The Race Equality Duty: What it means for further education colleges by Lifelong Learning UK

RACE EQUALITY GUIDANCE FOR FURTHER EDUCATION COLLEGES

The Race Equality Duty: what it means for further education colleges

Introduction to the resource Purpose This is one in a series of booklets which provide guidance for further education colleges in managing their approach to race equality. This guidance will help providers to meet the requirements of current race equality legislation and offer advice on how to ensure that race equality features appropriately within the new single equality context. Providers can also use this guidance to ensure that race equality issues are addressed as part of their

The guidance in these booklets has a primary focus on race equality and workforce issues. However, the guidance may also be useful when considering approaches to equality matters in general and may be applied to learner issues.

Timeframe

Summary

At the time of writing, colleges are subject to the Race Relations Act 1976 (as amended) and as such this is the main legislative focus of the booklets.

Points to remember when working to meet the requirements of the Race Equality Duty:

The guidance also takes a transitional approach so that providers can use it to prepare for the likely changes towards single equality legislation, which is likely to be implemented in 2010-2011.

Who are the booklets for? These documents contain useful information for governing bodies and corporations, senior management, provider staff, trade union members and officers, marketing and communications professionals, human resources professionals and equality and diversity practitioners.

This series of booklets include: The Race Equality Duty: what it means for further education colleges Race Equality Policies Race Equality and Equality Impact Assessments Publishing Race Equality Information

general approach to single equality. More specific guidance for third sector, work based learning and adult and community learning providers will be produced at a later date.

• Make sure that race equality is everyone’s business, and not a sidelined issue. • Clear identification and allocation of roles and responsibilities for individuals are important to help move activities forward. It is also important that equality and diversity groups are not only representative, but also benefit from a clearly-defined remit, with roles allocated as part of this remit. • Effective mainstreaming approaches (e.g. training, analysis of data, consultation) can help enhance race equality and other equalities areas. However, care should be taken to ensure that mainstreaming initiatives do not lead to a diluted approach to equalities. • It is important to look at race equalities issues in themselves, but also as part of a single equality context as this can help to drill down and understand issues in more detail, e.g. through monitoring exercises and equalities impact assessments. • The Duty applies to different providers in different ways. Even if the Duty does not have direct legal application, it is worth looking at the benefits of having a clear standard on race equality, proportionate monitoring and review mechanisms and communications activity. The Race Equality Duty guidance booklet is divided into the following sections: Section One: • The Race Equality Duty and what it means for further education colleges. Section Two: • Characteristics of a well-performing college (abridged and adapted from the Commission for Black Staff in Further Education Good Practice Guides).

Section One:

The Race Equality Duty and what it means for further education colleges What is the Race Equality Duty?

What is institutional racism?

The Race Equality Duty represents the first piece of proactive equalities legislation in Britain. The Duty comes from the Race Relations Act 1976 (as amended by the Race Relations (Amendment) Act 2000) and places a requirement on public authorities, including education providers, to have due regard to three strands:

This term was brought into public focus after the Macpherson report into the racist murder of Stephen Lawrence.1 The term is used to describe the way in which an organisationâ&#x20AC;&#x2122;s processes, attitudes and behaviour can discriminate against and disadvantage people due to their race, culture or ethnic origin by way of unwitting prejudice, ignorance, thoughtlessness and racist stereotyping.

1. Elimination of unlawful racial discrimination 2. Promotion of equality of opportunity 3. Promotion of good relations between people of different racial groups

The term institutional discrimination covers all the major equalities areas of race, disability, gender, sexual orientation, religion or belief and age.

The Duty takes nothing away from the 1976 Act, but provides additional legislation that requires public bodies to not only address unlawful discrimination where it occurs, but also to be proactive in preventing it from occurring in the first place. The Duty is proactive in helping public bodies and authorities to guard against institutional racism in their policies and practices.

Lord Macpherson of Cluny, 1999. The Stephen Lawrence Inquiry, Report into and Inquiry [online]. Available from: http://www.archive.official-documents.co.uk/document/cm42/4262/4262.htm

The four principles of the Race Equality Duty The Commission for Racial Equality (now the Equality and Human Rights Commission) outline the following four principles within the Duty2:

Obligatory Providers should make sure that race equality is a central part of their organisation. Providers should also ensure that race equality is considered in all relevant monitoring, reviewing, and evaluation systems.

Relevant Providers should consider how their functions have implications for race equality. This is particularly important when considering the transient cycle of staff and learners in the provider environment.

