Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1999)

Other comments on C111

Observation

Direct Request

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The Committee notes the observations of the Trade Unions Congress (TUC) received on 30 August 2021 and communicated to the Government.

Article 1(1) of the Convention. Discrimination based on sex and disability. Sexual harassment against women workers with disabilities and against lesbian, gay, bisexual and trans (LGBT) workers. The Committee takes note of the observations of the TUC on the results of its survey “Sexual harassment of disabled women in the workplace”, showing that: (1) 7 out of 10 disabled women respondents reported having been sexually harassed at work as compared to 52 per cent of women in general; (2) disabled women experience higher levels of every type of sexually harassing behaviour reflecting the imbalance of power disabled women encounter at work and in wider society; and (3) 54 per cent of disabled women respondents reported having experienced two or more types of sexually harassing behaviours, and 45 per cent three or more types. The Committee also takes note of the observations of the TUC on the research it conducted on sexual harassment at work against LGBT workers, which showed that 68 per cent of the respondents reported being sexually harassed at work and two thirds did not report this harassment to their employer. One in four were prevented from raising the issue by their fear of being “outed” at work. The Government states that it is committed to strengthening the protection against sexual harassment in the workplace by introducing a new proactive duty on employers requiring them to take all reasonable steps to prevent their employees from experiencing sexual harassment; introducing explicit protections for employees from harassment by third parties, for example customers or clients; supporting the Equality and Human Rights Commission to produce a statutory code of practice on this issue, to raise awareness to ensure that employers are clear on their responsibilities, and looking closely at extending the time limit for bringing Equality Act based claims to a tribunal to six months. The Committee requests the Government to provide information on any steps taken to address the concerns raised by the TUC with regard to the higher levels of sexual harassment against workers with disabilities and LGBT workers, and any measures adopted to prevent such harassment in employment and occupation. The Committee requests the Government, in particular, to provide information on the introduction of the proposed new protections on sexual harassment, including the date of their implementation and their impact.

Article 2. Equality of opportunity and treatment for workers with disabilities. The Committee notes with interest the Government’s indication that it published the National Disability Strategy in July 2021, setting out its vision to improve the lives of people with disabilities. According to the strategy, the disability employment gap has narrowed significantly in recent years, from 33.8 percentage points in 2014 to 28.6 percentage points in 2021. This employment gap decreases as the level of qualification increases – down to 15.2 percentage points for people with a degree. The Government acknowledges that despite this progress, too many workers with disabilities still find themselves excluded from the job market. The COVID-19 pandemic has also had a negative impact on their employment situation as workers with disabilities are likely to have experienced a reduction in earnings through redundancy, a reduction in hours or being furloughed. The Committee notes the detailed data provided by the Government on the situation of persons with disabilities in the country, in particular that around one out of five persons with disabilities hold a degree level qualification, compared to a third of non-disabled people and that persons with disabilities are nearly three times more likely not to have any qualifications. The Committee notes that the National Disability Strategy provides for the adoption of a series of measures to improve access to work of workers with disabilities, including: encouraging employers to recruit; retain and promote employees with disabilities and create inclusive workplaces; scaling up supported employment services; strengthening rights in the workplace; encouraging flexible working hours and introducing carers leave; and improving access to advice on employment rights. The Government also provides detailed information on a series of programmes established to support the employment of workers with disabilities, including the Work Choice programme, the Work and Health Programme (WHP), the Specialist Employability Support (SES), the Small Employer Offer (SEO), the Access to Work (AtW), the Disability Confident Employer Scheme, and the programme on Special Educational Needs and Disability (SEND). In this regard, the Committee takes note of the TUC’s observations that the COVID-19 pandemic had exacerbated the barriers faced by workers with disabilities. The TUC stresses that many of them have not shared their conditions or impairments with their employers, believing that it would lead to negative consequences and that major difficulties for accessing to reasonable adjustments continued during the pandemic. The Committee notes the Government’s response to the comments of the TUC that though the pandemic did initially reverse the positive trends showing a fall in the disability employment rates and a widening of the disability employment gap between April and December 2020, the disability employment rate returned to its pre-pandemic level in spring 2021 with the disability employment gap also narrowing throughout the first six months of 2021. The Government states that this suggests that, after some initial impacts, there are encouraging signs of recovery and, overall, currently no disproportionate impact on the number and rate of disabled people in employment as a result of the pandemic. Further, the Government states that there is a duty on employers under the Equality Act 2010 to make reasonable adjustments and the Access to Work Scheme can fund support tailored to an individual’s needs for these purposes. Furthermore, the Government states that the new Access to Work Adjustments Passport is being piloted and this will capture in work support needs enabling the passport holder to have informed conversations with a potential employer and will provide greater flexibility for people with disabilities to move between jobs. The Committee requests the Government to provide information on the implementation of the National Disability Strategy in practice to promote the employment of persons with disabilities and their access to various occupations, and its impact on the access of workers with disabilities to employment, including detailed statistical data. It also requests the Government to provide specific information on the type of reasonable accommodation measures adopted in favour of workers with disabilities. The Committee further requests the Government to continue to provide specific information on the impact of the COVID-19 pandemic on the employment of workers with disabilities, and the measures taken to mitigate such impact. The Committee lastly requests the Government to provide information on the outcome of the Access to Work Adjustments Passport pilot.

