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Time to renew your membership
Unless you have been super efficient and already sent it off already, your IEDP membership fee was due on 1 January 2016. As announced in our November newsletter we are keeping the cost of membership the same again for next year. Our individual associate membership is £110+VAT, with a reduced rate of £55+VAT for students, retired and volunteers. Don't forget there is also our team membership which is excellent value at just £550+VAT for a team of 6 to 30 people working for the same organisation. Full details of membership fees and benefits are on our website here.
IEDP accreditation dates
If you join the IEDP, or are already a member, you can apply for our accreditation programme. The closing date for expressions of interest for the next round of IEDP accreditation is 29 January 2016. Your application would need to be confirmed (and the fee paid) by 12 February and the deadline for the submission of your portfolio would be 31 March. Further details, and dates for each cohort in 2016, can be found on the accreditation page of our website
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Race equality implications of the new Immigration Bill
By Leander Neckles
This is a summary of a briefing originally written by Dr Leander Neckles for the Race Equality Foundation (REF) in September 2015. The IEDP is grateful to Leander and the REF for permission to reproduce it here. The full briefing is available on the members' area of the IEDP website.
It feels like the ink is barely dry on the implementation of the Immigration Act 2014. Immigration Act 2014. The Race Equality Foundation and partners continue to have major, and ongoing, concerns about the implementation of the 2014 Act, the associated healthcare and access to services’ provisions, and a key consultation on whether, and if so how, the Department of Health will extend NHS charging to primary care. Nevertheless, we all now have to get to grips with a new Immigration Bill which may become the Immigration Act 2016. It augments the 2014 Act and exacerbates serious concerns about the direction of the UK’s immigration legislation.
This article briefly overviews the new Bill’s legislative proposals and examines Clause 38, ‘Language requirements for public sector workers’. If implemented, the proposals will exacerbate the damaging impact of the Immigration Act 2014 and the associated healthcare provisions. The proposals are likely to encourage the hostility, racism, discrimination, exploitation and serious human rights breaches too often faced by refugees, asylum seekers and the UK’s Black and Minority Ethnic (BME) communities but do nothing to reduce or address the ongoing and increasing humanitarian refugee and migrant crisis.
A government summary says that the Bill, published on 17 September 2015, will:
- ‘introduce new sanctions on illegal workers and rogue employers’;
- ‘provide better coordination of regulators that enforce workers’ rights’;
- ‘prevent illegal migrants in the UK from accessing housing, driving licences and bank accounts’;
- ‘introduce new measures to make it easier to enforce immigration laws and remove illegal migrants.’
So why is the REF concerned? If the Government’s analysis and prescription were correct then the new Bill would be welcome. However, our assessment is that implementing the Bill’s provisions would:
- extend stop and search like policing measures which have been proven to disproportionately and adversely impact on members of BME communities;
- make landlords wary about letting accommodation to BME tenants for fear of risking fines and up to 5 years’ imprisonment;
- discourage employers from employing BME workers and encourage racism and discrimination by introducing further employment sanctions;
- encourage rogue employers and landlords to exploit vulnerable individuals;
- reduce the likelihood of victims coming forward, leave those individuals with no legal recourse, worsen the situation of those subject to human trafficking and exploitation and create thriving conditions for human slavery;
- make those denied access to housing, driving licences and bank accounts more vulnerable to exploitation and human rights breaches while doing little or nothing to remove those in the UK unlawfully;
- make it more difficult for individuals to appeal and secure justice.
Clause 38
According to the Government, part 7 of the Bill ‘will ensure there is no language barrier to British Citizens accessing public services by delivering the manifesto commitment to make sure those public sector workers who have customer facing roles can speak fluent English.’