Proportionate The priority of a function in relation to race equality has to be proportionate to its relevance to promoting race equality. In practice this means that higher priority is given to functions that have the greatest potential to impact ethnic groups. Given the ability of further education to influence attitudes, views and prepare people for higher education or the world of work, this principle is important even for colleges with a low local black and minority ethnic population and can guard against racist incidents.

Complementary The Race Equality Duty contains three complementary strands: • eliminating unlawful racial discrimination • promoting equal opportunities • promoting good relations between people from different racial groups. Whilst they are distinct parts of the Duty, they can also overlap and enhance each other if implemented effectively.

Adapted from ‘The duty to promote race equality: a guide for further and higher education institutions’, Commission for Racial Equality, 2002. Available from: http://83.137.212.42/sitearchive/cre/downloads/duty_fehe.pdf

Providers should make sure that race equality is a central part of their organisation. The specific duties There are specific duties designed to help public bodies and authorities in meeting the requirements of the Duty. These are: 1. Produce a race equality policy 2. Analyse and act upon monitoring data 3. Conduct impact assessments (reviews) 4. Publish all this information as appropriate. These areas will be looked at in more detail in subsequent documents, but for the time being it is useful to look at how they relate to the Duty, as shown in the following flow chart:

Race Equality Duty

> Conducting impact assessments (reviewing policies etc)

> Analysing and acting upon monitoring data

Producing and following a race equality policy and action plan

Publishing the policy, results of monitoring and impact assessment These specific duties can be approached as a series of steps for colleges to take in order to meet the Duty. The specific duties are not an end in themselves, but rather a common sense way of working towards achieving the Duty and to help identify how change can be implemented. Examples of working towards the Duty include: • using monitoring data to identify and address gaps in representation, including: • consideration of what the data indicates • how to address particular issues through target-setting, positive action and/or impact assessment. • undertaking impact assessments to ensure that policies do not discriminate and help promote equality.

Outcome-focused

College responsibilities in relation to the Duty

The Duty is focused on outcomes rather than process. In other words, the goals and milestones that providers can work towards rather than how to achieve them. The importance of this focus has been emphasised by the Equality and Human Rights Commission, and is also aligned to the forthcoming changes to the Ofsted inspection framework. It is therefore important that providers consider how their working practices are helping to promote race equality.

Colleges are subject to the general and specific duties. The ultimate legal responsibility for compliance with the Duty rests with a college’s governing body or equivalent.

In order for colleges to adopt an outcome-focused approach, it is important to answer the following questions: • What are the issues and how is the college going to address them? • How will the college know when aims have been achieved? It is important that colleges consider these two questions when working towards the Duty, as they will help ensure that any activities are geared towards positive change.

It is important that providers consider how their working practices are helping to promote race equality. 6

If a college cannot show that it is meeting the Duty it can be challenged by way of judicial review, either by the Equality and Human Rights Commission (the Commission) or individuals with an interest in the matter. The Commission also has powers to start a formal investigation into a college’s actions in relation to the Duty. If discrimination is found within a provider organisation, the Commission can serve a non-discrimination notice. Similarly, non-compliance with the specific duties can result in enforcement action by the Commission. In addition to the above responsibilities under the Duty, colleges should also consider issues of vicarious liability and burden of proof in relation to race equality, and look at ways in which meeting the Duty will help guard against these legal challenges.

Equality Bill update: Under the forthcoming Equality Bill, employment tribunals and courts will be able to recommend changes to an organisation’s policies and practices. Such recommendations will go beyond the individual case itself, and will aim to ensure that any discriminatory practice within an organisation is eradicated. The Bill will also allow for group actions brought by trade unions and other representative bodies.

What does the Duty mean for other providers? Work based learning and third sector providers are currently subject to the Duty when they have a funding arrangement with a public authority or body that is directly subject to the Duty. The criteria that these providers are expected to meet will be determined by the funding body and articulated in the contractual relationship. For example, the funding body might want to include a contractual agreement that the provider will monitor which ethnic groups are accessing particular courses or achieving particular grades. As a result of this arrangement, the funding body could be subject to compliance action or legal challenge if the provider does not meet the criteria that has been agreed. Whilst these booklets have primarily been written for colleges, they also contain good practice that can be used by other further education providers. Specific guidance tailored for these providers will be produced in the future.

