freidenvall, Dahlerup and Skjeie, 2006)
Equality Rankings
As illustrated in the previous section, there is an international focus on equality and a

variety of strategies are in use. Nevertheless, global data on gender equality shows that
equality between the sexes is not achieved anywhere. The Human Development Report
(2007–2008) provides a global assessment of countries’ achievements in different areas
of human development. Important insights can be gained from the female economic
activity rate, gender-related development index (GDI) and gender empowerment measure
(GEM). The GDI is a composite index measuring average achievements in the three
basic dimensions captured in the human development index (longevity, knowledge,
and a decent standard of living) adjusted to account for inequalities between men and
women in each country. The GEM, on the other hand, measures gender inequality in
economic and political spheres of activity and is made up of two dimensions. First,
economic participation and decision-making are measured by the percentage of female
administrators and managers, and professional and technical workers; and second,
political participation and decision-making are measured by the percentage of seats in
parliament held by women (Human Development report, 2005: 270–271). The GEM
measure is therefore most relevant to vertical sex segregation.
Table 20.2 illustrates the 15 highest GEM ranked countries in the 2007–2008 ranking.
It shows large differences between countries and regions and suggests that Norway and
the Nordic countries are perceived as the most equal countries.
Table 20.2 Human development report, equality ranking
Female
GEM GDI HDI
Country Economic
Rank Rank Rank
Activity rate
Norway 87 1 3 2
Sweden 87 2 5 6
Finland 86 3 8 11
Denmark 84 4 11 14
Iceland 86 5 1 1
Netherlands 77 6 6 9
Belgium 73 7 14 17
Australia 80 8 2 3
Germany 77 9 20 22
Canada 84 10 4 4
New Zealand 82 11 18 19
Spain 66 12 12 13
Austria 76 13 19 15
United Kingdom 80 14 10 16
United States 82 15 16 12
Source: (Human Development Report, 2007–2008).
Norway, with its woman-friendly (Hernes 1987), social democratic (Esping-Andersen

1990) welfare approach and egalitarian society is considered amongst the most gender
equal countries in the world; with the female employment rate being almost that of
men; as well as being well-represented in politics; and in tertiary educational attainment
which is higher among women than men. Nonetheless, Norway has also a high level of
segregation in the labour market which is especially prevalent in the private sector where
women are underrepresented at higher levels and vertical sex segregation remains resilient
(Melkas and Anker 1997). It is seen as a paradox that one of the most equal countries has
a strong level of occupational sex segregation, both horizontal and vertical.
The Gender Representation Law on Company Boards of Directors
The lack of women in the decision-making processes occurring in the largest companies
poses a democratic problem as these companies encompass a large part of society (The
Norwegian Government 3). Consequently, the Norwegian gender representation law
aims to make the private sector and corporate boards more gender balanced. Norwegian
women have been highly underrepresented on boards of directors, the highest level of
the most influential firms (Grønmo and Løyning 2003). Randøy et al. (2006) found that
Scandinavian boards were surprisingly homogenous, and were highly male dominated.
They argued that the low levels of gender diversity seem puzzling given the participation
of women in the workforce. This finding was confirmed in a study of all the Norwegian
banks and the 200 largest companies by Grønmo and Løyning (2003). As a result,
gender representation regulation on boards of directors of public limited companies was
proposed and officially suggested in June 2003. The law affects several types of companies
and the legislation on gender representation on boards applies to all publicly-owned
enterprises (including: state-owned limited liability and public limited companies, state-
owned enterprises, companies incorporated by special legislation and inter-municipal
companies) and all public limited companies in the private sector. There are no rules
that have been proposed for privately-owned limited liability companies because most of
these companies in Norway are small family enterprises and the owners are themselves
members of the board. Public limited companies normally have a broader spread of shares
and less personal involvement in the management. Norway has approximately 205,000
limited liability companies (Norwegian Government 3).
For publicly-owned companies the law came into force on 1 January 2004, with a
two-year implementation period. In the case of the public limited companies, it was
a dialogue between the Norwegian Government and the private sector where it was
agreed that the amendment for a gender balance on public limited companies’ boards
of directors should be withdrawn if the companies voluntarily complied by July 2005.
However, this was not the case as the proportion of women was only 16 per cent in
2005 (The Norwegian Government 3). Therefore, the law was introduced in January 2006
with a two-year implementation period ending in January 2008. Table 20.3 shows the
minimum percentage of each sex that is required by the law to be represented on boards
of different sizes (employee representatives are not included in the law). This indicates
roughly a gender balance of 40 per cent overall.
Table 20.3 The requirement for representation of both sexes on public limited
companies boards of directors by the gender representation law in
Norway
Required representation
Size of board Effective minimum %
of each sex
2 1 50
3 1 33
4 2 50
5 2 40
6 3 50
7 3 43
8 3 37.5
9+ 40% 40
Source: (The Norwegian Government 3).
The use of gender quotas within the private sector has been controversial. In particular,
strong and conflicting opinions from the media, politics and the private sector have
challenged the image of Norway as an equal country. Although arguments were raised by
the opposition, both in politics and other areas of society, the Norwegian Government
argued for introducing gender representation rules based on arguments related to both
justice and utility. The Government argued from a justice point of view, pointing to the
importance of democracy as equality between the sexes, a fairer society, and a more even
distribution of power between the sexes were important factors in introducing the law.
Additionally, several arguments of utility and the business case were used. One argument
is that the legislation is important for the Norwegian economy. The demands for gender
balance on company boards ensure that Norway makes use of all the human resources
in the country, not just half. The Government also pointed to the fact that women take,
to a greater extent than men, higher education, so it is important to use the talent and
make use of their competence. In addition, business case arguments related to diversity
as having a positive impact on the companies’ bottom line were used. Hence, recruiting
more women to the boards will increase the diversity, and thereby influence the bottom
line (Norwegian Government 3).
The Effects and Changes Within the Boardroom

The end of the implementation period finished on the 1 January 2008, and consequently
there have over the last few years been significant changes within the Norwegian boards
of directors. This section will illustrate some of the early findings and effects of the law.
The areas that will be explored are the share of women on boards of director, as chairs, and
as prominent directors. In addition, this section will present some views and experiences
from women.
Norwegian Companies’ Compliance with the Law
When the legislation came into force and became applicable to all public limited
companies in January 2008, most of these companies in Norway had complied with
the law (The Norwegian Government 3). Seierstad and Opsahl (2011)1 aimed to explore
some of the early effects and the impact of the Norwegian gender representation law
on equality among directors. Although it is stated in the law that the share of women
must increase, we also examined whether companies have continued to increase the
proportion of female directors beyond the minimum requirement. Moreover, we assessed
the extent to which it has affected the most senior positions, such as the gender of the
chair as well as the directors’ prominence (that is, possession of multiple directorships).
We found that from 2002 to 2009 there was an increase in the number of directors.
The total number of directors on the boards included in this study rose from 1,009 to
1,650 and the number of women amongst the directors rose from 91 to 620. This means
that amongst the directors on these boards, 37.5 per cent are women.
Table 20.4 illustrates the percentage of female directors on boards, as well as the
percentage of female directors, excluding employee representatives, from 2002–2009
(employee representatives are not covered by the law and do not have the same gender
representation requirements).
1 To test our hypotheses, we collected a list of all the 384 public limited companies in Norway (Allmennaksjeselskap
or ASA) that were available online through the Norwegian Business Register on 5 August 2009. Based on the list of
companies, we collected all official announcements made to the register that were online. These announcements contain
changes to the composition of the boards of directors since 1 November 1999.
Table 20.4 Women’s representation on boards
Percentage of women
Percentage of women
Date on boards excluding
on board
employee representatives
January 2003 9 8.1
January 2004 9.7 9.1
January 2005 11.7 11.4
January 2006 16.9 17.1
January 2007 25.3 25.7
January 2008 36 36.8
January 2009 40.1 41.1
Source: Seierstad and Opsahl, 2011.
We found that a substantial increase in the proportion of female directors occurred

only during the implementation period, and especially towards the end of the period.
This suggests that the law has challenged the under-representation of women on public
limited companies’ boards of directors, and made the boards appear more democratic
and equal. This indicates that the hard strategy of legislation was a successful tool for
improving the gender balance, which could guide international policymakers. The
analysis also shows that even though companies have complied with the law, it is evident
that companies have reached their minimum target for gender representation, but the
female share is not higher than the minimum requirements. This again suggests that
companies are simply complying with the law, and not moving towards further equality
between the sexes. Turning to the most senior position within the board, the chair, it is
clear that these positions are still male dominated. Table 20.5 shows how the percentage
of women in these positions has changed from 2003–2009.
Table 20.5 Share of women as chairs on boards
Date Percentage of female chairs on boards

January 2003 2.7
January 2004 2.9
January 2005 3.1
January 2006 3.4
January 2007 3.5
January 2008 4.0
January 2009 4.0
July 2009 4.0
Source: Seierstad and Opsahl, 2011.

Table 20.5 shows that still few boards are chaired by a woman and that during the
observation period, the proportion of boards led by a woman only increased from two
percent to four percent. In addition, two thirds of this increase occurred before the
implementation period (January 2006). This suggests that the law has only had a marginal
effect on the gender of the chair and the boards appear internally segregated. As women
have not gained a substantial increase in access to the most influential position on the
corporate boards in the period of the law, this might indicate that there are still barriers
for women.
The gender representation law has received a lot of media attention, both nationally
and internationally. Particularly, the media has highlighted that certain female directors
have attained a large number of directorships. These directors have been named the
‘Golden Skirts’ by newspapers like the Financial Times (in Norway the gender neutral
term ‘styregrossist’ is used). Seierstad and Opsahl (2011) found that the number of
directors sitting on more than one board, referred to as ‘prominent directors’, increased
substantially during the observation period. More specifically, the number of prominent
directors rose from 91 to 224 between 2002 and 2009. Moreover, the maximum number
of directorships that a single director holds has doubled. Specifically, in May 2002, one
female and two males were the most prominent directors by being members of four
public limited company boards each, whereas in August 2009, one female director held
eight directorships. At the beginning of the observation period, only seven of the 91
prominent directors were women. The gender balance among prominent directors
changed considerably during the period, and by 2009, 107 women and 117 men were
prominent directors. Thus, the increase in prominent directors is mainly driven by an
increase in the number of female directors. More specifically, if only considering directors
with at least three directorships, 61.4 per cent of them are women. When considering
directors with seven or more directorships, all are women. Consequently, women have
not only entered the boardrooms, a select group have also become the most prominent
directors. Since this benefit is only enjoyed by a few directors and associated with a specific
gender, the intention of the Norwegian Government in creating a more equal setting can
be questioned as a group of ‘Golden Skirts’ has emerged. It can be seen that creating an
external shock through legislative mandate might create a temporary shortage of visible
qualified women available to take up such positions. The easy implementation for legal
compliance is therefore to select from among the visible available women directors with
governance experience. This repeated use of a select few available women creates the
‘Golden Skirts’ phenomenon. One could anticipate that supply of eligible women directors
would increase over time, and such prominence effects could decrease. However, at this
time, the prominence of few women members largely skews the equality debate.
Women’s Views of the Law and Experience in the Boardroom

