Is this legal? Barts Health NHS recruiting for a director of Operations who identifies as female

[apintortwo]

Could someone explain the legal aspects of this in relation to discrimination legislation?

uk.jooble.org/jdp/8593368761237886898/Director-of-Operations-%7C-Barts-Health-NHS-Trust-London?utm_campaign=google_jobs_apply&utm_source=google_jobs_apply&utm_medium=organic

Apologies for the DM article below

www.dailymail.co.uk/health/article-11122945/Fury-sexist-NHS-job-ad-says-preferably-identifies-woman.html

They want a woman, their language is just crap - as they knew there would be a pile on if they said "a woman". It's been explained they want to level out their senior board positions by employing a woman.

Also Barts are one of the trusts about to get a lot of sexual violence funding (via the London violence reduction scheme - it now includes sexual violence and trauma funding seemingly) - it makes sense they have a more diverse board in terms of sex for this as well as diversity reasons.

Not sure this particular expression of gender critical belief has been set in a legal judgment, so it may not be possible to legally challenge it

Well, they'd have to refuse to consider your application first. Presumably you'd hit the crunch when you refused to tick an "identify as female" box.

If they refused to consider the application because you refused to say you "identified as female", then it would be clear direct discrimination on belief, because they would have considered another woman who did not refuse to "identify as female". Requiring you to "identify as female" to get a job is a belief test - such things may be permitted in some circumstances, but much more limited than the sex exemptions, and almost certainly not relevant to this job.

Also, if they refused an application from a transman, at least without a GRC, whether or not they "identified as female" that would be discrimination on the basis of gender reassignment. If the transman didn't "identify as female" it would be indirectly discriminating on the basis of gender reassignment, as they would have considered (genderologist) women who do "identify as female".

If the transman had a GRC, then it's above my pay grade.

It's been explained they want to level out their senior board positions by employing a woman.

But they'd accept a man.

I read it as they are looking for a biological woman or someone who identifies as a woman as all their senior staff ( and it is a senior job) are pale, male and stale.

The wording is confusing

'Well, they'd have to refuse to consider your application first' - it didn't stop the Men and Boys Coalition charity from complaining to the Mail, or the Mail from publishing it.

From the article:

'Its chief executive, Dan Bell, told MailOnline: 'This advert is implying in a very clear and unsubtle way that men should not bother to apply, and if they do, they are unlikely anyway to be successful.
'This is illegal and discriminatory against male applicants as set out in Government Guidance and the Equality Act.''

I'm pretty sure what he's complaining about will be also applicable to GC women.

Ah, but he'll have special feelz not available to the other men, so it will be all very inclusive and diverse.

If you look at Bart’s Exec Board: www.bartshealth.nhs.uk/executive-directors
It is comprised of 8 white men, 1 white woman, 1 man from an ethnic minority. This is incredibly unrepresentative of the area they serve.

It’s hardly surprising that they’re trying to encourage applicants in areas where they are lacking, particularly as there is plenty of evidence that exec teams with a mix of backgrounds and viewpoints perform better.

They have not said that only women or people from an ethnic minority could apply.

What a tangled web we weave

It is odd though because the NHS say diversity monitoring forms are not viewed at interview stage and not used to select candidates...

So, that's going to throw up some interesting issues. How do they know someone is a woman if they aren't looking at the form where the woman would state she is indeed a woman?

Director of operations is most definitely not a pointless role, it's a genuine and very necessary role in a hospital (it may have slightly different names in different Trusts), and in this case reports directly to the a chief exec.

It's likely to be band 8d or 9, the highest paid bands under the NHS agenda for change pays scales, plus Higher cost area allowance. The role is essentially running the day to day operations of the hospital. What do you think would be a fair wage for it? You're not going to get anyone decent applying for it if you pay, say, £40,000. The director of operations in many private companies is likely to be paid a lot more than that.

In job advert context 'identifies as a woman' means women and trans-women. It isn't excluding women, it is just using woke language.

I feel like it's excluding men, it's excluding women, it's even excluding non-binary, and it wants someone who ''identifies'' as a woman. Very odd

to be precise it doesnt say that they want to recruit someone who identifies as female, but they are interested in receiving applications from …..

its not the first time Ive seen an advert which has said they would be interested in receiving applications from a particular group.

Its chief executive, Dan Bell, told MailOnline: 'This advert is implying in a very clear and unsubtle way that men should not bother to apply, and if they do, they are unlikely anyway to be successful. 'This is illegal and discriminatory against male applicants as set out in Government Guidance and the Equality Act

While I don't agree with that, I think that advert does imply that Man A, no GRC but claims to identify as a woman, would be appointed over Man B, no GRC, does not identify as a woman. And that is potentially discriminatory because identifying as a woman is not a protected characteristic.

Jesus, that’s awful.

IF they had a goal of increasing the prevalence of transgender women in the workforce for diversity then they MAY I suppose be able to state that in the same way as they have referred to welcoming applications from black or ethnic minority people.

I SUSPECT they want a “woman” but are down the TWAW rabbit hole hence this clumsy wording. They have also not given any information as to why it is an occupational requirement for someone with a specific protected characteristic to be appointed into the role.

IANAL, but I have worked in recruitment. I don't think that's illegal at all. They say they are "interested in receiving applications" from people who identify as female. If called out on it, they will simply say that "female identifiers" are under-represented at this level, and they get significantly fewer applications from "female identifiers". They'll say they need to redress the balance. All this is probably true. Therefore they are simply encouraging "female identifiers" to apply. Not illegal at all. There is no implication that "male identifiers" will be at a disadvantage in the process.

What a "female identifier" actually is, of course, is another matter. And would I work there? No. Life is short.

I could identity as female for the purpose of this job, no problem.

its not the first time Ive seen an advert which has said they would be interested in receiving applications from a particular group

This shouldn't be allowed, let alone in the public sector. Whatever group it is.

And would I work there? No. Life is short.

This will impact a whole hospital - staff and patients

This is permitted if it is to further the aim of increasing under represented groups in the workforce

Yes - my organisation is 95% women but none of the work we do is sex specific. , to improve our diversity we would need to encourage applications from men

This is permitted if it is to further the aim of increasing under represented groups in the workforce

It should be very transparent then what 'under represented' means in each instance, in relation to what specific cohort/population group and why is it relevant for each job, surely?

Wouldn't that just mean anyone at all.

Anyone can identify as a woman. They don't have to mean it.

Also, if they refused an application from a transman, at least without a GRC, whether or not they "identified as female" that would be discrimination on the basis of gender reassignment. If the transman didn't "identify as female" it would be indirectly discriminating on the basis of gender reassignment, as they would have considered (genderologist) women who do "identify as female"

Good point.

I think legally it's quite complex. It is legally OK to give preference to one protected characteristic on the basis of eg sex, religion etc.

But when you say "identifies as female" you're not doing that. You can't say you're improving representation of trans people, because you're excluding trans men. Neither can you say you're improving representation of people of the female sex , because you're including people whose sex is male. So the legality seems dodgy to me. IANAL, of course.

(Legally, I think anything that isn't a protected characteristic is fine - you could legally say you wanted people to be Star Wars fans, believe in astrology etc, unless it could be shown that you were indirectly discriminating against people with certain protected characteristics.)

As for the being particularly interested in applications from people who identify as female, I am pretty sure they aren't saying they want a trans woman. I think they want actual women to apply and either are scared of the reaction if the say just female or women, or they think or have been told that "identify as female" is the wording they have to use nowadays.