Work EDI policy - help!

[mrsnibblesisahero]

Hi everyone, bit of a slow burn as I'm a bit busy and may not be able to answer straight away to every message, but looking for support. I'm a senior manager, can't really afford to expose myself too much or be too direct, so looking for 'tactful' ways to go back on this.

.....a monitoring system will be introduced to measure the effectiveness of the policy and arrangements. This will involve the routine collection and analysis of information on team members by
gender, marital status, ethnic origin, sexual orientation, and religion/beliefs. Information regarding the number of team members who declare themselves as disabled will also be maintained.

• why gender not sex???

and this:
.... receives less favourable facilities or treatment (either directly or indirectly) in recruitment or employment on grounds of age, disability, gender/gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, or sexual
orientation. These are the protected characteristics as defined in the Equality Act 2010.

• obviously shouldn't have the 'gender/'

and this:
Gender
Women and men are fully and properly represented and rewarded for their contribution at all
levels of the organisation through:
• challenging gender stereotypes
• supporting employees in balancing their life at work and at home
• supporting employees who become pregnant and taking active steps to facilitate their return to work after maternity leave

• why gender not sex?

Thing is - I did already go back once and got the response that gender/sex is interchangeable in law and HR..... I know the former isn't true of course but not sure what to do now in a positive way without marking my card.

Also - thinking - should I fight or should I just let go? I mean really in my industry no worries re toilets or anything. Confident that I can manage any situation by being respectful etc. But language matters, and this pains me, it feels wrong. Any advice that makes it clear am not out to cause trouble and am not a horrific bigot would be amazing.

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.

They've already consulted with an HR consultant.... sigh

The HR consultant has obviously confidently asserted that the terms are inter changeable in law....

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).

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.

@Babdoc

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

Our lawyers, one of the big ones, said the same as the OP has said - it's accepted now that we say gender instead of sex.

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" 🤦🏻‍♀️

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?

@Wildgarlicpesto

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?

If an employer is combining the sex data from payroll with the other equalities monitoring data in order to evaluate the data as a whole, then the policy itself wouldn't be discriminatory.

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.

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?

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.

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.

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?

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?

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.

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.

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.

@VanGoghsDog

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.

Exactly. We have all the information we need to monitor sex discrimination. No partial voluntary surveys needed, they wouldn't be any use.

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.

@VanGoghsDog

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.

Are you referring to the requirement for gender pay gap reporting? There's no compulsion to specifically use payroll data for that. The government guidance on this actually says that companies can use self-reported gender. Are lots of smaller companies reading the guidance, then double checking the legislation and realising it refers to sex? Doubt it.

The OPs company has everyone's sex in their payroll. It is a mandatory field, the payroll won't run without it. Every single employer in the UK is the same.

I have said that the claims made for equality monitoring is overblown. It's not anywhere as useful as you seem to think.

The last few years of ethnicity pay gap analysis I have done underlines this.(there's a consultation going on about making this a legal reporting requirement so we are looking at the limitations)

Ethnicity is actually a core HR field in most HR information systems but it's still voluntary as it's not a necessary field for work purposes. The results of analysis of pay gaps for ethnicity shows the highest paid group of EMPLOYEES REFUSE to provide data. They don't want to be monitored. There's no way around that.

We can report on age as this is also mandatory.

If said nothing about organisations abandoning monitoring because it is useless, I only said voluntary sex data is useless, I can't do an equal pay audit with an anonymous partial data set. It's simply not really as helpful as you think.
How do you set an inclusion target for sexual orientation? If you have a 100 people, 70 fill in the monitoring form, 25 of those prefer not to say their orientation, the rest are a range of options what precisely are you going to do? You only know part of the story. You have no idea who is included and who isn't.
You can't extrapolate exact answers as you have no idea why nearly half haven't told you their sexual orientation.

But yeah, I'm out of touch, despite it being my job and I'm answering someone who cannot explain the discrimination effect in any thing other than vague comments about not having the data on male and female when it's obvious that all employers do have it.

Get back to me when you have spent five years working in equal pay and gender pay gap reporting @Bisquette then I might consider your "advice" worth listening to.

So this is the killer legal argument is it?

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.

So by not using a voluntary partial anonymous monitoring data set in place of the full set of male and female HR data we are discriminating?

Mmm.

Well I'm convinced now, go ahead with that argument OP! If you want to sound ridiculous!

How do you set an inclusion target for sexual orientation? If you have a 100 people, 70 fill in the monitoring form, 25 of those prefer not to say their orientation, the rest are a range of options what precisely are you going to do? You only know part of the story. You have no idea who is included and who isn't.

And that's how you end up with workforces made up of straight white men. Nothing to be done about it! All efforts to address it are futile, might as well not even try!

voluntary sex data is useless, I can't do an equal pay audit with an anonymous partial data set

Can you not think of anything else that voluntary sex data might be used for? Perhaps assessing the impact of a company's Covid response on female staff (which would generally be done by anonymous survey, so the payroll sex data couldn't be used)? Perhaps on seeing how many women are applying for particular vacancies so recruitment campaigns can be targeted?

I'm answering someone who cannot explain the discrimination effect in any thing other than vague comments about not having the data on male and female when it's obvious that all employers do have it.

Sorry, I assumed that you know how indirect discrimination works. Do feel free to Google that.

So by not using a voluntary partial anonymous monitoring data set in place of the full set of male and female HR data we are discriminating?

Not quite - amend to "by not using a voluntary partial anonymous monitoring data set where the full set of male and female HR data that we collect does not allow for the full monitoring of equalities, whether by reason of anonymity or otherwise, we are discriminating" and you've got it.

So come on then, what is the legal claim? You are insisting it's a risk and OP is going to put the risk on the register and yet you have just waffled around the actual impact with words like "full monitoring". Which means what? If a company does not send out an equality monitoring questionnaire asking staff if they are pregnant is that indirect discrimination? Can a pregnant employee make a claim if no equality monitoring surveys are sent?

Your comment about companies full of straight white men is just pathetic.