The Equality Act 2010: The Law Of Unintended Consequences

The Equality Act 2010: The Law Of Unintended Consequences

Ahead of the 'What Can The Music Industry Learn From BECTU's Ethnicity Engagement?' Conference'* on Wednesday July 8 2015, conference panellist and BECTU Equalities officer Janice Turner offers a supplementary paper providing background to the Equality Act 2010.

It seems bizarre that a new law intended to improve equality and diversity in Britain should have the opposite effect, but in my view that is precisely what has happened with regard to race equality in employment in the creative industries.

Since the Equality Act was brought in, employment of black, Asian and minority ethnic (BAME)** workers has plummeted. In addition, it has been widely reported that about half of the entire black community's youth under 24 is unemployed, while at the same time a pernicious view took hold over the last few years that race equality was no longer an issue.

Prior to 2010 the key legislation governing race equality in this country was the Race Relations (Amendment) Act 2000. This Act not only outlawed discrimination, but also set out a general duty on public authorities to promote equality of opportunity and good relations between people of different racial groups. They had to have a race equality scheme.

In practice this meant that in performing their functions public authorities should ensure that they consult ethnic minority representatives, take account of the potential impact of policies on ethnic minorities, monitor the actual impact of policies and services and take remedial action when necessary to address any disparities, and monitor their workforce and employment practices to ensure they are fair.

While the private sector was not bound by these duties, many companies took this as best practice and adopted policies that went some way along these lines. It was generally acknowledged that more should be done in relation to achieving greater race diversity (italics mine, ed).

However, the move to a single Equality Act changed this. It was argued that rather than view race, gender and disability discrimination as distinct, separate matters, they could all be viewed as matters of human rights: that discrimination against any of these 'protected groups' was a human rights violation. This was justified by a view that each person should not be identified solely as black, female, disabled or gay for example, as every individual has many facets of identity.This was also described by some as the 'holistic approach to equality'.

So the Equality Act 2010 sought to dispense with legislation aimed just at one type of discrimination and brought equality laws together for all the 'protected groups'. The new Act set out a general duty to have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
Advance equality of opportunity between people who share a protected characteristic and those who do not.
Foster good relations between people who share a protected characteristic and those who do not.

Having due regard for advancing equality involves:

Removing or minimising disadvantages suffered by people due to their protected characteristics.
Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

The equality duty covers the nine protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Public authorities also need to have due regard to the need to eliminate unlawful discrimination against someone because of their marriage or civil partnership status.

The general equality duty requires organisations to consider how they could positively contribute to the advancement of equality and good relations between all these groups.

Public authorities were no longer required to consult or produce equality impact assessments of how their policies might affect protected groups, so the BAME community no longer had to be consulted by public authorities and there was no longer any race impact assessment (italics mine, ed).

Each listed authority is now required to prepare and publish one or more objectives that it thinks it needs to achieve to further any of the aims of the general equality duty. This need not cover more than any one protected group.

The new Act was first proposed in 2008. As diversity officer at the media and entertainment union BECTU campaigning for greater race equality and diversity in the creative industries, I began to see a change in the 'prevailing approach' to equality permeating outwards from at least 2009.

The new approach, emphasising equality between nine different groups of people rather than having any commitment or requirements focusing specifically on race, had two particularly damaging unintentional effects.

First, the view spread throughout the film and broadcasting industry that it was no longer correct to focus on race equality. Instead equality initiatives were open to all the protected groups. Mentoring schemes that might have been for BAME professionals were opened up. BECTU's award-winning "Move on Up" diversity initiative, which set up one-to-one meetings between BAME professionals and top industry executives, faced calls for it to be opened up to all protected groups. We had to point out that doing so would mean that the majority of the industry would then be entitled to attend and in all likelihood the BAME professionals would end up at the back of the queue again.

The second effect was the result of being given a choice of which 'protected group' they were going to take some action on. The worst example of this was the British Film Institute's 'three ticks' diversity policy.This had three categories - on screen portrayal, employment off-screen such as the film crew, post-production etc, and improving access to opportunities, i.e. new entrants.