As the previous sections illustrated, the new gender representation law has given a great
share of women access to the boardroom. Consequently, an interesting aspect is how
they experience these changes the law has enforced.
My doctoral research, including 22 semi-structured in-depth interviews with women
who are directors in Norway, found that they generally have a positive attitude to the
gender representation law, or at least see the need for the law. Even though quite a few of
the women admitted that they were initially sceptical of the gender representation law,
after experiencing and seeing many talented women getting opportunities and becoming
directors, they changed their attitudes and are now positive about the law. Nevertheless,
it was also emphasised how they, in principle, are sceptical about the use of quotas and
how their support is specific to this setting. In addition, the directors underline how they
hope that the law will be unnecessary in the future.
Has the Law Affected Women’s Opportunities?
As the law has lead to significant changes within the boards and, as illustrated, the share
of women has risen dramatically in recent years and women are relatively supportive
of the law, it is interesting to see whether female directors feel this has affected their
opportunities. It is apparent that the women are very aware that the new quota law gave
them opportunities which they did not have a few years ago, yet they viewed this as
unproblematic, as this prominent director describes:
I see it as an opportunity; I will still have to prove that I am good enough. I hope that other
women see it as an opportunity as well. I know women, experienced women, who say ‘I don’t
want to get a position because of quotas’. But even Gro Harlem Brundtland 2 says she would not
be where she is today if it wasn’t for quotas in politics when she was young. I don’t understand
why we (women) have to be so sensitive about it; you get an opportunity, if you don’t deliver
you are out! The only way to view quotas is as an opportunity.
This prominent director also illustrates how she feels about the issue:
I agree that it is not nice to think that you are only there because you are a woman and they
had to take you on. But on the other hand, I would never be a member of any boards if I didn’t
feel I was competent and qualified for it. I know that my background is very good and suitable
for the boards I sit on, better than most of the men’s. But I do think that if it wasn’t for the
law they wouldn’t have looked outside ‘their’ group. The way I see it; I have the background
and the qualifications, the law gives me an opportunity to demonstrate that I am more than
good enough. But I don’t believe that I would have been considered for these boards of directors
before the law. Nevertheless now, a nice thing for me is that I have been asked to be a director
on boards of companies not affected by the law. Consequently, they have noticed that I’m good;
they don’t need to have me, they would like to have me.
Several of the other directors also describe how after being director on one board they
have been asked to be a director for other companies, including those not affected by the
law, both nationally and internationally. This clearly indicates how important the gender
representation law has been for these women. By being made ‘visible’ they gained new
opportunities without a law ‘making’ companies choose them.
2 Gro Harlem Brundtland is the first female Norwegian Prime Minister. She was extremely popular both during her
time as Prime Minister and after.
In the Boardroom, are the Female Directors Treated with Respect?
Even though the vast majority of the women experienced being treated with respect in
the boardroom, a couple of women did tell stories of how they experienced gendered
practices in the boardroom. One participant gave insights into the gendered behaviour in
the boardroom setting and her role in this way:
We discuss financial problems and management strategies; men take up a lot of space; they
‘show’ their intelligence and competence. At the same time they hug me; they hug me when I
come and hug me when I leave. I’m not used to those mechanisms. I am used to deciding for
myself who I shall hug. The boards I have been on have been highly male dominated, only one
or two women. You are allowed to be there if you are their protégé, but you are not allowed to
be there if you have an opinion.
An interesting aspect illustrated by several of the directors is how they actually

experienced more scepticism outside of the boardroom, from society and the media who,
to a greater extent, questioned women’s competence. This indicates that even though
Norway is perceived amongst the most equal countries on international rankings, cultural
expectations and gender stereotypes are embedded in society and workplaces.
Conclusion
This chapter has illustrated that globally there exists a variety of strategies for promoting
equality between the sexes, and in Norway affirmative action and the use of quotas are
in place in several areas of the labour market. The focus in this chapter is the gender
representation law newly introduced for public limited companies and the early effects
and experiences of this law.
It is evident that the law has successfully challenged the under-representation of
women on public limited companies’ boards of directors, and made the boards appear more
democratic and equal. This indicates that the hard strategy of legislation was a successful
tool for improving the gender balance. However, while the minimum representation level
has been met, the share of women has not increased further. In addition, women are not
represented at the highest level within the boards, as the share of companies with a female
chair has been low and stable from 2002 to 2009. This might indicate that there are still
organisational barriers that women face but which men do not. In addition, the analysis
indicates possible counter-effects of the law. Although more women have entered the
boardrooms, differences among directors have arisen when looking at additional proxies
for influence on corporate boards. The maximum number of boards on which a single
director sits has increased considerably. This has led to the concentration of the benefits
associated with prominence to a select few. Moreover, women have not only entered
the boardrooms, a select group of them have also become the most prominent directors.
Since this benefit is only enjoyed by a few directors and associated with a particular
gender, the intention of the Norwegian Government in creating a more equal setting can
be questioned as a new elite of ‘golden skirts’ has emerged.
In addition, this chapter has illustrated views and experiences of women who have,
often due to the law, taken up positions as directors on boards. In general the women
now see the law as necessary since they found it problematic that women were an
‘untapped’ resource. As a result they see the law as beneficial, both for women getting
opportunities as well as for the boards and society, which take advantage of the resources
women possess. The women interviewed for my research are very aware of how the law
has given them opportunities, yet view this as unproblematic. They still feel the need to
prove that they are good enough as the law only helps women get access to the boards,
but does not guarantee that they will stay there. In addition, the majority of the women
describe how they are treated with respect in the board setting, but have experienced
being questioned by the wider society including the media. This indicates that Norway,
even though perceived as equal, has different cultural expectations for men and women
and that gender stereotypes are indeed also present in Norwegian society. As occupational
sex segregation and different labour market experiences for men and women exist, even
in one of the most equal countries, it is a clear indication that there remains a need for
new and additional strategies for promoting gender equality around 30 years after the
introduction of equality legislation aiming to challenge this. As a result, I argue for quotas
in some settings being useful tools for counteracting the conscious and unconscious
discrimination that exists in society and the labour market.
References
Acker, J. (2006a) Class Questions: Feminist Answers. Lanham, MD: Rowman & Littlefield Publishers
Inc.
—— (2006b) ‘Inequality regimes: Gender, class, and race in organizations’. Gender and Society, 20:
441–464.
Anker, R. (1997) ‘Theories of occupational segregation by sex: An overview’ International Labour
Review, 136: 315–339.
Bacchi, C.L. (1996) The Politics of Affirmative Action: ‘women’, Equality & Category Politics, London:
Sage Publications.
Dahlerup, D. (2006a) Women, Quotas and Politics, New York: Routledge
—— (2006b) Quota Project Global Database of Quotas for Women, http://www.quotaproject.org/
aboutQuotas.cfm.
Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism, London: Polity Press.
—— (2002) Why We Need a Welfare State, Oxford: Oxford University Press.
Grønmo, S. and Løyning, T. (2003) Sosiale nettverk og økonomisk makt [Social Networks and Economic
Power], Bergen: Fagbokforlaget.
Healy, G., Ozbilgin, M. and Aliefendioglu, H. (2005) ‘Academic employment and gender: A Turkish
challenge to vertical sex segregation.’ European Journal of Industrial Relations, 11(2): 247–264.
Hernes, H. (1987) Welfare State and Women Power – Essays in State Feminism, Oslo: Norwegian
University Press.
Human Development Report 2005, http://hdr.undp.org/statistics/data/indic/indic_246_1_1.html
Human Development Report 2007–2008, http://hdrstats.undp.org/en/indicators/#G
Huse, M., Nielsen, S.T. and Hagen, I.M. (2009) ‘Women and employee elected board members, and
their contributions to board control tasks’, Journal of Business Ethics, 89(4): 581–597.
Jewson, N. and Mason, D. (1986) ‘The theory and practice of equality policies; liberal and radical
approaches’, The Sociological Review, 34(2): 307–334.
Mandel, H. and Semyonov, M. (2005) ‘A welfare state paradox: State interventions and women’s
employment opportunities in 22 countries’, American Journal of Sociology, 111: 1910–1949.
Melkas, H. and Anker, R. (1997) ‘Occupational segregation by sex in Nordic countries: An empirical
investigation’, International Labour Review, 136: 341–363.
Miller, D. (1996) ‘Equality management: Towards a materialist approach’, Gender Work and
Organisation, 3(4): 202–214.
Norwegian Government 1: http://www.regjeringen.no/en/doc/Laws/Acts/The-Act-relating-to-Gender-
Equality-the-.html?id=454568ment.
Norwegian Government 2; http://www.regjeringen.no/nb/dep/bld/tema/likestillingsomradet/Hand-
out-Gender-on-Boards.html?id=416864
Norwegian Government 3: http://www.regjeringen.no/en/dep/bld/Topics/Equality/rules-on-gender-
representation-on-compan.html?id=416864
Norwegian Government 4: http://www.regjeringen.no/en/dep/bld/Topics/Equality/kjonn_og_makt/
kjonnsbalanse-i-styrer.html?id=439465=
Norwegian Government 5: http://www.stortinget.no/no/Saker-og-publikasjoner/Vedtak/Beslutninger/
Odelstinget/2006–2007/beso-200607-010
Norwegian Government 6: http://www.regjeringen.no/Rpub/OTP/20022003/097/PDFS/OTP20022003
0097000DDDPDFS.pdf
Randøy, T., Thomsen, S. and Oxelheim, L. (2006) ‘A Nordic perspective on corporate board diversity’.
Oslo: Working Paper Nordic Innovation Centre
Seierstad, C. (2009) ‘A change in representation on Norwegian boards of directors: Compliance,
prominence, and women’s experience’. Conference paper presented at Equal Opportunities
International 2009, Istanbul.
Seierstad, C. and Opsahl, T. (2011) ‘For the few, not the many: The effects of affirmative action on
presence, prominence, and social capital of female directors in Norway’. Scandinavian Journal of
Management, 27(1).
Singh, V. and Vinnicombe, S. (2003) ‘The 2002 female FTSE index and women directors’, Women in
Management Review, 18(17): 349–358.
—— (2004) ‘Why so few women directors in top UK boardrooms? Evidence and theoretical
explanations.’ Corporate Governance: An International Review, 12(4): 479–488.
Skjeie, H. and Teigen, M. (2003) Menn imellom (Among Men), Oslo: Gyldendal.
—— (2005) ‘Political constructions of gender equality: Travelling towards a gender balanced society?’
Nordic Journal of Feminist and Gender Research, (NORA), 13(3): 187–197.
Taylor-Carter, M., Doverspike, D. and Cook, C. (1995) ‘Understanding resistance to sex and race-based
affirmative action: a review of research findings’, Human Resource Management Review, 5(2): 129–157.
Teigen M. (2000) ‘The affirmative action controversy’, Nordic Journal of Feminist and Gender Research
(NORA), 8(2): 63–77.
—— (2003) Kvotering og kontrovers –om likestilling og politikk [Quotas and Controversies – Equality and
Politics], Norway:Unipax.
—— (2006) Det kjønnssegregerte arbeidslivet –En kunnskapsoversikt [The Sex Segregated Labour Market –
An Overview], Institutt for Samfunnsforskning.
World Economic Forum (2005) ‘Women’s empowerment: measuring the Global Gender Gap’: http://
www.weforum.org/pdf/Global_Competitiveness_Reports/Reports/gender_gap.pdf
—— (2008) The Global Gender Gap Report 2008: http://www.weforum.org/en/Communities/Wom
en%20Leaders%20and%20Gender%20Parity/GenderGapNetwork/index.htm
Wrench, J. (2005) ‘Diversity management can be bad for you’, Race and Class, 46(3): 73–84.
21 Tackling Gender
chapter
Segregation in the
UK Transport and
Construction Sectors:
Recent Initiatives and
Procurement Strategies
TESSA WRIGHt
Introduction
Occupational gender segregation has long been recognised as one of the three main causes
of the persistent gender pay gap, as demonstrated by several reviews of women’s pay.
Lately both national and regional funding has been made available to address this, with a
focus on supporting women to enter male-dominated occupations. This chapter examines
some recent initiatives, based on research in the transport and construction sectors. After
examining the link between women’s unequal pay and occupational segregation and
presenting evidence of the persistence of gender segregation in the two highlighted
sectors, the chapter discusses several recent initiatives in London that address the barriers
to women in entering male-dominated work. In doing so, it draws on interviews with
experts involved in initiatives designed to improve women’s participation in male-
dominated occupations, as well as interviews with women working in these sectors.
Experts interviewed propose a range of strategies to increase the participation of
women in male-dominated work, with some focusing on the labour supply side, for
example, by pressing for greater awareness-raising among girls and women of non-
traditional career opportunities. However this is only part of the solution, and many
experts agree that attention to the labour demand side is also needed, for example, through
interventions to urge employers to pay serious attention to the recruitment and retention
of women in traditionally male work. This chapter highlights one strategy that some
public sector organisations are beginning to use to address inequality – linking equality to
the procurement process. It shows how equality requirements can be built into contracts
issued to private sector firms by public organisations, and how these may be used to
promote opportunities for women in male-dominated sectors, and gives examples from
my research of how this is being used in transport and construction projects in London.
It also considers whether provisions in the Equality Act 2010 may provide further support
to those trying to ensure procurement processes achieve equality objectives, and argues
that procurement may become an area of increasing focus for equality activity. So far
little has been written on the results of using procurement to address equality objectives,
but evidence from existing research will be discussed in this chapter.
Why Tackling Occupational Gender Segregation Matters