Equality of opportunity and treatment between men and women. The Committee previously requested the Government to continue to provide information on: (1) the results of the measures adopted to address occupational sex segregation and to promote the participation of women in a wide variety of jobs; and (2) the impact of the measures adopted regarding childcare support, shared parental leave and flexible working arrangements on the participation of women in full-time and part-time employment. On the results obtained to address occupational segregation, the Committee takes note of the indications by the Government that: in January 2021, women represented 34.3 per cent of the boards of the Financial Times Stock Exchange (FTSE) 350 companies, up from 24.5 per cent in October 2017; there were no all-male boards in the FTSE 350, this fell from 8 in 2017; the number of boards with only one women fell from 116 in 2015 to 16; in October 2021, in the FTSE 350, women made up 29.4 per cent of senior leadership roles (defined as the combination of the Executive Committee and their direct reports), up from 24.5 per cent in 2017. The Government also reports that it is continuing its work to increase the number of girls taking STEM subjects at school, with several funding programmes to increase the take-up of these subjects. There was a 31 per cent increase in girls’ entries to STEM A levels in England between 2010 and 2019. Over the same period, the number of women accepted onto full-time STEM undergraduate courses increased by 34 percent. Girls remain under-represented in apprenticeships in STEM, but their representation in STEM apprenticeships is increasing.

On the impact of the shared parental leave scheme, the Government indicates that in the 2019–20 tax year, 13,000 individuals claimed shared parental pay, of which 10,200 were male employees and 2,900 were female employees. The number of individual claims for shared parental leave had quadrupled between the 2014–15 and the 2019–20 tax years. The Committee takes note of the Government’s response to the TUC’s comments that that while the Government is currently evaluating the scheme, the analysis of the data has taken longer than expected because of the need to prioritize immediate support to parents during the COVID-19 pandemic. The Government states that they will publish their findings, alongside the Government’s Response to a 2019 consultation in due course. In this regard, the Committee takes note of the observations of the TUC regretting that the evaluation of the scheme has not been published yet. The TUC also regrets that: (1) the low pay provided for under the scheme (£145.18 per week) makes it unaffordable for many fathers: (2) agency workers and those on zero-hour contracts do not qualify; and (3) parents can only get shared parental leave when mothers give up part of their maternity leave.