Why is the Race Equality Duty relevant to further education colleges? All providers should consider how proactive race equality and general equalities measures can enhance the overall organisational efficiency. A proactive approach, as opposed to a basic and reactive anti-discrimination model, can assist providers in realising the potential of staff and learners for the benefit of the organisation. This is explained under the Learning and Skills Improvement Service’s Diversity Competencies2 as a transition from equality to diversity, which in turn can lead to corporate benefits. Diversity is embedded within corporate goals and expressed in a proactive manner, leading to sustainable equality and diversity excellence and a diverse, inclusive workforce. These findings reinforce research undertaken by the Network for Black Professionals, which looked at the attrition rate of black and minority ethnic managers in colleges3. A series of interviews with black and minority ethnic managers who had recently left the college sector found that, whilst most participants had enjoyed being employed within the sector, a number of negative experiences were also highlighted. These included the following: • a strong level of horizontal and vertical segregation • a feeling of constantly having to ‘prove’ themselves, and that their contributions were under close scrutiny • being passed over for promotion • being thought of as suitable for operational rather than strategic-level tasks.

http://www.centreforexcellence.org.uk/UsersDoc/EqualityDiversityCompetencies_May08.pdf. Source: Attrition rate of Black and Minority Ethnic Managers in the Further Education Colleges Sector of England, Network for Black Professionals – http://www.nbm.org.uk/files/file_manager/21/Factsheet4.pdf 2 3

Further benefits of implementing the Race Equality Duty and specific duties are outlined below:

The ‘succession planning challenge’ Recent research by the Learning and Skills Improvement Service (LSIS) emphasised the growing ‘succession challenge’ affecting the sector, within which the issues arising from an ageing further education workforce were not being addressed through the enhancement of opportunities for black and minority ethnic staff. When using the benchmark provided in the report of the Commission for Black Staff in Further Education, the research found that little had changed since the Commission reported in 2002. http://www.centreforexcellence. org.uk/UsersDoc/FERacialEquali tyFullReport.pdf

The local authority dimension The forthcoming shift in funding from the Learning and Skills Council (LSC) to local authorities could potentially reinforce the need for colleges to follow robust and outcomefocused equalities strategies

National reputation Presenting positive activities and progress in equality matters within communication activities can help enhance a college’s reputation, presenting it as an employer able to meet the needs of an increasingly diverse learner profile.

The Workforce Strategy clearly prioritises the need to ‘ensure that equality and diversity is at the heart of strategy, policymaking, planning and training’. This priority is embedded in all of the priorities and subsequent themes.

Ofsted inspections Forthcoming changes in the inspection framework will mean that equality of opportunity will be more clearly linked to leadership and management, and will be a limiting rather than contributory grade.

The reasons for a proactive approach to race equality

Community cohesion There is a natural link between the third strand of the Duty (the need to promote good relations between people of different racial groups) and community cohesion. For example, promoting greater understanding between different cultures in a community setting. Providers should consider how any activities in the area of community cohesion can also enhance efforts under the third strand of the Duty.

The Workforce Strategy for the Further Education Sector in England 2007-2012

Staff development strategies All providers who receive LSC funding for learning provision are subject to the reforms regarding the training, qualifications and development of teachers, tutors, trainers and instructors. As part of their staff development strategy, providers should ensure they are able to provide appropriate training and development for all current and prospective staff of diverse backgrounds.

Sustainable procurement Ensuring that the college’s supply chain promotes equality and is able to address the underrepresentation of black and minority ethnic organisations, will have many benefits for colleges and the wider community. As the forthcoming Equality Bill will include changes to procurement requirements it is worth considering how the current Duty can help.

Re/up-skilling the workforce and self-regulation matters Integrating the general and specific duties within provider functions and practice can help with self-improvement and also allow for innovative approaches that will benefit the workforce, employers, learners and providers themselves.

...a college’s single equality scheme can cover different equality areas, but can also acknowledge and show how it will deal with issues in particular equalities areas. The link with other equalities areas – what about single equality? At the time of writing similar legal requirements exist for equality in disability and gender. The Equality and Human Rights Commission stresses that the three equality duties are similar in spirit as they all place the onus on public authorities to be proactive in tackling discrimination and promoting equality4. As the Race Equality Duty has been in place since 2002, it provides a natural starting point for adopting a proactive approach to equalities. It is worth considering how this can also help promote other equalities approaches in addition to race equality. For example, monitoring exercises can help colleges to interrogate data in relation to discrimination on the grounds of more than one equality area, known as multiple discrimination, to ascertain staff and learners’ experiences in relation to race, gender, disability, etc. This will help to equip colleges in meeting the requirements of forthcoming changes in equalities legislation, where the main equality areas of race, gender, gender identity, disability, religion and belief, sexual orientation and age, will come under one general and proactive equality duty.

What do colleges need to do? As outlined above, the Race Equality Duty acts as an objective that can help enhance colleges’ efforts in a range of different areas both internally and externally, from meeting the diverse requirements of learners and staff to working towards community cohesion. For this to have an impact it is important that providers use a staggered approach to race equality implementation. There are three main areas to consider which can be thought of as the PIP mnemonic – Plan, Implement, Progress. This guidance concentrates on general areas under the ‘plan’ heading, which should be seen as basic elements for colleges to consider when meeting the Duty. Subsequent guidance will also cover the implement and progress headings.