Occupational gender segregation has been identified as one of the three principal causes of
the persistent pay gap in the UK between men and women, alongside the unequal impact
of women’s family responsibilities and pay discrimination (EOC 2001). Occupational
segregation includes both ‘horizontal’ segregation, in which women are concentrated into
just ten occupations – predominantly low-paying ones – and ‘vertical’ segregation which
limits women’s progress into higher-paid positions. Under recent Labour governments
there has been considerable concern about the gender pay gap – women’s average hourly
pay (excluding overtime) is still 16.4 per cent less than men’s pay (National Statistics
2009). Several high-profile reports and enquiries have recently examined the issue of
women’s pay (EOC 2001; Kingsmill 2001; Women and Work Commission 2006) and the
former Equal Opportunities Commission (EOC) (now part of the Equality and Human
Rights Commission (EHRC)) undertook a formal investigation into gender segregation in
work and training, focusing on the Modern Apprenticeship system (EOC 2004). Further
measures to make pay inequality more visible are also included in the Equality Act 2010
but rely on secondary legislation and therefore require continued support from the
current government (See Dawson, Chapter 6).
In addition to the emphasis on equality and fairness in relation to women’s pay and
participation in the labour market, ‘business case’ arguments have been put forward for
tackling occupational gender segregation, highlighting the skills shortages identified in
many male-dominated occupations and arguing that these can be addressed by training
more women to enter such occupations (EOC 2004). The Women and Work Commission
estimated that the productive potential of the economy could be increased by between
£2 billion and £9 billion if women were to move into higher-paid occupations or higher-
grade roles in their current occupations (Women and Work Commission 2006: 6).
This concern about the effects of occupational segregation on women’s pay, on skills
shortages and on the economy more widely has been translated into money for policy
initiatives to address training and skills, with £40 million of government funding initially
made available for improving women’s skill levels, with a focus on male-dominated
occupations. This included £10 million through the Women and Work Sector Pathways
initiative to develop projects providing women with skills, confidence and mentoring
to move into or progress within male-dominated occupations (DCLG 2007). In March
2008, a further £5 million a year for three years was awarded to this initiative, with the
construction industry chosen as one of the sectors to receive continued funding and
passenger transport introduced in phase two.
In addition to government resources, funding has been provided regionally through
the London Development Agency (LDA) to projects aimed at supporting women into
Ta c k l i n g G e n d e r S e g r e g a t i o n i n t h e U K Tr a n s p o r t a n d C o n s t r u c t i o n S e c t o r s 295
traditionally male work, supporting its key strategic gender priorities of reducing the
gender pay gap and occupational segregation in London (LDA 2007).
Barriers to Non-Traditional Work

The construction and transport sectors remain the two most heavily male-dominated
industrial sectors in the UK – 90 per cent of construction workers are male and 76 per cent
of those in transport, storage and communication are men (EOC 2006: 21). Furthermore,
construction has seen no improvement in the proportions of women in employment
since 1972 (EOC 2006), despite efforts by the industry to train and recruit more women
(Gurjao 2006). Women account for less than one per cent of craft and trades occupations
and eleven per cent of construction design and management occupations in the UK
(LFS Spring 2004). Data on women working in transport occupations from the Labour
Force Survey (LFS) 2003 (Hamilton et al. 2005), shows a similar pattern, with women
representing only 9 per cent of all transport occupations, but most likely to be found in
leisure and travel service occupations (56 per cent of those employed) or in administrative
roles as transport and distribution clerks (30 per cent of employees). Only 11 per cent of
managers in transport are women and they account for only 4 per cent of transport
drivers and operatives.
There are a number of explanations for occupational gender segregation, which
broadly divide into those that emphasise labour supply and labour demand factors.
Labour supply theories tend to emphasise the factors that lead women to ‘prefer’ certain
female-dominated occupations, whereas labour demand theories focus on why employers
tend to select women and men for different jobs and the barriers to progression within
firms (Anker 1997). However women’s ‘preferences’ may be constrained by a number
of factors including the availability of flexible working hours, as well as gendered
assumptions about who is suitable for certain occupations, affecting both employee
and employer perceptions. Male workplace cultures may also deter women from apply
to, or remaining in, male-dominated work, and physical obstacles such as lack of toilet
facilities or suitable protective clothing may also make women feel unwelcome in
certain occupations. Furthermore, such male cultures may be deliberately maintained
by exclusionary or controlling behaviours, for example sexual harassment of women
workers (Cockburn 1991). (For further discussion of how gender and sexuality intersect
in women’s choices relating to, and experience of, male-dominated workplaces, see
Wright (2011).
Thus a range of strategies targeted at both individual women and organisational
practices are required in order to tackle occupational gender segregation. Evidence from
experts on recent projects employing some of these strategies is discussed below.
Methodology
The chapter presents some findings from qualitative research conducted in the UK transport
and construction sectors which collected data primarily by means of semi-structured
interviews and focus groups. The research explores the intersections of gender, sexuality
and class in non-traditionally female work using qualitative methods: 38 interviews
were conducted with heterosexual women and lesbians working in the construction
and transport sectors. The sample contains a balance of women working in professional
and in manual occupations within the two sectors. In addition, information about the
contemporary context of measures to address ongoing gender segregation in these sectors
was gathered through interviews with 15 selected experts on the employment of women
in non-traditionally female work, representing industry and training bodies, employers,
trade unions, women’s networks and voluntary organisations. The experts were selected
on the basis of their organisation’s role in the two sectors under consideration and because
they were known to be involved in actions to address women’s under-representation
in non-traditionally female work. This chapter primarily discusses evidence from the
interviews with key experts, but also presents views of women interviewees working in
transport and construction. Although some experts represented national organisations,
the examples of specific initiatives discussed here are based in London, where most of the
research was carried out.
Awareness of Non-Traditional Occupations