On the right to request flexible working, the Government indicates that this right was extended in 2014, through the adoption of the Flexible Working Regulations 2014. The Government stated that a study on the implementation of these regulations will also be published in 2021. As the COVID-19 pandemic shifted the way that individuals and employers think about flexible working arrangements, the Government reconvened the Flexible Working Taskforce to make the most of the lessons learned from this period. Furthermore, the Government notes that offering flexible working in job advertisements increases the number of female applicants by 16 percent. Regarding childcare, the Government refers to the 30 hours free childcare for working parents who earn at least the equivalent of 16 hours per week at the National Minimum Wage and indicates that an estimated 345,700 children benefit from this programme. The Committee takes note of the Government’s response to the TUC’s comments that it published its consultation on making flexible working the default on 23rd September 2021. The consultation exercise ended on 1 December 2021. The proposals seek to increase availability and uptake of flexible working among all employees, while recognizing that flexible working arrangements can particularly benefit certain groups, including working parents.

In addition to this information, the Committee takes note of the details regarding the measures adopted to address gender segregation (including measures to promote women’s and girls’ participation in STEM, and women’s participation in leadership positions), and related to child care and flexible hours that were reported in the National Report of the United Kingdom on the implementation of the Beijing Declaration and Platform for Action (1995). The Committee requests the Government to continue to provide detailed information on its efforts to address occupational sex segregation and to promote the participation of women in a wider variety of jobs. Noting the information provided regarding the measures on childcare support, shared parental leave and flexible working arrangements, the Committee requests the Government to provide information on the impact of these measures: (i) on shared parental leave and the flexible working time arrangements; and (ii) on the participation of women in full-time and part-time employment. It also requests the Government to provide information on any measures taken to address the concerns raised by the TUC regarding the shared parental leave scheme.

Equality of opportunity and treatment irrespective of race, colour or national extraction. Ethnic minorities. The Committee previously requested the Government to provide information on: (1) the results of the Black and Minority Ethnic 2020 Plan and the Equality Objectives for 2016–20 as well as any other topical initiatives; (2) the steps taken to promote equality of opportunity and treatment of ethnic minority groups and combat stereotypes, as well as on the results obtained so far as regard their rate of employment and type of jobs occupied; and (3) the concerns raised by the TUC that the Immigration Act 2016 prohibited undocumented workers from claiming rights at work by fear of being arrested and deported. The Committee takes note of the Government’s indications that the Race Disparity Unit (RDU) collects data on the employment of different ethnic minorities that the Office of National Statics (ONS) publishes quarterly in its Labour Market Status by Ethnic Group. The Committee also takes note of the information provided on the programmes in place to improve the employment of people from ethnic minority backgrounds, including through the National Mentoring Programme, the Plan for Jobs, the Ten Point Plan aiming at the creation of green jobs, and the Flexible Support Fund. The Committee further notes the results of the Parker Review published in March 2021 on the representation of ethnic minorities on the board of 100 FTSE companies, showing an increase in the number of ethnic minorities represented in the boardroom (75 as at November 2020 from 52 in January 2020). The Government is taking action in 20 targeted areas identified from the results of the Race Disparity Audit conducted in 2017 and updated annually. For the year 2020, the ethnic minority employment rate was 67.9 per cent, an increase of 1.7 and 1.8 percentage points from 2019 and 2018, respectively. The ethnic minority unemployment rate is 3.5 points higher than that of white groups. Those with Pakistani and Bangladeshi backgrounds have the lowest employment rate of 57.9 per cent of all ethnic groups, though this is an increase of 0.8 per cent points and 1.9 per cent points from 2019 and 2018, respectively. They are more likely to be in low skilled, low paying occupations than any other group and receive the lowest average hourly pay. Black/African/Caribbean have the highest unemployment rate of 10.5 per cent, 6.5 percentage points higher than that of white groups.