From the Government’s statements, presumably we are meant to assume that ‘British Citizens’ only speak English, that an objective test for ‘English fluency’ can be developed and applied across the board in the public sector and that somehow an English language fluency test will facilitate ‘integration’ and ‘British values’. By contrast, our assessment is that these poorly worded, shoddily thought-through and discriminatory provisions raise a series of questions, issues and dangers, including:
- What does ‘fluent English’ mean for the purposes of the planned Act and how would it be assessed?
- What would be the definition of a ‘customer-facing role’?
- At what stage of the recruitment or employment process would this test be applied and how?
- How would it be possible to set a standard ‘English fluency’ requirement across all relevant public sector roles and classes of public authority?
- What would be the costs associated with managing such a new testing and complaints regime? Is this a good use of public money at a time when the public sector is under continued financial pressures?
- Unless the Government intends to introduce a test that would breach direct race and/or indirect discrimination provisions, an English fluency test could not just be applied to immigrants or BME workers.
- How would a requirement to ‘speak fluent English’ be squared with the needs of certain disabled people who can be assisted to communicate but who do not meet the fluency test requirements for fluent spoken English?
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LGBT History Month website
 Go to http://lgbthistorymonth.org.uk/ for news of events taking place this February and a free LGBT History Month resource pack. The theme for LGBT History Month 2016 is religion, belief and philosophy.Recommended by Ruth Wilson.
Just Me and Allah: A Queer Muslim Photo Project
Beautiful photographs and interviews by Toronto photographer Samra Habib of LGBT Muslims around the world, available on line at http://queermuslimproject.tumblr.com/ Recommended by Ruth Wilson.
Centre for Holocaust Education events
 The Centre for Holocaust Education is running two free training sessions for teachers in Birmingham in the next couple of months. These have been recommended by Cathryn Gathercole. Click here for details: Unpacking the Holocaust 22 February and Unpacking the Holocaust 11 April
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Consultation on the Immigration Bill - response from the IEDP
By Barry Fitzpatrick
 This article is drawn from the response written by Barry Fitzpatrick on behalf of the IEDP to various consultation questions posed by the government with respect to the proposed Immigration Bill. The full response to the consultation can be found in the consultation and lobbying section of the IEDP website.
Is the guidance in the Code of Practice sufficient to help you meet the duties imposed on public authorities by Part 7 of the Immigration Act 2016 and set the necessary standard of spoken English?
No amount of guidance in the draft Code of Practice can save what is an irredeemably unworkable scheme, for which the ‘Impact Assessment’ establishes there is no need and introduces a pernicious complaint system which is unprecedented in UK employment law and also in terms of Ombudsman procedures. It is unclear upon what constitutional basis the provisions of the Bill are intended to apply to the public sector in Wales and would appear to have even more chaotic consequences if ever implemented in Wales.
Is the Code of Practice clear in its alignment with any existing legal obligations that you must adhere to, such as the Equality Act 2010 or Welsh Language (Wales) Measure 2011?
The provisions in Part 7 of the Immigration Bill 2015 are unlawful under European Union (EU) law, certainly Article 39TEU and also Article of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011. This conclusion would be fatal to their legality but, in any event, they may well be unlawful under Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Race Directive’) and, in relation to disability, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the Framework Directive’).
Article 39TEU and the 2011 Regulation are directly effective and therefore override the provisions of the Equality Act 2010. Nevertheless, it is arguable that this proposed scheme also contravenes the 2010 Act both in relation to race and disability.
Unworkability of the scheme
We approach these issues briefly, given the illegality of the measures, from the perspective of Equality and Diversity (E&D) professionals.
The first issue is, where is the Equality Impact Assessment (EQIA) for these provisions? A ‘fact sheet’ on the measures asks the question, ‘Isn’t this discriminatory? It replies, ‘Absolutely not.’ This is an extraordinary assertion to find in a Government document, particularly as the measures are directly and indirectly discriminatory in EU and UK law (and also contravene EU free movement principles).
It goes on to say, 'The Code of Practice will provide further guidance on how a public authority should exercise this duty in light of its obligations under the Equality Act 2010.' In fact, the draft Code only mentions direct discrimination and neither indirect discrimination nor the public sector equality duty.