Some of the experts interviewed for this research emphasised the need to address the
‘supply’ side through activities to promote non-traditional work to women and girls. The
Women into Non-Traditional Occupations project was funded by the London Development
Agency (LDA) between 2006 and 2009 as part of the LDA’s commitment to addressing
women’s low pay and occupational segregation (LDA 2007). The project was established
to raise awareness among women in London about jobs in non-traditional areas (focusing
on a small number of sectors, including construction and transport) by putting on events
with inspirational women speakers already working in such jobs, offering ‘taster days’ for
women to see what the work involves, and practical job-search preparation and support.
The project had no difficulty in attracting women to their events, and, according to the
project coordinator, demonstrated that many women are interested in this type of work.
During the project around 400 women attended non-traditional occupation open days
and over 1,000 women received employment support.
Several interviewees felt that more should be done to educate girls about the
opportunities to work in non-traditional areas. Girls often lack information about training
and career options in non-traditional work, however a survey of school pupils by the
former Equal Opportunities Commission (EOC) found a much higher level of interest in
non-traditional work choices than generally thought: more than a third of girls said they
definitely would consider a non-traditional job, 44 per cent said they might, and 12 per
cent in England and 11 per cent in Wales expressed a specific interest in construction
work (EOC 2005: 10). Some interviewees were also ‘Construction Ambassadors’, a scheme
run by the sector skills council ConstructionSkills to promote the industry to school
students as a potential career. Although not solely aimed at girls, a high proportion of
Ambassadors are women, some of whom are motivated by a desire to encourage girls to
consider the industry, as expressed by Tanya, a senior surveyor:
I became a construction ambassador a few years ago because I’m quite into just telling
kids about careers within the industry, especially girls, because a lot of them just think it’s
hairy-arsed builders and no women would want to do it, and it’s nice to get them to realise it’s
a good role and it’s a lot more professional than it used to be.
Tanya firmly believed that construction firms offered a more professional and
comfortable working environment for women than when she first started 14 years ago,
at least for those in professions such as surveying. It was also thought that the manual
trades were attracting more women: an interviewee from Women and Manual Trades
(WAMT), the national organisation for tradeswomen and those training in the trades, had
observed a change in attitudes among young women:
I think what’s changing is women going in from school and from a young age … I went in when
I was 30 and a lot of women of my generation went into it when they were more mature. …
Young women, I think, are starting to choose it, and being more confident.
Employer Resistance
Evidence bears out this perception of an increase in women entering the trades, with
women accounting for nearly nine per cent of first year trainees on construction courses in
Further Education colleges in London, higher than in other parts of the UK (Construction
Industry Training Board (CITB) 2005 cited in GLA 2007). Yet just 1.3 per cent of manual
construction workers in London are women (GLA 2007). This suggests that even when
women or girls do choose non-traditional careers, they then face barriers in gaining
employment, lending support to labour demand explanations for occupational gender
segregation. Research shows that while women often have higher formal qualifications
than men, they do not succeed in getting work: in construction, work experience is
crucial for getting employment and this may be harder for women to acquire due to
informal and discriminatory recruitment practices (GLA 2007). Research on the building
of Heathrow Terminal 5 found that despite commitments by the client British Airports
Authority (BAA) to encourage a diverse workforce and recruit local labour, in reality
few women and local people gained work on the project, with one of the main reasons
being the lack of work experience placements available to those studying in local colleges
(Clarke and Gribling 2008). The authors concluded that there was no shortage of those
in the target groups for recruitment (including women and ethnic minorities) looking to
train and work in the industry.
For tradeswomen the gap between formal training and gaining work experience and
employment is also well known to WAMT. Formal qualifications achieved in college need
to be complemented by practical work placements in order to gain a National Vocational
Qualification (NVQ) level 2 and therefore get work. Colleges do not provide placements
for students, who must find their own, but these are particularly hard for women to find,
with employers reluctant to ‘take a chance’ on a woman, as an interviewee from WAMT
explained:
They’re writing to employers, who, as soon as they see a woman’s name on it, especially with
electricians and plumbers ... What happened is, plumbing got a huge amount of publicity
in the last couple of years about what you can earn and that brought a lot of people in [...]
But basically we’ve got too many people who are trained as plumbers and not enough plumbing
placements. That’s the crux of it and to get a plumbing placement is like gold dust, so is a firm
that mainly employs fellas going to take a chance on a woman?
To address this and provide opportunities for women to get practical experience on
construction sites, WAMT established the Building Work for Women project (also funded
by the London Development Agency). Like the WINTO project discussed above, Building
Work for Women found no shortage of women interested in taking part: they approached
some colleges where women were doing training in the trades and found it snowballed
from there. The project provided support for 153 women, including work placements,
help with gaining the card and first aid certificates needed to work on construction sites,
and financial support for tools, protective clothing, driving lessons and childcare. It also
assisted more than 30 women to gain employment. In addition to preparing the women
for work by helping them acquire the necessary certification and practical tools, WAMT’s
key role was in persuading employers to take on women on work placements: the project
manager believed that the project was very valuable in;
Helping women to enter the industry, breaking down the barriers of employer prejudice. You
have to be very determined to do this as an individual, but we can help in selling the benefits
of a diverse workforce to employers.
The London Olympics, to be held in 2012, is also being seen as an opportunity to

address the under-representation of women and other groups in construction. Specific
measures have been established by the Olympic Delivery Authority (ODA), such as the
Women’s Project, aiming to provide work experience for 65 women on the Olympic
construction site, and jobs for 15 women in manual trades. However the project manager
interviewed for this research was confident that this target would be exceeded. The
project has also found no difficulty in recruiting women, who were driving diggers and
dumpers as part of the early stages of the construction of the Olympic site. They received
training at the site’s plant training centre and, according to the project manager, ‘they
absolutely love it’. Additionally, the Women’s Project has a formal role in monitoring
applications for jobs on site, and is able to ask questions of contractors who constantly
fail to appoint women: ‘if they consistently choose men then we make a fuss about it and
we want to know why’. The project has also been involved in urging companies to take on
apprentices and was aiming for 50 per cent of these to be women, and had received many
applications from women wanting these opportunities. The project manager believes the
project has the potential to set an example to the construction industry of how they can
increase the numbers of women:
The Olympics is a high-profile site, and if we raise the profile of women on the Olympics
we are raising the profile of women in construction generally, that’s the idea. And also that
other publicly-funded builds may follow our example of facilitating women onto site. So this
Women’s Project, they are hoping to extend it, we are just for the Olympic stadium and the
Olympic buildings. They are hoping to extend it to the Village, which is a separate build, they
are hoping to extend the same principle of employing local people and giving jobs to women.
This project then is addressing the issue of women’s low participation in construction
work in a number of ways. The high public profile of the Olympics offers a chance to raise
awareness of women working in construction. Indeed on a visit to the Women’s Project