In this regard, the Committee also takes note of the observations of TUC stressing that a significant pay gap exists for both Black and Minority Ethnic workers (BME). The median pay for white people was £12.40 per hour compared with £12.11 for those from a BME background –with significant regional variations, including a 23.8 per cent pay gap among the two groups in London. The COVID-19 pandemic has brought disproportionate difficulties for BME workers. According to TUC, the figures published by the ONS for August 2021 reveal that last year, the unemployment rate for BME workers has risen from 6.1 per cent to 8 per cent (31 per cent increase), that is three times the rate for white workers, which has risen from 3.6 per cent to 4 per cent (an 11 per cent increase). The TUC is also worried as figures show that BME workers are far more likely to be employed on zero-hour contracts than white workers. For instance, BME women are almost twice as likely to be on a zero-hours contract than white men (4.5 per cent compared to 2.5 per cent), and they are almost one and a half times more likely to be on zero-hours contracts compared to white women (3.4 per cent). The Government states in its response to the observations made by the TUC, that the Independent Commission on Race and Ethnic Disparities, in a report in April this year, noted that the pandemic is likely to have a mixed impact on the employment rate and financial stability of ethnic minority groups. The Government states that, historically, employment rates of ethnic minority groups have decreased more than overall employment rates during economic downturns in the UK. It highlights that such a decrease indicates a risk to ethnic minority groups if the economic fallout from the COVID-19 crisis fails to turn into a V-shaped recovery. It also states that zero hours contracts provide important flexibility in the labour market which benefits employers and workers. However, the Government states that it recognizes that some workers on zero hours contracts would like more stability in their working hours and that it is committed to taking forward a key measure to include the right for workers in Great Britain to request a more predictable contract. This means that those who would like more certainty will be able to request a more fixed working pattern from their employer after 26 weeks of service.

The TUC believes that the Government’s plans on adopting a new Nationality and Borders Bill will increase the exploitation of workers with irregular status who would have no legal recourse to claim rights at work (since for example, wages of undocumented workers are considered as the proceed of crimes) and access healthcare. The Committee recalls that under the Convention all migrant workers, including those in an irregular situation, must be protected from discrimination in employment on the basis of the grounds set out in Article 1(1)(a) (2012 General Survey on the fundamental Conventions, paragraph 779).

The Committee requests the Government to continue to provide detailed information on the steps taken to promote equality of opportunity and treatment of ethnic minority groups and combat stereotypes, and the results obtained. It also requests the Government to provide information on the steps taken to reduce the pay gap for BME workers and the disproportionate recourse to zero-hour contracts referred to by the TUC. The Committee also requests the Government to provide information on the impact of COVID-19 on employment rates for ethnic minority groups.

The Committee requests the Government to provide information on the introduction and implementation of the new right to request a more predictable contract, including the number of workers exercising such a right, and the rate at which such requests are granted.

The Committee notes the Government’s comments on the Nationality and Borders Bill. The Committee reiterates its request that the Government provide information on the impact of the Immigration Act 2016 and if adopted, of the Nationality and Borders Bill, on the protection of undocumented migrant workers against discrimination based on race, colour or national extraction.

Racial Equality Strategy 2015–25 for Northern Ireland. The Committee also notes the Northern Ireland Racial Equality Indicators Report: 2014–2019 (Published in 31 March 2021) provided by the Government. This states that: (1) the percentage of minority ethnic school leavers with no qualifications had decreased from 5.8 per cent in 2013–14 to 2.2 per cent in 2018–19; (2) at the 2011 Census, 30.2 per cent of minority ethnic people were in “managerial” or “professional” occupations; compared with 25.8 per cent white people; (3) in 2019, the proportion of respondents reporting they were prejudiced against people from minority ethnic communities had increased significantly since the baseline (2014: 24 per cent, 2018: 20 per cent, 2019: 29 per cent); (4) the number of racist incidents reported has increased from the 2013–14 baseline (976) to 2018–19 (1,124); and (5) in the latest available data (2017–18), only 3 per cent of all public appointment applications were from minority ethnic people. The Committee also notes that the Northern Ireland Racial Equality Strategy (RES) (2015–2025) establishes a framework for government departments (and others) to tackle racial inequalities, to eradicate racism and crime and, along with the Strategy ‘Together: Building a United Community’, to promote good race relations and social cohesion. The strategy has seven aims to address specific areas of concern developed in consultation with minority ethnic representatives. They include: (1) elimination of racial inequality, (2) combating racism and hate crime, (3) equality of service provision, (4) participation, (5) social cohesion, (6) capacity-building, and (7) cultural identity. The Committee requests the Government to continue to provide detailed information on the steps taken to promote equality of opportunity and treatment of ethnic minority groups and combat stereotypes, and the results obtained. It also requests the Government to provide information on the steps taken to increase access of ethnic minorities to public appointments. Further, the Committee requests the Government to continue to provide detailed information on racist incidents, which may impede workers’ ability to access the labour market, and the steps taken to address this.

