Published: 23/5/2002, Volume II2, No. 5806 Page 43 45
Public bodies have until 31 May to ensure they comply with the Race Relations (Amendment) Act 2000.
The deadline could not have fallen at a worse time. The NHS is under huge financial pressure and in the throes of more structural change. Yet health organisations must find the time and resources to review their services and analyse their impact on the different ethnic groups in their communities.
The act imposes a general duty and some specific duties (see boxes below and overleaf ). While legislation outlawing discrimination on the grounds of race has been on the statute book for 26 years, the imposition of a positive duty to promote race equality and good race relations is a new experience for all public bodies other than local authorities.
Compliance will require, in some cases, an entirely new approach to the processes of policy development, service delivery and employment.
It will certainly require a review of policy and functions and this process may be a complex one.
NHS organisations will need to review and analyse general and local population data, research findings, survey results and statistics from comparable organisations.
In some cases, they will need to commission specific research.
The consultation process required to assess the impact of particular functions on race equality may involve questionnaires, public meetings or citizens' juries.
New ethnic monitoring forms may have to be developed and implemented for a broad range of employment interactions.
NHS managers and staff will then have to be made aware of the new duties and the implications for them in how they carry out their work.
Information gathering is not enough, however. Mechanisms should be introduced to review and publish data and to implement the changes necessary as a result, in order to comply with the general duty. To minimise the risk of legal challenge, managers should document every stage, from policy formulation to service delivery and employment practice.
Organisations that fail to meet the general duty may be challenged by an application to the High Court for judicial review. This application may be brought by service users or other interested parties, such as pressure groups or the Commission for Racial Equality.
Where there is failure to meet the specific duties, the CRE is responsible for enforcement.
Though it has indicated that it will police this legislation with a 'light touch', the CRE can issue a 'compliance notice' to an organisation that persistently fails to comply, giving it three months to rectify any failings.
Failure to do so could result in the CRE applying to the county court for an order to obey the notice or provide relevant information. Failure to obey the order would be a contempt that might result in either a fine or imprisonment of the individuals liable for the actions of the organisation.
Organisations may find noncompliance to be a particular issue when it comes to employment tribunals.
Applicants will undoubtedly request copies of the race equality strategy and documentation relevant to the employer's steps to comply with its obligations under the act. Failure to produce this, or producing documentation that is inaccurate or inadequate, will create a very poor impression.
NHS organisations cannot avoid liability by contracting out services. For example, a private contractor might provide restaurant services in a hospital that disproportionately affects some ethnic minorities (such as only offering food that some minorities cannot eat). The contractor will not be responsible for breach of the duties (since they do not apply to private bodies) but the trust responsible for the hospital will be.
In practical terms, therefore, NHS organisations will have to ensure that private sector organisations with which they are contractually tied comply with the general and specific duties. This presents practical difficulties for contracts that are already in place and do not contain such provisions. In this case, NHS organisations will need to persuade the private sector organisation to comply.
The code stipulates that a lack of resources will be no excuse for failing to comply with the duties, but the government has given no indication as to how NHS organisations are expected to resource the work required.
While it seems likely that a court may have some sympathy with an organisation that has tried to comply with the duties but failed through lack of resources, this will not in itself provide a defence for organisations that disregard them.
The duties imposed by the act are onerous and will involve a fundamental changes in the way NHS organisations carry out their functions. Time is short and any bodies that have not thought through the implications of this legislation must do so as a matter of urgency. l Stephen Gummer is a partner, national employment department, Beachcroft Wansbroughs.
Christina Morton is senior solicitor and professional support lawyer, national employment department, Beachcroft Wansbroughs.
What the act requires: the general duty The general duty came into force on 3 December 2001, and requires all public authorities to:
eliminate unlawful racial discrimination;
promote equality of opportunity;
promote good relations between persons of different racial groups.
The general duty is obligatory and should fundamentally influence how NHS bodies formulate and implement their policies and carry out their functions.
The Commission for Racial Equality has issued a draft code of practice that explains its meaning.
Once this has been finalised and approved by Parliament, it will acquire the status of 'soft law'.
In other words, it will not be a legal requirement, but failure to observe it may be taken into account by a court when deciding whether a particular body is complying with the Race Relations (Amendment) Act 2000.
To comply with the general duty, NHS bodies need to:
Identify which functions are relevant to race equality Draft guidance suggests that 'relevant' means 'having implications for'. This is an extremely wide definition and will cover a large proportion of any NHS organisation's activities. It will cover, for example, all aspects of service delivery to patients, all personnel policies and procedures, and policies and procedures for the appointment of external advisers and contractors.
Prioritise these functions according to their relevance for race equality Some activities, such as those associated with how and to whom healthcare services are offered in the local community, obviously will be relevant and should have a high priority. Others, such as policies for commissioning catering services and the content of hospital menus, will be more difficult to assess.
Assess how these functions, and any related polices, affect race equality This involves clarifying the aims of each function or policy and considering how different racial groups are affected by it. This will mean reviewing various sources - for example, previously collated statistics, records of complaints, surveys and local meetings.
Consider how these functions/policies could be changed NHS organisations will need to consider whether a function or policy disadvantages some groups and if there is an adverse impact on race relations. For example, if information about a particular service is available in languages other than English, are they the appropriate ones? Where it appears a particular activity is having an adverse impact, the measures needed to rectify this may be straightforward, or they may require further research, consultation with the communities affected or careful planning.
What the act requires: the specific duties Race equality schemes Though the final code of practice has not yet been issued, NHS organisations are expected to publish a race equality scheme no later than 31 May. This must:
identify those functions and policies which are relevant to the organisation's performance of the general duty (to be reviewed at least once every three years);
state the arrangements for assessing and consulting on the likely impact of proposed policies on the promotion of race equality;
identify the arrangements for monitoring policies for adverse impact;
state the arrangements for publishing assessments, consultation and monitoring reports;
state arrangements for ensuring public access to information and services which the organisation provides;
state the arrangements for training staff in connection with the new duties.
Ethnic monitoring NHS organisations are also required by 31 May to ensure there are arrangements in place for various types of ethnic monitoring in relation to employment. All bodies must monitor:
the number of staff in post;
applicants for jobs;
the number of employees who receive promotion and training by ethnic group.
The real impact of the monitoring duties will affect those bodies with at least 150 full-time or equivalent staff. In addition to the above, they must monitor, by ethnic group, the numbers of staff who:
receive training;
benefit or suffer detriment as a result of performance assessment procedures;
are involved in grievance procedures;
are the subject of disciplinary procedures;
cease employment with the organisation.
The results of monitoring must be published annually.
The draft code recommends that ethnic monitoring should be done in accordance with the ethnic categorisation set out in the 2001 census.
However, these categories might not adequately reflect the breadth of ethnic minorities working within an organisation or the diversity of the community being served. And extracting this information from employees, let alone service users, may prove difficult. Suspicion or simple antipathy may make data collection difficult. Statisticians' rule of thumb is that anything more than a 10 per cent failure in a response rate will render the statistics unreliable.
In practical terms, It is important to promote awareness of the purpose of monitoring throughout the employment relationship. The Commission for Racial Equality has produced detailed guidance on ethnic monitoring, including suggestions on how to persuade existing and potential staff to complete ethnic monitoring forms and how to deal with employees who refuse. As with the code, this is still in draft form.
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