in 2008, the then Olympic Minister Tessa Jowell said:
Not only will this programme help more women get construction jobs working on the Games,
but also make a significant contribution to breaking down gender barriers within the industry
as a whole.
(ODA 2 December 2008)
Additionally, through its role in monitoring job applications for work at the site, the
project can also identify employers who seem resistant to employing women and is in a
position to challenge their recruitment practices. In this way a publicly-funded project
is able to monitor and influence the actions of its contractors in terms of employment,
which will be discussed further below.
Political Will
The initiatives discussed above highlight that targeted measures are necessary in order
to produce change in sectors that have proved highly resistant to any alteration in their
gender balance. A historical perspective on the construction industry in Britain (Clarke
and Wall 2004) illustrates moments when women increased their numbers in the industry,
for example during the two World Wars of the twentieth century and in the 1970s and
1980s when local authority building departments took measures to recruit women. Indeed
Clarke and Wall (2004) argue that the key factor that explains the inclusion of women at
certain stages is ‘political will’. They add:
The gender division of labour does not change by itself but requires effective regulation and
training and this is only founded on concerted political effort.
(Ibid.: 25)
The political efforts of the 1970s and 1980s to get women into the manual trades
in London combined feminist campaigning (in particular through Women and Manual
Trades), commitment from the then Labour-led Greater London Council (GLC),
women’s training workshops (supported by local authorities and the European Social
Fund), the equal opportunities policies of Labour-run local authorities and the support
of construction union Union of Construction, Allied Trades and Technicians (UCATT)
(Wall 2004). Close links between the women’s training workshops and the Direct Labour
Organisations (DLOs) of certain Inner London boroughs meant that many tradeswomen
gained work, with 266 women working in just 7 Inner London DLOs in 1989 (Pyke 1989,
cited in Clarke and Wall 2004). These were exciting times, recalls Wall (2004: 167), who
herself trained and worked as a carpenter during the 1970s and 1980s:
For a few exciting years in Inner London it seemed as though women were at last gaining some
foothold in the most gender-segregated industry of all time.
While the political and economic context of the first decade of the twenty-first century
differs from the 1970s and 80s, it is worth noting the role of London-wide government in
both the progress reported by Wall in the 1970s to 1980s and in recent years. The Greater
London Council of the time, headed by Ken Livingstone, was known for its commitment to
equal opportunities, until its abolition by Conservative Prime Minister Margaret Thatcher
in 1986. When a city-wide level of government was restored to London in 2000 with the
Greater London Authority (GLA), made up of the Mayor of London and the 25-member
London Assembly, Ken Livingstone became the first elected Mayor of London. From its
formation, the GLA has actively pursued equality and diversity strategies covering all the
equality strands, also reflected in the policies of the London Development Agency, part of
the ‘GLA family’, which is responsible to the Mayor. However since Ken Livingstone lost
the Mayoral election to the Conservative Boris Johnson in 2008, some have expressed
fears that the proactive policies of the GLA on reducing occupational gender segregation
will not be sustained (Wright 2009).
The national political context differed however from the period of Conservative
government from 1979 discussed by Wall, and we have already seen that the Labour
governments from 1997 to 2010 put the issue of women’s unequal pay on the agenda,
although did not go as far as many would like, and the Equality Act 2010 has been seen
as a ‘missed opportunity’ to further reform equal pay law (EOR 2010). Nevertheless, a
range of equality legislation was passed (Dickens 2007), including the Equality Act 2006
which introduced a Gender Equality Duty requiring public bodies to have ‘due regard’ to
promoting equality of opportunity when exercising public functions (see Conley, Chapter
2). As part of the Gender Duty, public bodies had to produce a gender equality scheme
which, where the political will existed, could be ambitious documents, for example, the
gender equality schemes of the GLA, the ODA, the LDA and Transport for London (TfL)
all pledged action to improve women’s employment in under-represented areas. But as
Conley (Chapter 2) points out, this requirement was weakened during the consultation
on the Equality Bill, meaning that public authorities without sufficient commitment to
tackling inequality may face fewer requirements to do so.
The public sector equality duties have, nevertheless, been a driver for some public
bodies to argue that private sector contractors that deliver services should also be
required to show that they are taking steps to promote equality and diversity among
their workforces, thus linking public procurement and equality, which is discussed in the
following section.
Procurement
During the 1980s some local authorities attempted to use public sector contracts to require
contractors to undertake equality measures, but these were stopped by legal changes in
1988 by the Conservative government that prevented local authorities from taking into
account ‘non-commercial’ factors in the awarding of contracts (Dickens 2007: 485).
Following the election of a Labour government in 1997 there was a move away from
the Thatcherite Conservative approach to procurement and a renewed interest in using
procurement to achieve equality outcomes (McCrudden 2009). Questions concerning
the legality within European law of using procurement as part of the equality agenda
have largely been resolved, according to McCrudden (2009). The Women and Work
Commission’s (2006) report on the gender pay gap noted the role procurement policy
could play in addressing gender pay inequality and recommended that the government
take a lead in providing guidance and promoting good practice in procurement by public
authorities. Some government documents began to signal an encouragement to consider
equality in procurement processes (OGC 2008) and some departments took steps to link
race equality to procurement. Three government departments – the Department for Work
and Pensions, the Department for Children, Schools and Families and the Identity and
Passport Service – were involved in procurement pilots to achieve better race equality
outcomes in the procurement of services through introducing equality requirements
into contracts with suppliers (Djan Tackey et al. 2009). The use of procurement was
also promoted by the Government Equalities Office as part of its package of measures to
narrow the gender pay gap, with the possibility of a Kitemark scheme being introduced
(Government Equalities Office 2009a). The public sector equality duties have provided
a further incentive to link procurement and equality. While some debate took place
over whether procurement was a public function, the consensus now seems to be that
it is included (McCrudden 2009). The consultation on the Equality Bill made it clear
that procurement can be used to drive equality, as part of the extended equality duty
(Government Equalities Office 2009b), which will be discussed further below. Research
by the Equality and Human Rights Commission, together with other bodies (EHRC
2009), found that the equality duties had been instrumental in incorporating equality
considerations into procurement in local authorities over the previous three years,
according to 87 per cent of equality and procurement officers surveyed and almost all
(98 per cent) thought that progress had been made in this area in the last three years.
However, lack of understanding and joint working between equalities and procurement
staff was felt to be a frequent difficulty.
The GLA has been actively using procurement to achieve its equality aims through its
sustainable procurement policy produced in 2006 that seeks to ensure that procurement
supports social, economic and environmental objectives that benefit London. A large-
scale project that has applied such provisions is Transport for London’s (part of the GLA
group) contracting for the £1 billion East London Line. Equality requirements were
included as part of the invitation to tender and contractors had to demonstrate that they
could deliver equality and supply-chain diversity effectively before getting through to
the final bidding stage (Godwin 2009). Contractors were expected to look at the diversity
and gender balance of the workforce with the intention that it should be representative
of the local communities in East London. The winning contractor for the main works,
Balfour Beatty Carillion JV, held regular workshops to try and get more women involved.
Although the number of women employed on the East London Line has increased, the
equality and inclusion manager reported that it would be some time before there was a
marked increase as the women do not yet have the industry qualifications; only two per
cent of those working on site at the end of 2007 were female (Godwin 2009).
Also in East London, the 2012 Olympics are providing a further opportunity to link
procurement to equality outcomes. The Olympic Delivery Authority (ODA) has made
promoting equality and diversity a requirement on all contractors within its procurement
policy (ODA 2007). During the tendering process, contractors are expected to indicate
their approach to equality and diversity, and that they have understood the ODA’s policies.
The successful tier one contractors – that is those with a direct contract with the ODA,
rather than subcontractors – must demonstrate a commitment to equality and inclusion,
by developing an equality action plan that is regularly monitored by the ODA, including
monitoring their workforce, diversifying the supply chain and looking at opportunities
for where they can increase the numbers of women, Black, Asian and Minority Ethnic
(BAME) and disabled people in their employment. According to the ODA’s head of
equality and inclusion, interviewed as part of my research, the introduction of contractual
requirements concerning equality was new to the construction industry; in the past there
were requirements linked to planning concerning the recruitment of local people, but
having strategic aims about recruiting women or BAME staff was a new situation for
them. However she believed that the pragmatism found in the industry is helpful: ‘They
are used to trying to fix things, and it is in their contracts, so they want help to do it.’
Help is offered through a ‘collaborative’ rather than a ‘big stick’ approach, and the ODA
hopes that the equality monitoring processes introduced into the construction industry
will be part of the legacy of the 2012 Olympics. The head of equality and inclusion
was happy with progress so far, but recognised its limitations in that they had no direct
influence over tier two and three contractors who employ a large part of the workforce,
and with whom the ODA does not have a direct contractual relationship:
We encourage, coax and cajole, but there is no stick that we can use, as we could with tier one
contractors, although we have never had to.
The TfL East London Line contracts included an infraction clause whereby the
contract could be terminated if the contractor failed to deliver on equality commitments,
which TfL’s equalities and inclusion manager felt was important to show that TfL took it
seriously. Despite ‘initial resistance’ he felt that the contractors ‘took it in the right spirit’
and recognised they should deliver what they promised (Godwin 2009).
There were also suggestions from other interviewees in my research that TfL’s
procurement policies were providing a spur to companies to take an interest in equality.
The interviewee from the Women into Non-Traditional Occupations project felt that
the motivation for some employers to get involved in the project was because their
contracts with TfL required them to monitor and improve their proportions of women
in employment. Companies were therefore willing to offer ‘taster days’ to allow women
to try out non-traditionally female roles and would attend events to encourage job
applications from women. Thus procurement policies containing equality requirements
may support wider efforts to raise awareness of non-traditional work among women, as
well as more directly contributing to employment opportunities for women.
Another interviewee, Cheryl, an electrician, had gained a placement on the East
London Line project. She welcomed the experience of working on a large construction
site, even though she found the placement too generic and in the end felt that she was
not gaining the necessary experience as an electrician needed to complete her NVQ
level 3 qualification. She commented that the company who offered her the placement
had been keen to hire women, and it may have been the case here that the equality
requirements introduced into the procurement process were an impetus in providing the
work experience that women often find so difficult to get, as we have seen above.
Now fully qualified and looking for work, Cheryl was hoping to benefit from the
requirement for the London Olympics to employ local people, but had some concerns:
And basically they’re just taking down people’s details that are in the area because work is
supposed to go to people in the surrounding boroughs. Whether that happens or not, because
I saw something on the news that not a lot of people in the boroughs are actually getting the
work and say a percentage are coming from abroad, are Polish, so I don’t know how realistic
that’s going to be. So hopefully being in the actual area will give us a better chance of getting
something.
She believed, though, that being a woman might work in her favour with the larger
companies who were concerned to implement their equality commitments.
Another interviewee, an engineer working on a station improvement project contracted
by TfL, said that her employer, a large construction company, had been required in the
tendering process to produce statistics on employee diversity, noting that her firm had
better figures than average for the industry. However she commented wryly on the jokes
circulating within the organisation:
If you’re a girl in [employer] you are going to end up on the front cover of some publication at
some point or other, and we all have been, every single woman that I know has been in the
video or on the front of the annual report or in the calendar or something. They go ‘Excellent,
more girls, let’s photograph you and make it look like we’re diverse’, so it looks as though there’s
a ridiculous proportion of ethnic minorities and women who work for us and no white men at
all!
Such comments reflect a view that contractual requirements relating to equality may
mean that companies simply get better at trying to ‘look diverse’, when the reality is
very different, a concern that is addressed in the LDA’s monitoring processes, as seen
below. Nevertheless, although it is too early to know how successful the 2012 Olympic
construction projects will be in providing non-traditional work opportunities for women,
the interviewees here are optimistic that the inclusion of equality requirements in the
procurement process, together with the provision of training and work opportunities
through the Women’s Project discussed above, will offer a good model for the construction
industry to follow in other large builds. Furthermore, they are hopeful that having women
on site and more visible may gradually contribute to the culture change needed in the
industry.
The Equality Act
The government’s guidelines on equality and procurement (OGC 2008: 5) state that
‘public authorities must consider how they can use their procurement functions to
further equality objectives’. Specifically, the public sector equality duties require a public
body to consider whether any relevant obligations under the duty should be passed onto
the contractor. Where it is deemed that they should:
This should be included in the contract conditions which relate to the performance of the
contract. Public authorities should monitor the performance of the contract to ensure that the
obligations are being met. The public body would remain liable for any non-compliance.
(OGC 2008: 6)
The policy statement issued in response to consultations on the Equality Bill (GEO
2010) notes that while equality should already be considered as part of public bodies’
procurement processes, further specific duties were needed to ensure greater and
more consistent use. This would require public bodies to set out how they plan to use
procurement to further equality objectives and to consider using equality-related award
criteria, where relevant and proportionate and consider incorporating equality-related
contract conditions. Some commentators said that the extent to which the expanded
equality duty required public authorities to build equality into public procurement was
‘a key litmus test of how serious the Government is in achieving its equalities agenda’
(Rubenstein 2009). One proposal that was rejected, however, was an explicit requirement
for public bodies to deal with suppliers’ breaches of discrimination law (Rubenstein 2010).
Since the change of government in May 2010, the future of the specific duties affecting
procurement is uncertain, as secondary legislation is required to implement this part of
the Equality Act 2010.
One interviewee who had already been using procurement to promote equality, the
then Head of Equalities at the LDA, was hopeful that the proposals for the Equality Act
would strengthen their ability to require equality measures:
Hopefully the new Bill will get even better and we’ll have even more powers to use this. It works,
it really does work. It makes a difference. When people want your money, they get interested
in equality.
Commercial imperatives, in her view, were a powerful tool. But monitoring by the
body awarding the contracts was also key to successful outcomes, so that it was not
simply ‘ticking boxes’:
So even if they do just tick the right box to get the money, if we’ve got the right people in our
delivery and contract management teams and we’re training them, and they have equality
targets. So if they do have to have 30 per cent of their clients to be BAME or 10 per cent women,
then when we’re there having monitoring meetings and asking them what they are doing, that’s
where the quality comes in [...] But good project managers are saying, how are you doing it?
What are you doing? Here’s a toolkit.
In introducing the Equality Act the Labour government acknowledged that guidance
would be crucial in how effectively the requirements are implemented, with a stated
commitment to work with the Office of Government Commerce and the Equality
and Human Rights Commission (EHRC) on practical guidance (Rubenstein 2009). The
interviewee from the LDA also pinpointed the role of the EHRC and hoped that the
guidance would provide some strong examples of how improved equality outcomes
could be achieved through procurement. She added:
It’s in their hands now whether it starts to become enforced. There must be local authorities
that don’t do it, and it’s about how much their lives are made difficult because of that and we
look to the Commission now.
Conclusion
This chapter has presented evidence of a certain momentum that had been created to
try to reduce the gender pay gap and occupational segregation as a major contributor
to this, which resulted in funding for targeted initiatives that are seeing some results for
women wishing to enter male-dominated work, albeit on a small scale. Those involved
in running such projects found no shortage of women willing to consider traditionally
male occupations. Rather, the barriers to gaining employment were primarily found to
be structural constraints relating to industry requirements for work experience, together
with employer resistance to taking on women. The lack of flexible working arrangements
or facilities such as toilets or protective clothing, as well as male workplace cultures
remain further barriers to women, but some interviewees in male-dominated industries
felt that many companies had made considerable efforts to improve working conditions
for women – and indeed all workers – in recent years.
We have seen that the political will to drive change – at national and regional
levels – has been a key force behind the initiatives discussed here. Where this has been
combined with commercial imperatives – by introducing equality requirements into the
contracts of those providing public services – there is great potential for finally seeing
change in the gender balance of industries that have previously proved highly resistant.
Several interviewees believed that the use of procurement to address equality issues was a
powerful tool, and one that could continue to be used and developed, in particular with
the legislative backing provided by the public sector equality duties. There is optimism
about the outcomes of including equality requirements in contracts for construction of
the 2012 Olympics, and evidence from the East London Line project was encouraging.
However, Clarke and Wall (2004) have shown us that progress for women in the
construction industry has historically been marked by advances at certain periods, which
are then set back by political changes or economic circumstances. Wall points out that
the advances made by women during the 1970s and 1980s did not last long:
By the early 1990s the construction industry was in deep recession and many in the local
authority DLOs had been made redundant after the imposition by the Conservative government
of compulsory competitive tendering (CCT). The GLC had been completely disbanded by
Margaret Thatcher, causing chaos in London’s education and services. The links built up
between women’s training workshops and the DLOs that enabled women to continue training
as adult trainees ended.
(Wall 2004: 168)
There are some worrying parallels with our current situation. We are presently facing
an economic crisis that has had a major impact on the construction industry, among many
others, and the political changes at the level of London-wide and national government
have seen a move from left to right. On the other hand, the need to consider equality is
more deeply embedded now both in the legal framework and in the operation of many
corporate and public organisations. Even if a new government does not pursue further
measures to address gender inequality, the (albeit compromised) legal framework of the
Equality Act 2010 offers a tool to use for those who have a will to address inequality. It
remains to be seen, though, whether the strengthened specific public sector duties in
relation to procurement will be introduced.
Some interviewees hoped, though, that as equality considerations have been