In the absence of an EQIA, the Government has no idea whether there will be any adverse impact on any of the protected grounds.
Secondly, we are unclear about the justification for these measures. The only meaningful explanation is that it is a ‘manifesto commitment’.
Thirdly, there is no evidence base to support this initiative or a meaningful assessment of costs. In the Impact Assessment (IA), there is one example of customer-facing public sector worker who was deployed on grounds of language proficiency and examples from the NHS which are already covered by language proficiency requirements. There is also a highly dubious analysis of census data. There are references in the IA to ‘very few cases’ etc. If so, what is the point of this legislation?
Fourthly, it appears that the Cabinet Office is attempting to use a consultation on a draft Code of Practice to collect evidence which should have been collected, and then assess costs, before the proposal was brought into statutory form.
Fifthly, the option choice in the IA is misconceived. It is suggested in the IA that the consultation will provide an opportunity to consider the viability of Option 2 (non-regulatory approach) but it does not do so. More particularly, there ought to have been an option of giving a ministerial power in the Bill to make regulations on this scheme, rather than including it in primary legislation.
Sixthly, it is impossible to set standards in the blanket fashion proposed, other than for public sector employers continuing to do what they already do. The Minister of State talks about a ‘high standard of English’, the Bill refers to ‘fluent’, which is ‘interpreted’ to mean ‘adequate’ and various educational standards are suggested without sufficient regard to the nature of the job being undertaken. Surely, if a public sector employer had, though staff appraisal etc, any concerns about language proficiency, training or redeployment would naturally occur? And yet, the standards are to be ‘enforced’ by any member of the public who gets a notion that the language proficiency of a public sector worker is ‘inadequate’?
Seventhly, the scheme introduces an unprecedented form of regulation into the labour market in the public sector. It was thought that it is Government policy to reduce regulation in the labour market, not introduce an unnecessary and unworkable scheme. Presumably, if the ‘Red Tape Challenge’ is re-introduced, this unwanted and divisive scheme will be the first to go? It is unprecedented as it attempts to introduce an extraordinary exercise in ‘citizens’ complaints’ which has no parallel in UK employment law or UK administrative law, eg through Ombudsman procedures.
Eighthly, the implementation of this scheme will be a nightmare for E&D professionals. There is a danger that public sector employers will be deterred from employing those for whom English is not their first language, or those with speech impediments, whatever their nationality or origins. Some public sector employers may apply standards of language proficiency over and above that which are necessary for customer-facing jobs. Personal animosities, either within the workplace or outside it, may precipitate complaints. In particular, it opens the likelihood of racists, xenophobes and other miscreants making complaints because a worker ‘sounds foreign’. It is difficult enough for E&D professionals to uphold E&D policies in the workplace, promote good E&D practice and protect employers from tribunal cases and other litigation. These proposals open up fresh opportunities for divisive attitudes in the workplace, and in the provision of public services, and also extensive litigation, on direct discrimination, indirect discrimination and harassment claims.
Finally, for those E&D professionals who work outside England, these provisions are bemusing. Northern Ireland is excluded, without explanation, Scotland will only be subject to the scheme in relation to reserved powers but the public sector in Wales is fully covered, although the provisions appear to be addressing largely devolved matters. There is an indication that Legislative Consent Motions will be required from the Scottish Parliament and the Welsh Assembly, which hopefully will not be forthcoming, particularly in Wales, where the measures appear to be even more chaotic to implement than in England.
Legality of the Language Proficiency Provisions
 The question which ought to be posed is, ‘Are the provisions of Part 7 of the Immigration Bill 2015 consistent with the UK’s obligations in EU law?’ The answer is that they are not.