Plan Formulating a practical and robust policy for race and other equality areas is an essential function for any effective organisation, particularly in meeting its vision and mission and in delivering diverse requirements.

The recommended approach for colleges is to look at race equality and other equality areas within the general framework of a single equality approach. For example, a college’s single equality scheme can cover different equality areas, but can also acknowledge and show how it will deal with issues in particular equalities areas. A similar approach can be used in relation to equality impact assessments. This is very different to a ‘one size fits all’ methodology, but rather helps ensure an informed and combined outcome-focused approach in the main areas of implementation. By taking this approach colleges can better understand equalities intersections and undertake a more synchronised approach to implementation. 4 Equality and Human Rights Commission http://edit.equalityhumanrights.com/en/forbusinessesandorganisation/publicauthorities/pages/whatdopublicauthoritieshavetodo.aspx

Section Two:

What are the characteristics of a well-performing college in terms of race equality? The Commission for Black Staff in Further Education outlined a framework of characteristics that colleges should use when promoting race equality for staff. This framework has been updated to include more recent developments, such as the single equality scheme, and is provided over the following pages. Colleges should compare the characteristics against their own performance on race equality. Subsequent guidance will assume that these characteristics have been considered as part of the collegeâ&#x20AC;&#x2122;s implementation approaches.

Framework for promoting race equality in colleges (abridged and adapted from the Commission for Black Staff in Further Education Good Practice Guides, 2002) Infrastructure Leadership Making a visible commitment to the equalities agenda is integral to making progress with the equalities policy or scheme. This can be implemented in terms of representation and action, for example, a member of senior management makes a public statement about their commitment to equality issues and ensuring that there are adequate resources for supporting activities.

Equality and diversity group A representative equality and diversity group is an essential part of the planning, implementation and progress approach to equalities. Whilst some colleges may not feel able to form and maintain such a group, they should look at ways of coordinating similar equality and diversity work that will achieve similar aims. If an equality and diversity group is established, then some thought should be given to the following considerations: Size: the size of the college will determine the size of the equality and diversity group. For example, a smaller organisation will be likely to have a proportionately smaller group. Representation: depending on the size and nature of the provider the group should include representation from the human resources and learner services departments, teaching, trade unions and studentsâ&#x20AC;&#x2122; unions, senior management and communications. Role: the group should be involved in articulating the vision for equality and diversity within the organisation and make recommendations for activity to the governing body or equivalent. It should help to co-ordinate activity such as impact assessment or monitoring activities and help with promoting equalities work. Final approval and sign-off will be agreed with the governing body or equivalent. For this reason, the group should have a clear reporting line to senior levels within the college. The remainder of this and subsequent guidance will refer to equality and diversity groups.

Knowledge base Contextualising race equality In order for race equality work to feature as an integral part of a collegeâ&#x20AC;&#x2122;s activities it is important to consider current race issues in the local environment. This may include the learner profile, local communities served by the college or the local historical and demographic context. The college should also consider how race equality is linked to its mission and strategy and how the organisational culture can enhance or detract from race equality work.

Single equality context The single equality context can help to develop a better understanding of the issues affecting staff in relation to more than one equality area. Whilst the single equality context does bring some benefits, care needs to be taken to avoid adopting a ‘one size fits all’ approach. The most value will be gained by developing an enhanced level of understanding between and within each equality area. In order to implement a single equality approach effectively, colleges should ensure the following: • Processes such as monitoring and impact assessment focus on single equality. • The results of these assessments are analysed in relation to the specific equality area in the first instance, for example, as a matter of race equality. • The college is able to look at and address any issues related to instances where different equality strands intersect, for example, an issue related to a female member of staff who is disabled.

Action-planning Establishing outcomes Setting outcomes is an effective way for colleges to focus their priorities in relation to race equality. It is important that the links between activities and outcomes are included in documents such as action plans, and that these are linked to related matters such as the college’s reputation and staff development.

Processes Policy The college should ensure that the race equality policy, single equality scheme and action plan are understood, owned and implemented by all staff and learners.

By consulting with and involving those people who are likely to be affected by its policies and practices, the college can help to increase understanding and buy-in for their activities.