successfully established in the procurement practice of many public authorities, this
would continue despite changes in government. The former Head of Equalities at the
LDA reflected this view:
I think a lot of authorities like the LDA and RDAs [Regional Development Agencies] have been
really strong in trying to embed equalities into procurement, they wouldn’t want to let that go.
Many of the initiatives highlighted here have targeted both cultural and attitudinal
change, as well as employer practices concerning the recruitment of women, and there
are indications that such changes may become part of a gradual shift that becomes
embedded in attitudes and employer practices concerning the employment of women
and men. It can only be hoped that these deeper cultural trends in attitudes towards
gender may weather the changing political and economic climate.
References
Anker, R. (1997), ‘Theories of occupational segregation by sex: An overview’, International Labour
Review 136(3): 315–339.
Clarke, L. and M. Gribling (2008), ‘Obstacles to diversity in construction: The example of Heathrow
Terminal 5’, Construction Management and Economics 26(10): 1055–1065.
Clarke, L. and C. Wall (2004), ‘Now you’re in, now you’re out: Women’s changing participation in
the building trades in Britain’, in Women in Construction, L. Clarke, E.F. Pedersen, E. Michielsens,
B. Susman and C. Wall (eds), Brussels: CLR/Reed Business Information, pp. 24–47.
Cockburn, C. (1991), In the Way of Women: Men’s Resistance to Sex Equality in Organizations, London:
Macmillan.
DCLG (2007), Towards A Fairer Future: Implementing the Women and Work Commission recommendations,
London: Department for Communities and Local Government.
Dickens, L. (2007), ‘The road is long: Thirty years of equality legislation in Britain’, British Journal of
Industrial Relations 45(3): 463–494.
Djan Tackey, N., H. Barnes, H. Fearn and R. Pillai (2009), Evaluation of the Race Equality Procurement
Pilots, DWP Research Reports, London: DWP.
EHRC (2009), Equalities and Procurement Research Summary, London: Equality and Human Rights
Commission.
EOC (2001), Just Pay: Report of the Equal Pay Task Force, Manchester: Equal Opportunities
Commission.
—— (2004), Plugging Britain’s Skills Gap: Challenging Gender Segregation in Training and Work,
Manchester: Equal Opportunities Commission.
—— (2005), Free to Choose: Tackling Gender Barriers to Better Jobs, Great Britain Summary Report on
EOC’s Investigation into Workplace Segregation of Women and Men, Manchester: Equal Opportunities
Commission.
—— (2006), Facts about Women and Men in Great Britain 2006, Manchester: Equal Opportunities
Commission.
EOR (2010), ‘25 years of equality reporting’, Equal Opportunities Review 200.
GLA (2007). The Construction Industry in London and Diversity Performance, London: Greater London
Authority.
Godwin, K. (2009), ‘Transport for London: Contracting for equality’, Equal Opportunities Review 185:
12–16.
Government Equalities Office (2009a), Annual Report and Resource Accounts 2008–2009, London:
GEO.
Government Equalities Office (2009b), A Fairer Future The Equality Bill and Other Action to Make
Equality a Reality, London: GEO.
Government Equalities Office (2010), Equality Bill: Making it Work: Policy Proposals for Specific Futies,
Policy Statement, London: GEO.
Gurjao, S. (2006), Inclusivity: The Changing Role of Women in the Construction Workforce, Ascot: The
Chartered Institute of Building.
Hamilton, K., L. Jenkins, F. Hodgson and J. Turner (2005), Promoting Gender Equality in Transport,
EOC Working Paper Series, Manchester: Equal Opportunities Commission.
Kingsmill, D. (2001), A Review of Women’s Employment and Pay, London: Women and Equality
Unit.
LDA (2007), The London Development Agency Gender Equality Scheme 2007–2010, London: London
Development Agency.
McCrudden, C. (2009), ‘Public procurement and the Equality Bill: A modest proposal’, Equal
Opportunities Review 185: 8–11.
National Statistics (2009), ‘Gender pay gap narrows’. Published 12 November 2009. http://www.
statistics.gov.uk/cci/nugget.asp?id=167 [accessed 16 November 2009].
ODA (2 December 2008), ‘London 2012 can “blaze a trail” for women in construction work says
Olympics Minister’ http://www.london2012.com/press/media-releases/2008/12/london-2012-
can-blaze-a-trail-for-women-in-construction-work-says-olympics-m.php. [accessed 4 February 2010].
—— (2007), Procurement Policy, London: Olympic Delivery Authority.
OGC (2008), Make Equality Count, London: Office of Government Commerce.
Rubenstein, M. (2009), ‘The EOR guide to the Equality Bill: Part 3 public sector duty’, Equal
Opportunities Review 191.
—— (2010), ‘Equality Bill: House of Lords Report Stage’, Equal Opportunities Review 199.
Wall, C. (2004), ‘Any woman can’: 20 years of campaigning for access to construction training and
employment, Women in Construction, L. Clarke, E.F. Pedersen, E. Michielsens, B. Susman and
C. Wall. (eds), Brussels: CLR/Reed Business Information, pp. 158–172.
Women and Work Commission (2006), Shaping a Fairer Future, London: Women and Work
Commission.
Wright, T. (2009), ‘Women edge into the driving seat’, Labour Research 98(3): 10–13.
—— (2011), ‘Exploring the intersections of gender, sexuality and class in the transport and
construction industries’, in Equality, Inequalities and Diversity – Contemporary Challenges and
Strategies, G. Healy, G. Kirton and M. Noon (eds), Basingstoke: Palgrave Macmillan.
Index
Page numbers in italics refer to figures and tables.
3Ds London project 249–51, 262–3 implications of 226–8

critical success factors 259–60, 260 national stakeholder perspectives 239
employability and employment 251–3 public vs. private sector 224–5
good practice case studies 253–4 regulations, impact of 226–8
BEARS Youth Challenge 254–5 see also mature women and the legal
Building London Creating Futures profession; older workers
255–6 age diversity 228–9, 230
MENCAP Pathway Project 256–7 Ahmad, B. 119
Praxis 257–58 Allen & others v GMB 64, 65
Tamil Refugee Training and Allen, N.J. 207
Employment Centre 259 Alleyne, A. 119
Archibald v Fife Council 19
Acas/CIPD religion and belief study Arnold, J. 214
aims and objectives 158 Aronson, P. 90
challenges/solutions 159 ‘associative discrimination’ 19
conclusions of 168 AURORA 84
access to labour market, see 3Ds London
project Bacchi, C.L. 281
Access to Work scheme 176 Balanced Migration 139–40
Advisory, Conciliation and Arbitration Batson, Brendan 132
Service (Acas) 20, 238, 239 BEARS Youth Challenge 254–5
religion and belief study, see Acas/CIPD Bernard Matthews Farms 150
religion and belief study best practice 63–7, 130, 166
affirmative action 280–81, 281, 290 BFBM (Bundesverband der Frau in Business
age discrimination 206, 206–7, 219, 221–2, und Management) 84
231 Black, Dame Carol 186
and gender 222 BPW (Business and Professional Women)
in the legal profession 219–20, 223–4, DE 84
225–6, 229 BPW (Business and Professional Women)
legislation against UK 84
effectiveness of 230–31, 237–9 Brent Educational Art Recreational Services
employer practices, impact on 254–5
239–44 Briskin, L. 93, 273
Employment Equality (Age) British printing industry study, see printing
Regulations 2006 219, 226–8, industry
230, 230–31, 235 Brown v Rentokil 52–3
Equality Act 2010 230–31 Building London Creating Futures 255–6
Building Work for Women project 298 male dominance of 295

bullying corporate social responsibility (CSR) 262, 279
effect on victims 35 Court of Justice (CoJ) 49–50, 52–3, 55
criminalising 43 Crime and Security Act 2001 43
of disabled workers 178, 179
employers’ policies 39, 41, 44 Dalal, F. 114
examples of 33 Danieli, A. 270
forms of 35 Daniels, G. 270
MSF union definition 35 Dekker v Stichting Vormingscentrum voor Jong
scale of 34 Volwassen Plus 49–50
tackling 163, 167 Del Monte Foods v Mundon 53–4
trends, current 41–3 demographic change 203–6, 212–14;
see also harassment see also age discrimination; older
burden of proof 19, 20, 39, 41, 175 workers
business case approach 1–2, 262 Dickens, L. 23, 24, 30, 108, 270
to age equality 228–9, 236 dignity at work policies 41, 44
to disability adjustments 192 direct discrimination 13–15, 16, 36
to gender equality 286, 294 of disabled workers 18, 19
to religion and belief equality 159 pregnancy-related discrimination 49,
risks and limitations of 78, 122–4, 229 51–2, 55
to sexual orientation equality 97, 100, religion and belief discrimination 157
103, 107, 108 disability, definition 174–5, 175
disability discrimination 18–20, 175
Cassin, M. 119 ‘associative discrimination’ 19
Chartered Institute of Personnel and experiences of disabled employees 178–80
Development (CIPD) 235 indirect discrimination 16
religion and belief study, see Acas/CIPD pregnancy-related discrimination 54
religion and belief study proving disability 19
Chief Constable of West Yorkshire Police v Khan trade unions’ role in fighting 180–82
18 see also mental health problems
Clarke, L. 299, 305 Disability Discrimination Act (DDA) 1995
Coleman v Attridge Law 19 18–19, 23, 174–5, 177, 182
Coleman v Attridge Law and Steve Law 39–40 ‘different’ vs. ‘equal’ treatment 175,
Colling, T. 270 176, 180, 181
Collins, H. 14 employer responsibilities 177–8
compensation 20, 21, 37, 40–41 and employers 176–7
Conley, H. 26, 300 medical focus of 174, 180, 181, 182
Connolly, M. 16 and mental health 186, 187, 191–2
construction sector non-disclosure, consequences of 191
Building London Creating Futures 255–6 workplace adjustments, see workplace
Galaxy age equality project 212 adjustments
gender segregation research project, Disability Equality Duty (DED) 2006 24, 25,
see occupational gender segregation, 28, 175, 177
transport/construction sector research discrimination 1
project claiming 21
Lyndsey oil refinery site dispute 139–40, direct discrimination, see direct
148 discrimination
I n d e x 311
indirect discrimination 14, 15–16, 156, Equality Representatives (ERs) 271