While a very high level of linguistic knowledge may be justifiable in particular situations and for certain jobs, the Commission considers that a requirement to be a mother-tongue speaker could lead to indirect discrimination on grounds of nationality. Also a requirement to have a language competence equivalent to a mother tongue level would in most cases be disproportionate in the light of case law (i.e. a language requirement must be reasonable and necessary for the job in question).
Recent case law indicates that, in the circumstances of these proposals, they may well amount to direct, rather than indirect, discrimination. In CHEZ Razpredelenie Bulgaria [2015] EUECJ C-83/14 (16 July 2015), the Court of Justice of the European Union (CJEU) was considering the application of the Race Directive to the installation of outdoor electricity metres in Roma-dominated urban areas in Bulgaria.
At §76 of its judgment, the CJEU produces a formulation of direct discrimination as follows, 'it is sufficient, in order for there to be direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/43, that that ethnic origin determined the decision to impose the treatment' (emphasis added).
In the circumstances in which these provisions have been introduced, including the announcement of their purpose by the relevant Minister of State, it is strongly arguable that migrant status 'determined' the decision to introduce the measures.
It would appear that these proposed provisions are contrary to Article 45.2 of the Treaty of the Functioning of the European Union (TFEU), which is ‘directly effective’ and therefore directly enforceable in UK courts and tribunals.If they are directly discriminatory, no justification defence arises. If they are to be considered, at least, as indirectly discriminatory, in that they place EU workers ‘at a particular disadvantage’, the CJEU in CHEZ made clear that, to be justified, they must pursue a ‘legitimate aim’. The ‘aim’ of these measures is stated to be to control immigration, which is not a ‘legitimate aim’ in EU law. Even if it could be argued that the ‘legitimate aim’ is to ‘improve public services’, the CJEU in CHEZ made clear that there must be an evidence base to establish the legitimacy of the aim in question and that ‘common knowledge’ is not sufficient.
However, in the Impact Assessment on English Language Requirement for Public Sector Workers, there are merely a couple of ‘anecdotes’ about language proficiency and no evidence at all. It appears that the legitimacy of the aim is put down to a ‘manifesto commitment’, what amounts to one line in an 81 page document, which is not an acceptable basis to establish the legitimacy of an otherwise indirectly discriminatory measure. The means, even to achieve a ‘legitimate aim’ of improving public services, must be ‘appropriate and necessary’. There is no evidence that these measures are ‘necessary’ to improve public services. They may well have a highly discriminatory effect on migrant workers in the public sector and hence are disproportionate to the purported aim to be achieved.
It should also be noted that the CHEZ judgment developed an innovative approach towards what has been described as ‘associative discrimination’ after its judgment in Coleman. The Court concluded that, once discrimination is established, a claimant does not have to be a member of the ‘protected group’ and that such a person could make a claim, 'irrespective of whether that collective measure affects persons who have a certain ethnic origin or those who, without possessing that origin, suffer, together with the former, the less favourable treatment or particular disadvantage resulting from that measure.'
As such, any non-EEA migrant workers, or indeed any UK workers, would have a claim if they were subject to the application of these proposals. In consequence, these proposals are irredeemably discriminatory under Article 45.2 TFEU.
In summary, these ill-considered provisions are unlawful in a number of respects and will trigger a wide range of litigation, in terms of judicial review and court and tribunal cases:
1) The measures are unlawful under Article 3.1(b) of the 2011 Regulations as having a principal, if not exclusive, aim 'to keep nationals of other Member States away from the employment offered'.
2) The measures are directly discriminatory under Article 45.2 TFEU as they are ‘determined’ by the migrant status of customer-facing public sector workers.
3) In any event, they are indirectly discriminatory under Article 45.2 as they place migrant workers at a particular disadvantage, there is no evidence of a ‘legitimate aim’ and are not ‘appropriate and necessary’.
4) The use of the terms ‘fluent’ and ‘fluency’ indicate a ‘mother tongue’ proficiency, which is not permissible in EU law. An attempt to define these terms to mean what they do not ordinarily mean will be a source of confusion.