Mainstreaming Mainstreaming of equalities is about integrating an equality perspective into everyday functions and practice. This is an effective way of ensuring that equalities are embedded into the organisation and can help colleges to address other areas, such as self-regulation requirements. To achieve successful mainstreaming, colleges should implement tools and techniques in the following three areas: â&#x20AC;˘ Analytical tools and techniques Used to generate data and information to inform policy decisions, and also for evaluation (for example monitoring and impact assessments). â&#x20AC;˘ Educational tools and techniques Used for raising awareness and transferring knowledge, and also for reflective training interventions and internal guidance materials. â&#x20AC;˘ Tools and techniques to facilitate consultation and participation Encourages input from staff and learners who will be affected by the policies, to help inform and shape the policy and its implementation (for example, consulting with an equality and diversity group)

Ethnic monitoring Monitoring data can provide a useful evidence base to identify any gaps in representation or equitable treatment.

Target setting Following analysis of the monitoring data, setting targets can help providers to focus any future action on addressing any of the findings, such as gaps in representation or instances of inequality.

Positive action Positive action is a legal mechanism that can help colleges to meet any equality targets.

Marketing and communications The college should ensure that it actively presents a positive attitude towards race equality and raises awareness of their equality policy and scheme. This will help staff and learners to understand the importance of race equality within the college community and enhance the collegeâ&#x20AC;&#x2122;s reputation.

Consultation and involvement By consulting with and involving those people who are likely to be affected by its policies and practices, the college can help to increase understanding and buy-in for their activities. Consultation is also an important part of the impact assessment process.

CASE STUDY: Subject: Working with the Community Advisory Group Organisation: West Thames College Link: http://www.lluk.org/raceequality.htm

Impact assessment The most effective way for colleges to guard against institutional racism is to take a systematic approach to reviewing policies. This will ensure that they are proactive in promoting equality and do not discriminate.

Key areas Dealing with discrimination Colleges should have clear processes in place to deal with breaches of their race equality policy or single equality scheme, whether made by staff, learners, contractors or visitors.

Recruitment and progression The collegeâ&#x20AC;&#x2122;s policy for race equality should provide a clear statement of its commitment to promoting a diverse and inclusive culture. This in turn can help to attract job applicants from a more diverse talent pool. Reflective training in relation to race equality issues can assist in staff retention by helping to ensure that everyone within the college community is aware of their rights and responsibilities, and feels empowered and supported by this. Furthermore, continuing professional development training is also an important consideration for the career progression of staff.

CASE STUDY:

Subject: Multi-level Equality and Diversity Training Organisation: Royal Forest of Dean College Link: http://www.lluk.org/raceequality.htm

Subject: Embedding Race Equality Principles into Recruitment Literature Organisation: West Thames College Link: http://www.lluk.org/raceequality.htm

Procurement Under current vicarious liability provisions, colleges are legally liable for any acts carried out by a contractor on its behalf. In order to protect their organisation from being liable for acts of discrimination carried out by a contractor, colleges should implement sustainable procurement processes that address equality matters.

Reviewing work to date and establishing priorities for the future Reviewing progress Progress is reviewed and future priorities established. Reports are submitted to a senior level by the equality and diversity group.

Conclusion The Duty to promote race equality will be a key feature of the forthcoming Equality Bill. With this in mind, colleges are advised to continue and enhance their existing efforts on race equality issues in the workforce and to integrate this into a single equality context over a period of time. To implement this, it is important that the characteristics in the preceding framework are considered. The following action points are suggested.

Governing bodies and corporations: • are fully aware of their legal responsibilities under the Race Equality Duty • show visible commitment to promoting race equality (for example, by helping to shape the strategic direction of race equality work or allocating appropriate resources for race equality work) • include the commitment to race equality within the college brand and messaging • review and take forward action in response to monitoring and impact assessment exercises from the college’s equality and diversity group.

• embed race equality in important everyday activities, such as procurement.

Equality and diversity group: • provides a co-ordinating function for promoting race equality and other equality strands at the college • identifies key internal and external messages • reports the results of monitoring and impact assessment exercises to senior management and the governing body or equivalent.

Human resources professionals: • ensure that processes such as recruitment and selection, career development, complaints and grievances are reviewed with equality impact assessments and consider race equality issues • help the rollout of an effective model of staff training on race equality and other equality areas to raise awareness of employee rights and responsibilities • undertake consultation and engagement with staff to help conduct equalities impact assessments.

Senior management teams:

Staff:

• adopt an outcome-based approach to promoting race equality

• are aware of how race equality relates to the college environment and their particular role and are able to promote race equality themselves

• ensure the allocation of adequate resources for work on race equality • make it clear that discrimination will not be tolerated at the college

• contribute to areas of implementation such as monitoring and impact assessment exercises.

• promote and support the work of the college’s equality and diversity group RW10/09/3570/200910.037

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