Work EDI policy - help!

No one is refusing to collect data. On the contrary, HR processes promotions and pay increase and inputs them to the HR system where we already have SEX recorded.

And where are you recording sex data for job applicants? You do realise that the Equality Act covers recruitment too, not just onboarded employees?

Voluntary monitoring data would be useless.

You are quite out of step with most thinking on this. Equalities monitoring is seen as important. It's how targets for inclusion are measured. It would be headline news if a large company declared that it would no longer collect voluntary monitoring data as it is "useless".

We have all the information we need to monitor sex discrimination

Maybe you do. I've got no idea who you are or what your company's policies are. My comments were were about the proposed policy set out in the OP.

The whole point of equalities monitoring is to identify situations where marginalised groups are under-recruited, under-promoted, subject to detriment etc so that this can be rectified. Women are a marginalised group. Refusing to collect data on the experience of that group means that issues cannot be identified and rectified.

We use HR and payroll system data to do this. Voluntary monitoring data would be useless and quite high risk as we would only have three quarters of the population covered at best.

No one is refusing to collect data. On the contrary, HR processes promotions and pay increase and inputs them to the HR system where we already have SEX recorded. I can't see that getting any legs as a legal case based on a refusal to collect the data we have collected!

You are repeating hypothetical nonsense.

We monitor sex equality for legal requirements using payroll data. I conduct equal pay audits with payroll data.

That's wonderful. I hope that many more companies follow your example.

I expect they do, it is a legal requirement after all.

But why do we need to ask for it again?

You need to either combine the sex data from payroll with the other data gathered for equalities monitoring data, or, in situations where this is not possible (because the other data is anonymous, or it relates to prospective employees for whom payroll data is not available), you need to ask for it again. And again, the main problem is not that organisations are monitoring sex using their payroll data, it is that they are opting out of monitoring sex for equalities purposes at all.

We don't ask for age again, we use the HR/payroll database to assess the age profile of the organisation, not voluntary partial anonymous survey data. Are we indirectly discriminating against older people by not sending out voluntary surveys on age?

If you send out an anonymous workplace survey about, say, the company's future WFH policy, and you include in that an equalities monitoring form that does not have a question on age, then yes, you are risking an indirect discrimination claim.

What is this effect that is disproportionate? You seem certain of the legal risk so what exactly is the effect?

The whole point of equalities monitoring is to identify situations where marginalised groups are under-recruited, under-promoted, subject to detriment etc so that this can be rectified. Women are a marginalised group. Refusing to collect data on the experience of that group means that issues cannot be identified and rectified.

"And how is a process of counting "genders" which is completely voluntary and anonymous proof that an organisation is not monitoring sex discrimination when every organisation already mandatorily counts how many males and females they employ and can tell you at a moment's notice?"

It's not. They can collect as much gender data as they want. The proof that they are not monitoring sex discrimination is if, in terms of equalities monitoring, they are not treating sex data in the same way as the other data sets.

And how is a process of counting "genders" which is completely voluntary and anonymous proof that an organisation is not monitoring sex discrimination when every organisation already mandatorily counts how many males and females they employ and can tell you at a moment's notice?

If you weren't so quick to patronise, you might have noticed the point I made. In situations where anonymous monitoring data is gathered (such as staff surveys), sex will be missing from the data set.

But why do we need to ask for it again? We don't ask for age again, we use the HR/payroll database to assess the age profile of the organisation, not voluntary partial anonymous survey data. Are we indirectly discriminating against older people by not sending out voluntary surveys on age?

Please tell me what the indirect discrimination claim is?

To repeat my previous post, a policy of not monitoring sex discrimination will have a disproportionate affect on women, who are generally the beneficiaries of this kind of monitoring

What is this effect that is disproportionate? You seem certain of the legal risk so what exactly is the effect?

I would just say let's go with protected characteristics, then we are covering the necessary legal aspects and we can add gender on top. Brisk, confident, business like.

We monitor sex equality for legal requirements using payroll data. I conduct equal pay audits with payroll data.