157, 206, 227 evolution of 25–9
intersections of 219–20, 221–2, 231 former legislation included 12
legislation against 11–13, 21–2, 23, 25 harassment legislation 38–40
Equality Act 2010, evolution of 25–9 multiple discrimination 231
principles of 13 pregnancy-related discrimination 51,
public sector equality duties 24–5 53, 54–5
review, call for 23–4 procurement and equality 303–4
see also specific legislation socio-economic disadvantage 274
less favourable treatment 16–17 Equality and Human Rights Commission
proving 20–21 (EHRC) 25, 26, 147, 148, 179, 231,
tribunal outcomes 20 274
in WINs study 89–90 procurement and equality 301, 304
see also specific types Equality Commission for Northern Ireland
diversity approach 100, 121–2, 123–4 147
Douglas, C. 118–19 equality impact assessments (EIAs) 26–7, 29
Duncan, C. 222 Equality Representatives (ERs) 265–6, 276
UNISON pilot project
Ellis, E. 49 activism 266–8
Employment Appeals Tribunal (EAT) 16, 20, integration into union 272
49, 53–4, 146 organisational role 268–71
employment, entry into, see 3Ds London self-organisation 272–6
project statutory rights 271–2
Employment Equality (Age) Regulations European Union Directives
2006 219, 226–8, 230, 230–31, 235 Employment Equality Directive 97, 175,
Employment Equality Directive 97, 175, 226 226
Employment Equality (Religion or Belief) Employment Framework Directive 12,
Regulations 2003 155, 166–7 38, 227
Employment Equality (Sexual Orientation) Equal Treatment Directive (ETD) 23, 35,
Regulations 2003 97–8, 166–7 38, 49–50, 52, 53, 55, 206
Employment Framework Directive 12, 38, Fixed-Term Work Directive 50
227 Pregnant Workers Directive 55
Employment Protection Act 1975 48–49 Racial Equality Directive 12, 38
employment tribunals 20, 20–21, 54, 157 Temporary Agency Workers Directive 150
Equal Opportunities Commission (EOC) 51
equal opportunities policies 164–5, 179 Fevre, R. 179
Equal Pay Act 1970 11, 23 Field, Frank 139–40
equal pay claims 16–17, 21, 69 Fitzpatrick, B. 156, 157
Equal Treatment Directive (ETD) 23, 35, 38, Fixed-Term Work Directive 50
49–50, 52, 53, 55, 206 Fosh, P. 181
Equality Act 2010 1, 21–2 Foster, D. 178, 181
age discrimination 227 Fredman, S. 25, 44
age equality 230
Conservative Party reservations 72 gender equality 55, 219, 280
disability discrimination 174, 175, 177, global strategies 280–81
178, 182, 187 national rankings 283–4, 284
disappointment in 29–30 in Norway, see Norway
see also occupational gender segregation; legislation trends, current 41–3

sex discrimination Protection from Harassment Act 1997
Gender Equality Duty (GED) 2007 24, 25, 37–8
28–9, 66, 300 for religion and beliefs 157, 162, 164
gender pay gap 62, 69 religious beliefs vs. sexual orientation
barriers to equal pay 70–71 166
in printing industry, see printing responsibility shift 44
industry sexual 35, 77, 89
challenges of addressing 66–7 for sexual orientation 157
equal pay claims 16–17, 21, 69 third party 40
impetus to address 64–6 see also bullying
in legal profession 221 Harper, Mark 72
litigation examples 64–5 Hayes v Malleable Working Men’s Club &
and occupational gender segregation Institute 49
293, 294 Healy, G. 270, 272, 276
procurement, use of 300–303 Hepple, B. 23, 24, 230
gender segregation, see occupational gender Hertz (Handels-og Kontorfunktionaernernes
segregation Forbund I Denmark (acting for Hertz) v
Goldberg, D.T. 115 Dansk Arbejdgiverforening (acting for
Graphical, Paper and Media Union (GPMU) Aldi Marked K/S)) 50, 52–3
72, 74 Hoque, K. 179
Greater London Authority (GLA) 300, 301 Human Development Report 283
Greene, A.-M. 272 Humphrey, J. 272
Gregg report 263
Grint, K. 276 identity 119, 120–21, 213, 219–20
Grønmo, S. 284 immigration, see migrant workers
Immigration Asylum and Nationality Act
Hampson v Department of Education and 2006 144
Science 16 Improving Access to Psychological
Hand, Richard 224 Therapies (IAPT) 186
Handels-og Kontorfunktionaernernes Forbund indirect discrimination 14, 15–16, 156, 157,
I Denmark (acting for Hertz) v Dansk 206, 227
Arbejdgiverforening (acting for Aldi
Marked K/S) 50, 52–3 James v Eastleigh Borough Council 14
harassment 13, 17, 35, 163 job segregation, see occupational gender
Acts and Regulations employed 36–7 segregation
anti-discrimination legislation, failure Jowell, Tessa 299
of 36
by association 39–40 Kerr, A. 274–5
compensation awards 40–41 Kirton, G. 272
costs to employers 42–3, 43
criminalising 43 Law Society 222–3, 228–9
of disabled workers 175, 178, 179 Layard, Richard, Baron Layard 186
employers’ policies 39, 41, 44 learning disabilities 256–7
Equality Act 2010 38–40 legal profession
examples of 33 age discrimination 219, 227–8
intentionality 39 age distribution 222–3, 223
I n d e x 313
age diversity and recruitment 228–9 fear of discrimination 190–91

and mature women further information 198–9
employment 225–6 ignorance of, public’s and employers’
studying law 223 187
training contracts 224–5 legal rights and business solutions
sex discrimination 219–20 191–4
less favourable treatment 13, 14, 16–17 positive changes, current 186–7
Linnaeus, Carolus 114 reasonable adjustments 192–3
Livingstone, Ken 300 planning for, with Parachute 194–5
London Borough of Lewisham v Malcolm 18, proactive 196–8
54 reactive 192–4
London Development Agency (LDA) 294–5, stigma of 188, 189–90, 191, 196
296, 300, 304, 306 workplace changes, rate of 189–90
London 2012 Olympics 298, 303 Meyer, J.P. 207
procurement and equality 301–2 migrant workers 139–53
Women’s Project 298–9 discrimination against 145
London Underground v Edwards (No. 2) 16 further information 152–3
Loretto, W. 222, 230 immigration law and employment
Løyning, T. 284 142–4
Lyndsey oil refinery site job dispute industries employing 141–2, 142
139–40, 148 issues and good practice 146–7
dismissal/redundancy 149–50
Mace 255–6 health and safety 150
Maguire, M. 221, 222, 226 language difficulties 148–9
management style 42 non-UK qualifications 149
Martin, Kevin 229 occupational segregation 148
Mason, Paul 151–2 at recruitment stage 147–8
mature women and the legal profession 231 Points-Based System (PBS) 143–4, 149
age diversity and recruitment 228–9 Praxis project 257–8
employment 225–6 rights at work 145–6
legislation, effectiveness of 230–31 statistics 140, 141
networking, importance of 225 Mind 186
public vs. private sector 224–5 Mitchell, M. 166
regulations, impact of 226–8 Morgan Cole LLP 229
studying law 223–4
training contracts 224–5 Nagarajan v London Regional Transport 18
Mayhew, K. 213 National Centre for Social Research religion
McGarry, T. 50 and belief study, see Acas/CIPD
McGlynn, C. 229 religion and belief study
McIlroy, J. 270 National Employment Rights Authority
McLaughlin, E. 120, 121 (NERA) 151
MENCAP Pathway Project 256–7 National Minimum Wage 64
mental health 188–9 New Deal programmes 250
mental health problems 185–98 Noon, M. 179
costs to employers 188 Norway
defined 189 affirmative action policies 282, 282–3
Disability Discrimination Act 1995 186 gender equality
global ranking 284, 284 Page, M. 26

strategies for 281–3 Parachute tool 194–5
gender representation law 284–6, 285, pay inequality, see gender pay gap
290–91 Pearce v The Governing Body of Mayfield
compliance with 286–8, 287 Secondary School 17
women’s views on 288–90 postcode discrimination 254
occupational gender segregation 279–80 power resources 71
Norwegian Gender Equality Act 281–2 Praxis 257–8
pregnancy-related discrimination 47–8, 55, 77
occupational gender segregation 11, ‘comparator’ problem 48–9, 51
279–80, 293 employer culpability 53–4
printing industry 70, 76, 76–7, 78 and fixed-term contracts 50
in Norway 279–80 legislation, benefits of 54–5
procurement, use of 300–304 post-maternity leave illnesses 50
public sector 61–2 pregnancy-related illnesses 52–3
tackling, importance of 294–5 rights during maternity leave 52
transport/construction sector as sex discrimination 48–51
barriers to non-traditional work 295 workers vs. employees 52
employers’ resistance to hire women Pregnant Workers Directive 55
297–9 printing industry
London Olympics 2012 298–9, gender pay gap 72, 73
301–2, 303 maternity and childcare factor 77
political will for change 299–300 progression factor 76, 76
women’s awareness of recruitment factor 76–7
non-traditional occupations 296–7 reinforcement mechanisms 74–5
occupational stress 41–42 sexual harassment factor 77
older workers 206, 212–14 successful challenges to 75
EU numbers 205 undervaluation of women’s work
flexible working policies 209–11, 213–14 73–4
monitoring 213, 214 union, failure of 74, 75
motivations occupational gender segregation 76, 76–7
of employers 208 pay structure 73
of trade unions 209 procurement and equality 230, 266,
of workers 208–9 300–304, 305–6
organisational committment 207, 213 Protection from Harassment Act 1997 37–8
retention of 207 public sector
retirement plans, factors in 209 and anti-discrimination legislation
and social aspect of work 214 224–5, 230
training opportunities 207, 208, 213 employment data, collection of 29
valuing 208, 241–2 equality duties 24–5
work–life balance 87–9, 210–11, 213–14 Disability Equality Duty (DED) 2006
workplace adjustments for 211–12, 214 24, 25, 28, 175, 177
see also age discrimination; mature and Equality Act 2010 25–29
women and the legal profession; Gender Equality Duty (GED) 2007
retirement 24, 25, 28–9, 66, 300
Opsahl, T. 286, 288 Race Equality Duty (RED) 2001 24,
25
I n d e x 315
equality impact assessments (EIAs) 26–7, positive action 27–8