LGBT Action Plan and Advisory Panel. The Committee takes note of the TUC’s observations indicating that the 2018 LGBT Action Plan was abandoned and that the LGBT Advisory Panel that had been established to support the Government in meeting the goals established in the plan was disbanded in April 2021. The TUC indicates that the Government had announced plans to replace the panel but that these plans have not been set out. The Government in its response to the TUC’s observations states that its priorities remain introducing a ban on conversion therapy, delivering the “Safe to be me” conference in June 2022 and the year of action around that event and digitizing the gender recognition certificate application process. The Committee requests the Government to provide information on the results of the implementation of the 2018 LGBT Action Plan, as well as on the impact of the decision to disband the LGBT Advisory Panel to achieve the goals set out in the plan. The Committee requests the Government to provide information on any new plans adopted or envisaged to address equality and non-discrimination in employment and occupation for LBGT workers.

Article 3(a). Cooperation of workers’ and employers’ organizations. Equality bodies. The Committee had asked the Government to provide information on the involvement and participation of social partners in the work of equality bodies. The Committee takes note of the Government’s indication that the Equality and Human Rights Commission (EHRC) operates independently from the Government and makes its own strategic decisions on how to engage with the social partners as well as their level of participation and engagement on key policy initiatives. The EHRC’s Framework Document, establishes that the Chair and Board members’ appointments will be made by the Minister for Women and Equalities with regard to the Paris Principles, which stress the need for “pluralist representation”, referring among other members of the civil society to representatives of trade unions. The Government further specifies that the EHRC’s Strategic Plan sets out five priority areas to work on, including Priority aim 1 on equal access to labour market and fair treatment at work. On this, the EHCR engages with the trade unions, including the TUC, and also takes on board the expertise of workers in specific areas, such as education and health and social care. It works in close collaboration with trade unions to consult and negotiate in all relevant matters. The Committee takes note of this information.

Awareness-raising and enforcement. The Committee had asked for information on the impact of the withdrawal from the European Union on the application of the Convention. Further to its request, the Committee notes the Government’s indication that the protections provided in the Equality Act 2010, some of which are derived from the legislation of the European Union, will continue to apply.

The Committee has also repeatedly requested the Government to provide information on the administrative and judicial decisions concerning the implementation of the Convention and to provide information on the impact of the removal of the employment tribunals’ power to make wider recommendations. It notes that the Government does not provide information on the number of decisions nor on the trends in relation to discrimination claims and their rates of success. The Government indicates that the tribunals power to make wider recommendations under the Equality Act 2010 created a perception of undue burden on, and unfairness for, businesses and did not serve any useful purpose. The estimated cost of making wider recommendations to employers who did implement a recommendation was about £2,000. The Government states that ensuring changes are instigated by the employer without the need for recommendations means that they are more likely to be committed to and see positive results. Moreover, the tribunals’ recommendations were often that individual or management groups should undertake diversity training, in particular “unconscious bias” training, that have been shown to be of little value. While taking note of these indications, the Committee recalls that public awareness-raising, including on “unconscious bias” is essential to address prejudice and stereotypes regarding the professional abilities and aspirations of certain groups with lead to exclusion and discrimination in society and the labour market (General Survey of 2012, paragraph 865). The Committee once again requests the Government to provide information on any administrative or judicial decisions on discrimination in employment and occupation, as well as information on the number and nature of discrimination claims brought before the employment tribunals and on their outcome. It further requests the Government to provide detailed information on the measures adopted to raise awareness of prejudices and stereotypes regarding the professional abilities of certain groups in the private and the public sectors.