That's wonderful. I hope that many more companies follow your example.

We don't need to match anonymous data with HR records. The clue is in the word anonymous.

If you weren't so quick to patronise, you might have noticed the point I made. In situations where anonymous monitoring data is gathered (such as staff surveys), sex will be missing from the data set.

Please tell me what the indirect discrimination claim is?

To repeat my previous post, a policy of not monitoring sex discrimination will have a disproportionate affect on women, who are generally the beneficiaries of this kind of monitoring.

We monitor sex equality for legal requirements using payroll data. I conduct equal pay audits with payroll data.

Anonymous monitoring data is only ever published at high level roll ups. And then it's only a partial data set as typically a minimum of 25 percent don't respond.

We don't need to match anonymous data with HR records. The clue is in the word anonymous.

Please tell me what the indirect discrimination claim is?

But there are still problems with this approach.

It can't be done when equalities monitoring is done anonymously (such as when employers ask staff to fill in anonymous workplace surveys and including an equalities monitoring form for analysing the results, as the employer wouldn't be able to match the responding employee to the payroll data). And recruitment would need a separate equalities monitoring form which includes sex as a question, because payroll data isn't available until an employee is onboarded, and the employer wouldn't be able to monitor if it is, for example, rejecting all female applicants.

But the key problem is that very very few companies are taking the approach of combining the separate data collections. Instead, they are eliminating sex from equalities monitoring completely. Which is where the indirect discrimination claim would arise.

If they are proposing a policy of not collecting data on sex then they should be aware of the risk of a woman bringing a claim of indirect discrimination on the grounds of sex (as a policy of not monitoring sex discrimination will have a disproportionate affect on women, who are generally the beneficiaries of this kind of monitoring).
Every employer collects data on sex, male or female for payroll. You cannot run a payroll without it.

They don't need to repeat it in a voluntary monitoring exercise.

What exactly is the indirect discrimination associated with not asking people to anonymously provide their sex voluntarily for a second time?

I challenged the wording on a policy and that went back to the lawyers and that was what we got back. My boss said "oh, that's interesting, I didn't know that, we've both learned something" 🤦🏻‍♀️

The terms “sex” and “gender” are categorically not interchangeable in law, whatever the HR person asserted.
That’s why I suggested an external legal opinion. From a - you know - qualified lawyer.

Point out the recent decision in the ONS case to show that gender and sex are not the same category. Which are they planning to collect here? Conflating the two risks inadequate and inaccurate data, and isn't the sign of a company that is really taking equalities monitoring seriously.

If they are proposing a policy of not collecting data on sex then they should be aware of the risk of a woman bringing a claim of indirect discrimination on the grounds of sex (as a policy of not monitoring sex discrimination will have a disproportionate affect on women, who are generally the beneficiaries of this kind of monitoring).

I like @Babdoc s suggestion of asking an external (lawyer / hr etc) to review but then you’d need to be the one choosing the external reviewers.

Yes I can see where you’re coming from with the second point being a factual one so it is An actual error rather than policy. Hmmmm its tricky isn’t it. The other two carry more organisational risk though.

All employers already collect male and female for payroll, it's a mandatory field. You can also tell by looking at people. A third set of information about identity put on a voluntary anonymous monitoring form is overkill. It's certainly not needed for the legal obligations of Equal Pay and Gender Pay gap reports as these both rely on payroll data.

The missing things are a bullying and harassment policy, including sexual harassment and assault (which always should be reported to the police). The other area you mentioned is possibly a social mobility policy.

Why not suggest they run it past a lawyer for advice on how to deal with the fallout from misrepresenting the Equality Act?

Good luck!!

If you do want point 2 raised I would probably ask someone to spell check, grammar check and fact check the whole policy and then take it from there .....

I would also talk loads about how enthusiastic you are about the policy existing, how important equality and diversity are to you, and I would enthusiastically suggest additional things to include - your example about educational background above is a good one - so that you aren’t only raising sex/gender.