29 and sexual orientation 106
feminisation of 61 Reed v Stedman 39
gender pay gap 62–3 refugees 144
challenges of addressing 66–7 Praxis 257–8
impetus to address 63–6 Tamil Refugee Training and
model employer question 59–60, 63 Employment Centre project 259
occupational gender segregation 61–2 regulation 30, 206
part-time work 61, 62 religion and belief 155
procurement and equality 230, 266, Acas/CIPD study, see Acas/CIPD religion
300–304, 305–6 and belief study
socio-economic duty 28 change 162–4
complaints and grievances 164
race 114–15 equal opportunities policies and
race discrimination 11–12 practices 164–6
trade unions’ role in fighting 129–30 knowledge/understanding 161–2
see also racism; Working Against Racism legal context 155–6
(Davis et al.) guidelines needs of employees 160
Race Equality Duty (RED) 2001 24, 25 previous research 156–7
Race, Immigration and Trade Unions religion/belief vs. sexual orientation
(RITU) research project 129–30 regulations 166–7
Race Relations Act 1976 12, 23 religious and business needs 159–60
racial equality 113–14, 116 religious observances 160–61
achieving, challenges for 124 responsibilities, employer’s
action, recommendations for 124–6 bullying and harassment policies 39, 42,
racialised thinking 114–16 43, 44
race equality directive 12, 38 disability, adjustments for 176, 177–8, 192
racism 114 gender equality 25
experiences of black managers 116, public authority duties 24, 25, 230
118–19 race equality 119, 125
case study 117–18 retirement
collusive denial of racism 120 ‘duty to consider’ legislation 235–6,
identities, negotiating 120–22 244–5
skin colour matters 120 employer practices, impact on
normalisation of 115 239–40
racialised thinking 114–16 national stakeholder perspectives
Working Against Racism guidelines, see 237–9
Working Against Racism (Davis et al.) request consideration 241–2
guidelines request handling 242–3
Ramdoolar v Bycity Ltd 54 use of, employers’ 243–4
Randøy, T. 284 factors influencing decision 209
Reaney v Kanada Jean Productions Limited 49 mandatory retirement age 206, 235, 245
recruitment see also older workers
and age 206, 224–6, 228–9, 230 Rijkers, B. 213
and disability 177
and gender 70, 76–7, 297 Sabine Mayr v Backerei und Konditorei Gerhard
and nationality 145, 147–8 Flockner OHG 55
San Ling Chinese Medical Centre v Lian Wei St Helens MBC v Derbyshire and others 18
Ji 146 Stephen Lawrence Inquiry 24, 130
Savage, B. 156 Stewart v Cleveland Guest (Engineering) Ltd 36
segregation, occupational, see occupational stigma 180, 188, 189–90, 191, 196
gender segregation Stonewall Diversity Champions programme
Seierstad, C. 286, 288 99, 101, 108
sex discrimination 11–12, 35, 219–20, 221 Strathclyde Regional Council v Porcelli 17
gender pay gap, see gender pay gap Sugar, Sir Alan 48
occupational gender segregation, see Sutton and Merton Hospital Trust 139
occupational gender segregation
pregnancy-related discrimination, see Tamil Refugee Training and Employment
pregnancy-related discrimination Centre 259
Sex Discrimination Act 1975 11, 23 Teigen, M. 280
pregnancy-related discrimination 47, Tele Danmark A/S v Handels-og
48, 49, 51 Kntorfunktionfrernes Forbund i
sexual harassment 17, 35, 77, 89 Danmark (acting on behalf of Brandt-
sexual orientation discrimination Nielsen) 50
equality/diversity policies 97–101 Temporary Agency Workers Directive 150
implementation of policies 101–2 Thompsons Solicitors 27
progress factors identified by LGB time limits for tribunal claims 21
workers 102 Time to Change campaign 186
awareness training 103–4 Trades Union Congress (TUC)
benchmarking 106–7 demonstrations/protests 134, 135, 137
diversity champions 103 disabled workers 181
diversity/inclusion campaigns 103 Equality Bill White Paper, response to
enforcement barriers, removing 104 28–9
integrating diversity into roles and Equality Representatives (ERs) 265
appraisals 104–5 Gender Equality Duty (GED) 2007 29
intranet outreach to those not ‘out’ mandatory retirement age 235, 237
105 migrant workers 149, 150
LGBT-friendly policy and benefits National Minimum Wage 64
105 racism, response to 130
LGBT groups and networks 102–3 Working Against Racism guidelines, see
LGBT mentoring systems 106 Working Against Racism (Davis et al.)
LGBT recruitment and induction guidelines
initiatives 106 trade unions
marketing to LGBT businesses and and disabled workers 180–82
individuals 107 Equality Representatives (ERs), see
‘out’ LGBT role models 105 Equality Representatives (ERs)
sexual orientation monitoring 106 Gender Equality Duty (GED) 2007 29, 66
sponsorship and external events 107 gender pay gap, fighting 69
sexual orientation rights vs. religion/belief and migrant workers 150
rights 166–7 and older workers 209
Shamoon v Chief Constable of the RUC 14 and printing industry 74, 75
Singh, V. 279 racial discrimination, fighting 129–30
Skjeie, H. 280 see also Working Against Racism
Soames, Nicholas 139–40 (Davis et al.) guidelines
I n d e x 317
self-organisation 272–3 skills, improving 294

see also Trades Union Congress (TUC); work experience placements 297–8
Union Learning Representatives see also gender pay gap; occupational
(ULRs); UNISON gender segregation; women’s
Transport for London (TfL) 163, 301, 302 independent networks (WINs)
transport sector, see occupational gender Women and Manual Trades (WAMT) 297,
segregation, transport/construction 298
sector Women and Work Commission 271, 294,
tribunals, employment 20, 20–21, 54, 157 300
Turley v Allders Department Stores 49 Women into Non-Traditional Occupations
Turner, Adair 205 project 296
women’s independent networks (WINs)
UK Border Agency (UKBA) 143, 144 83–4, 93
Union Learning Representatives (ULRs) 272 career obstacles 84–5
Union Modernisation Fund (UMF) 265–6 discrimination 89–90
UNISON 63, 64, 75, 272–6 masculine organisational culture 85–6
Equality Representatives (ERs), see self-esteem/confidence problems 86–7
Equality Representatives (ERs) work-life balance 87–9
East Germany/West Germany
Vento v Chief Constable of West Yorkshire differences 88–9
Police 40 women-only groups, importance of
victimisation 17–18, 20 90–92
Vinnicombe, S. 279 Working Against Racism (Davis et al.)
violence, workplace 34, 35, 42, 43 guidelines
Virdee, S. 276 accepting existence of racism 131
Vos, R. 205 anti-racist education/training 137
black activists on union committees 132
Waddington, J. 274–5 black officers and leaders 133–4
Wall, C. 299, 300, 305 black women 134–5
Ward, J. 100 campaign against racism 138
Welfare Reform Act 2009 263 ethnic monitoring 136
welfare-to-work measures 250 race equality and collective bargaining
West, C. 114 131–2
White, P.J. 230 recruiting black workers 135–6
Winstanley, D. 100 representing/supporting black workers
women 137
and age discrimination 222 Working Lives Research Institute (WLRI) 249
Ford Motor Company strike 1968 11 workplace adjustments 174, 175, 176,
gender and age intersection 221–2 182–3
and the legal profession 220–21 employer responsibilities 19, 176,
mature women, see mature women and 177–8, 192
the legal profession experiences of disabled employees
non-traditional occupations, awareness 178–80
of 296–7 for interviews 177
pregnancy-related discrimination, see trade unions, role of 180, 181–2
pregnancy-related discrimination for workers with mental health
in public sector employment 61 problems 189, 192–3
proactive 196–8 World Health Organization (WHO) 188,

reactive 193–5 189
Workplace Employee Relations Survey
(WERS) 98
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Gower Handbook of

Edited by Tessa Wright and Hazel Conley

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ISBN 9780566088988 (hbk)

PART I LEGal FraMEWOrK aND tHE LiMitS Of tHE LaW 9

Chapter 1 A Right Not to be Discriminated Against: The Origins and

Chapter 2 The Road to Equality: Legislating for Change? 23

Chapter 3 Dignity at Work: The Law’s Engagement with Bullying and

Chapter 4 The Law Relating to Pregnancy and Maternity Leave  47

PART II DiSCriMiNatiON(S) iN tHE WOrKplaCE:

Chapter 5 Model Employment? The Challenges Ahead for Public Sector

Chapter 6 Pay Inequality in Manufacturing Industry:

Chapter 7 Career Obstacles, Discrimination and Women’s Independent Networks:

Chapter 8 Creating Inclusive Organisations: What do Lesbian, Gay and Bisexual

Race, Migration and Religion 111

Chapter 9 The Racialised Organisation: The Experiences of Black Managers  113

Chapter 10 The Role of Trade Unions in Fighting Racial Discrimination 129

Chapter 11 Migration and Work: Discrimination Obligatory? 139

Chapter 12 Management Handling of Religion and Belief in the Workplace:

Chapter 13 Understanding Workplace Adjustments for Disabled Employees:

Chapter 14 Mental Health and Discrimination:

Chapter 15 Demographic Change and Implications for

Chapter 16 Ageism, Solicitors and Female Mature Entrants:

PART III Equality – New Approaches 247

Chapter 18 Measures to Tackle Disadvantage and Discrimination in

Chapter 19 ‘Eyes and Ears’ in the Workplace: The Developing Role of

Chapter 20 Strategies for Equality: The Norwegian Experience of the Use of

Chapter 21 Tackling Gender Segregation in the UK Transport and

Figure 11.1 Percentage of UK employees not born in UK  141

Table 1.1 Outcome of tribunal claims, 2007–2008 20

HCAs Health Care Assistants

These are exciting, if somewhat challenging, times to edit a book on discrimination at

the anti-discrimination legislation. Her conclusion is that advances in reproductive technology

3 Kindly reprinted by permission of the TUC and WLRI.

• Part-time workers (Prevention of Less Favourable Treatment) Regulations 2000 gave a

There is therefore now a well-established body of law prohibiting discrimination at

The Concepts of Discrimination and Less Favourable Treatment

• The right not to be directly or indirectly discriminated against;

1 Now, s.13 of the 2010 Act.

2 Now, s.19 of the 2010 Act.

Indirect discrimination is intended to tackle cases where employers have seemingly

• Put members of the protected group at a particular disadvantage;

Less Favourable Treatment

because they had challenged discriminatory practices. A recent case on victimisation is

Table 1.1 Outcome of tribunal claims, 2007–2008

Procedures for Claiming Discrimination

Discrimination claims are submitted to employment tribunals, generally consisting of

Conclusion: Revising Discrimination Laws

Legislating for Change?

The current legislative approach in Britain centres on a predominantly private, individualised

Positive Duties – A New Direction

The Equality Act 2010 – All Change?

Conclusion: The End of the Road?

EHRC (undated) http://www.equalityhumanrights.com/legislative-framework/equality-bill/summary-

The Law’s Engagement

Bullying and Harassment at Work

Persistent, offensive, abusive, intimidating, malicious, or insulting behaviour, abuse

The Law’s Response to Harassment at Work

• Health and Safety Act 1974;

Protection from Harassment Act 1997

Harassment, Discrimination Law and a Freestanding Claim

PART I LEGal FraMEWOrK aND tHE LiMitS Of tHE LaW 9

Chapter 2 The Road to Equality: Legislating for Change? 23

Chapter 4 The Law Relating to Pregnancy and Maternity Leave 47

Race, Migration and Religion 111

Chapter 9 The Racialised Organisation: The Experiences of Black Managers 113

Chapter 10 The Role of Trade Unions in Fighting Racial Discrimination 129

Chapter 11 Migration and Work: Discrimination Obligatory? 139

PART III Equality – New Approaches 247

Figure 11.1 Percentage of UK employees not born in UK 141

Table 1.1 Outcome of tribunal claims, 2007–2008 20