FCA Diversity consultation

[Nojobforoldmums]

Not sure if anyone has seen this
www.fca.org.uk/publications/consultation-papers/cp21-24-diversity-inclusion-company-boards-executive-committees

References to gender, may or may not be intended to mean sex. Is this on the radar of the usual groups to ensure monitoring sex doesn't get dropped in favour of gender identity?

Apologies for a plop and run thread.

@Ereshkigalangcleg

What other factual information do you think people should be able to change without limit?

I asked this poster that, but just got special pleading in response. Oh the poor trans people being "recategorised" against their will! It truly is the civil rights issue of our time.

There is a point where zero tolerance becomes intolerance.

The FCA are not going to do what you want.

@Ereshkigalangcleg

Neither of them have ever submitted a pay gap report.

And you don't appear to be a legal expert on the Equality Act and the legality and impact of creating a supposed E&D category which doesn't map to it. So there we go.

What is the discrimination claim? As you are all so certain it exists this should be really easy to answer.....

The FCA and gender pay gap reporting do not exist in a vacuum. They are subject to equality legislation, like all other public sector organisations and diversity schemes.

www.gov.uk/guidance/who-needs-to-report-their-gender-pay-gap who do not identify as ‘men’ or ‘women’

It is important for employers to be sensitive to how an employee identifies in terms of their gender. The regulations do not define the terms ‘men’ and ‘women’ and the requirement to report your gender pay gap should not result in employees being singled out and questioned about their gender.

To reduce the risk of singling out and questioning employees about their gender you should:

locate employee’s gender identification using information employees have already provided for HR/payroll, if such records are regularly updated
where this information is not available or may be unreliable, you should establish a method which enables all employees to confirm or update their gender. This can be done by inviting employees to check their recorded gender, and update it if required
in cases where the employee does not self-identify as either gender, an employer may omit the individual from the gender pay gap calculations.

Rebecca actually asked me what I thought about this.

I told her a it is simply not the case that one or even half a percent of high paid people switching is going to shift the median employee up out of the most populous pay grade. It probably isn't clear if you are a solicitor with no access to the data.

in cases where the employee does not self-identify as either gender, an employer may omit the individual from the gender pay gap calculations.

Which is ludicrous, as most people here do not self-identify as either gender. So an employer would be free to omit all of us from their calculations?

If you request that, yes.

Equality law needs to apply to all situations where equality is an issue, this is my general principle. Organisations thinking that they don't need to abide by the key piece of equality legislation are concerning. This is an equality measure, so it should be done in line with the EA 2010, not self ID, as the protected characteristic of female sex only applies to female people and males with GRC. Things like this weaken women's position in law, as bodies like Stonewall know full well.

@Pretaxanger

If you request that, yes.

Hang on, it says "the employer may", suggesting it's at the employer's discretion.

"May" in regulation speak means that it is a possibility.

We are expected to account for differences year to year in the reporting to senior management before publication and updates to staff, and explain by comparison to the prior year population, and I expect most companies would not make a unilateral decision to remove non binary staff, that would be an exec committee decision to make, based on the impact analysis of before and after numbers involved.

If we get an individual request then I expect most companies would accept the employee choice.

@Ereshkigalangcleg

It's a valid question. Do we think just saying what we personally want about stuff should be a general principle in all areas of life? It sounds like the FCA has been thoroughly Stonewalled.

Which brings us back to the start of the thread and how one of their executive directors is the chair of trustees of Stonewall...

The regulations do not define the terms ‘men’ and ‘women’

The Equality Act 2010 does: s212(1)

www.fca.org.uk/publication/discussion/dp21-2.pdf

For those of you who are interested in letting the FCA know your views on their choice of language, have a look at the link. They are looking for feedback on their Discussion Paper on Diversity & Inclusion in the Financial Sector. People cannot provide comment as individual consumers, you don't have to work in the industry

Apologies, that should say people CAN comment as individual consumers

Haven't RTFT so may have already been mentioned but Sheldon Mills (chair of trustees of Stonewall) is a fairly high up bigwig in the FCA...

FCA.org.uk/publication/corporate/annual-report-2020-21-diversity.pdf

I took a look at the FCA diversity report.

Page 22 shows the male female split which is derived from mandatory payroll records (so they hold 100% records).
43% of the Senior Leadership Team are female.

Page 24 they have asked a voluntarily monitoring question on trans identity which 74% answered (fairly typical response rate).

The group that told them that their identity was not the same as at birth was less than 1% so shows on the chart as zero.

The number disappears into the rounding!

This data collection exercise is what you think supports a claim that there's indirect discrimination and non compliance with the Equality Act. A variance between sex and identity so tiny it disappears in the normal rounding in diversity monitoring reporting.

They have a separate gender pay gap page. They state on there that it is based on legal sex because they didn't have employee records of identity at the time, but as the latest diversity report shows any variance is imperceptible in the rounding.

And of course sex data is actually based on the employees own identity documents already anyway irrespective of a GRC or any additional identity data collection.

I do wonder what this thread here is trying to achieve when looked at in this context.

threadreaderapp.com/thread/1421137727429431300.html

Do you think he bothers to read and consider the diversity monitoring that orgs put in the public domain to get some actual perspective on the content of his complaining before he starts?

He demands they correct errors and yet he's made the fundamental error of operating in a vacuum by being driven entirely by his own assumptions.