Companies wishing to obtain funding from the BFI had to meet a target of employing more of the protected groups in two of the three categories. Unfortunately the companies were given the choice of employing more women, or more BAME, disabled, LGBT workers or those from a socially disadvantaged background – a definition which included having parents who did not attend university. A company meeting targets in all three categories would be promoted by the BFI as an example to follow. Unfortunately under the BFI's own guidelines the entire film industry could dispense with employing any BAME workers at all and still be held up as a shining example.

Given that the latest data on film industry BAME employment shows that it has already halved, down to 5.3% in film production and 3.4% in distribution, it does not actually have far to go to do that.

Despite the unions having pointed out this anomaly to the BFI, they chose not to amend it.

Impact

So the available data shows that among companies funded by the Arts Council of England there was approximately a 16% decline in BAME employment between 2009 and 2012; in television it dropped by 31% and in the film industry it sank 50%. Across the creative industries as a whole, total employment increased by 4,000 and representation of women went from 27% of the workforce up to 36% between 2009 and 2012, and disabled workers' representation was unchanged, but 2,000 BAME workers left the creative industries and their employment level was just 5.4% of the creative industries workforce.

True, there are other factors at play in addition to the Equality Act, in particular the failures of the key funding and regulatory bodies. It was not until 2014 after a major campaign by BECTU and the entertainment unions that the BFI and the Arts Council of England began to take their responsibilities seriously in this regard and announced they would henceforth require all recipients of public money to send in equality monitoring data which the funders will publish. Ofcom, the regulator that awards broadcasting licences, privately decided in 2005 that it no longer wished to play an active role promoting equality among their licence holders and stopped publishing the broadcasters' equality monitoring data, leaving equality to the broadcasters themselves to manage.Consequently there was little pressure on the employers to raise their game.

At government level some ministers' perception of the Equality Act appeared quite similar to that of the creative industries - since 2010 the government has had no race equality strategy to speak of, merely a collection of disparate initiatives, and faced with calls to address the shockingly high levels of black youth unemployment, which is utterly destructive to that community's future, declined to take any targeted action.

The Equality Act should never have resulted in some protected groups gaining at the expense of other groups, but in the film and broadcasting industries this appears to have been the effect.

This country has not yet made enough progress towards becoming a properly integrated society to be able to maintain that progress without a specific focus on race equality. Without that legislative focus the BAME workforce has lost out: over the last seven years progress on race equality has gone backwards. The record of film, broadcasting and the arts tells me that there needs to be better legislative focus on race equality and that the Equality Act should be amended to achieve this.

06/07/2015
Published at http://bit.ly/EquAct

** RE:IMI & BBM/BMC use the African, Asian & Ethnic Minority (AAEM) terminology

* 'What Can The Music Industry Learn From BECTU's Ethnicity Engagement?' Conference

Organised by BBM/BMC (BritishBlackMusic.com/Black Music Congress) and RE:IMI (Race Equality: In Music Industry) with support from University Of Westminster Students Union, BECTU, BASCA & MU

Panellists: Janice Turner (BECTU Equalities officer), Vick Bain (BASCA CEO), Alex Mann (MU London regional officer), Rachel Akiboye (Creative Access marketing); chair: Kwaku (BBM/BMC founder)

Preceded by screening of a few short documentaries on the state of British black music.

The conference is aimed at representatives of music industry organisations, music and media industryites, and anyone with an interest in diversity issues particularly addressing ethnicity and 'race'. The primary aim is to find out what good practice has been taking place and what we can adapt or take forward in order to improve diversity and ethnicity/'race' engagement within the music industry.

When: Wednesday July 8, 6-9pm

Where: Room G.03 Little Titchfield Campus, University of Westminster, 4-12 Little Titchfield Street, London W1W 7BY (Oxford Circus tube)

Cost: Free, but need to pre-book: http://bit.ly/ethnicityconfab

Twitter hashtag: #BBMMEthnic

BritishBlackMusic.com/Black Music Congress
editor@BritishBlackMusic.com
P O Box 14092, London NW10 1WL