The tweets he writes are quoted here almost verbatim.

His anger at the prefer not to say and other options fly completely in the face of the call for "third spaces for identity" and the normal privacy people have to not provide information they don't wish to.
I genuinely think that perspective is necessary here. There's situations where the impact is huge, and others like this where it's imperceptible and balance of rights is met.

I'm sure that will get up a few people's noses but the FCA have already considered this and are not just shooting from the hip...

If you can quote me ANY equality solicitor that can point to problems with what I have said, I'm very happy to listen.

So, in other words, we don't know how many identify as transgender but it could be anything up to 26%. We also have no idea how many of the senior leadership team actually are female as opposed to self-identified. But we do know that they are assidious in following Stonewall's dictates.

(yes I know it is unlikely to be 26% but the point is we don't know)

The senior leadership team will know, and are fulfilling their PSED requirements with this report that properly respects the right not to be monitored. That's not a Stonewall bestowed right, it's always been the case that monitoring is voluntary for employees.

You can see who the Executives are online.

Organisations already have 100% data on sex or gender as it's frequently labelled and that data includes those with the PC of gender reassignment.

No company in the country can disaggregate this data on birth sex. We don't ask for it.

Is your expectation that we will go back and audit people? Is there a business requirement for this for every employer?
Which body is going to universally impose this requirement?

Isn't it already possible in the case of occupational exemptions? Why do you think that the EA is structured the way it is, to allow exemptions where necessary but for the majority data privacy takes precedence?

They are not 'fulfilling their PSED requirement with this report'. The PSED is an ongoing duty. I don't understand what you mean about not auditing people? Why would companies not include people in their audits? Of course there is a business requirement to know how many staff you have, what roles they play, how much you pay them, whether this is an effective structure? The equality act also requires your company policies not to discriminate on the bases of protected characteristic (which include sex - that is sex observed at birth) - how can they judge this or prove it without recording sex? The equality act does not address data privacy and you seem to misunderstand what the exemptions are about.

how can they judge this or prove it without recording sex?

We do record their sex. The one they give us on their identity documents. Which may have been changed as a result of having the protected characteristic of gender reassignment.

I know you don't like it but that's how it works.

don't understand what you mean about not auditing people?

It's the logical outcome of the demand that recorded sex should exclude any one with the protected characteristic of gender reassignment. We would have to go through the database person by person and try to discover birth sex somehow? How do you propose that happens? Which body is going to impose it?

We do all ready report head count, cut in lots of ways. That's not an audit.

The equality act also requires your company policies not to discriminate on the bases of protected characteristic (which include sex - that is sex observed at birth) - how can they judge this or prove it without recording sex?

No employer can based on your criteria, that's my point. Using your criteria every company is breaching something, I'm not quite sure what as no one can manage to get beyond a vague assertion.

I asked you yesterday for a concrete example?

Do you think that diversity report by the FCA would cause them to lose a sex discrimination case?

Alan's amazing claims are that it might on his sexnotgender website because they have monitored identity.

Explain how.

It is not 'my criteria'; it is the law. Sex is defined in the equality act. What do yoy mean 'exclude anyone with the protected characteristic of gender reassignment'? Unless they have a GRC they are still legally their sex observed at birth. They then have a separate protected characteristic of gender reassignment (as well as age, race, etc).

You seem to think stonewall law is the same as the actual law.

The equality act does not address data privacy and you seem to misunderstand what the exemptions are about.

The Equality Act does require employees with the protected characteristic of gender reassignment not to be treated differently. In most cases we accept ID provided subject to DBS and right to work requirements, you are suggesting we treat gender reassigned people differently.

Unless they have a GRC they are still legally their sex observed at birth. They then have a separate protected characteristic of gender reassignment

The GRC doesn't apply to employment records.

Employment records don't treat gender reassignment and sex separately. Part of gender reassignment is changing your employment record.

There are occupational requirements which can override this.

It does reach the point here where the dogmatism stops people actually taking in what is being said which is unfortunate.

I've never met anyone from Stonewall or been on any of their training.

I do work with HR data, in gender pay gap, equal pay, monitoring, reporting, board regulatory reporting, and have done for a long time. I read the regulation changes and talk to D&I about what can and can't be done with data and what it does or doesn't mean.
So I'm describing what actually happens.

The focus on identity in the majority of employers is a bit overblown, both by those for and against. I can't see the non binary category getting much traction, we will be reporting that category rounded down to zero for a few years which will be entertaining.

People that have changed their records in payroll/HR and are therefore invisible in the data will carry on doing it and again, mostly are not moving the needle in the rounding based on ONS estimates.

Far more people have no interest in completing monitoring at all.

Those of you intent on unecessary changes that there is no appetite for, and no one will actually do in practice, come across a bit evangelical and authoritarian about it. The Alan Henness type threads are an example of this. Kishwar Faulkner must be rolling her eyes by now.

Most of the time it doesn't matter.

There's EA exceptions for the appropriate reason when it does.

Joint FCA and PRA update on diversity and inclusion

In 2023, the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) consulted in parallel on proposed rules and expectations aimed at improving diversity and inclusion in regulated firms. In light of the broad range of feedback received, expected legislative developments and to avoid additional burdens on firms at this time, the FCA and PRA have no plans to take the work further.

www.fca.org.uk/news/statements/update-fca-enforcement-transparency-proposals