5) An attempt to apply ‘blanket standards’ across the public sector will very likely contravene EU standards on language proficiency.
6) Despite the ‘nationality’ exceptions in the Race and Framework Directives, and the ‘nationality’ exception in 2010 Act, it is likely that the application of these measures will leave public bodies open to extensive litigation, primarily on grounds of race and ethnic origins, but also on grounds of disability, in relation to direct and indirect discrimination and harassment claims.
7) If enacted, these provisions will be subject to judicial review on any of the grounds set out above.
8) The provisions in Part 7 of the Immigration Bill are irredeemably flawed and there is nothing which could be included in a Code of Practice to save them.
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Risky business?
By  Drew Wilkins
In the last couple of weeks the press has reported on a primary school that banned a visually impaired girl from carrying her white cane due to ‘health and safety’ reasons. The school’s mobility officer raised the health and safety concerns as the guide cane could pose a risk to pupils and teachers. The head teacher says it’s a temporary measure and that meanwhile the pupil should have 100% adult support. The school seems to have forgotten about the Equalities Act and the Public Sector Equality Duty (PSED).
If a guide cane is a risk, let’s consider the situation elsewhere. I was fortunate enough to visit Iceland recently and this included a morning in an Icelandic school. There are many differences from most schools in the UK. Sjalandsskoli has 280 students aged 5 to 15. It shares its facilities with the International School of Reykjavik (another 76 students). Pupils and staff use first names only.
One thing that struck me as we arrived was the absence of a fence and gate. Schools in the UK are now gated communities, such is the aversion to risk. The whole set up seems designed to keep the wider community out, unless dropping off or picking up children at the start and end of the school day.
Sjalandsskoli, like other schools in Iceland, is the opposite; no fences, no gates. I considered also the fast-flowing stream that formed part of the boundary on one side. No fence, no barrier. On another side of the building the sea was about 30 metres away. No fence, no barrier. In a lesson four young teenagers were standing on chairs (like all other chairs in school they were on casters and swivelled) to apply papier-maché to a large balloon. In another lesson two boys were happily banging nails into a piece of wood, a prop for the forthcoming production.
 When I spoke to the head teacher and colleagues from the Ministry of Education, their reaction was simple – children have to learn about risk. If they get hurt, they won’t do it again. This wasn’t laissez-faire. There was always a watchful eye and the children seemed well aware of the boundaries, but they were allowed to get on with it.
Sjalandsskoli is truly part of the community, open from 8am to 10pm and used by the community before and after lessons start. When we arrived, there was a small group of older people in the foyer, drinking coffee and chatting after their session in the swimming pool. Some of the children said hello, a couple spoke about their lessons; the adults were equally friendly and interested.
The guide cane affair is a symbol of the mess that safeguarding in British schools has become. A head teacher I spoke to complained of mixed messages coming from the government, Ofsted and the local authority. Common sense, it seems, has gone to live somewhere else.
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The Pink List 2015
 Here is the 2015 Rainbow List (previously known as the Pink List), Tne Independent's list of the 101 most influential LGBT people in Britain - to fit in with our LGBT History Month theme Click photo to read
New research cites workplace adjustments and organisations values as the biggest aids to retaining disabled employees
 Elaine Bolton has pointed out this press release from the Business Disability Forum about their recently published research. Click photo to read
High award in caste discrimination case raises stakes for all employers
 Elaine Bolton has recommended this article from the CIPD by Katie Coyne on a recent caste discrimination case. Click photo to read.
A level music to include female composers after student's campaign
 Ruth Wilson liked this article from The Guardian by Nadia Khomami about the brilliant action by 17-year-old Jessy McCabe. Click photo to read.
No, one in five British Muslims doesn't support ISIS
 Ruth Wilson thought this was an excellent article by Jon Stone in The Independent critiquing a statistic used in a recent Sun headline. Click photo to read. |
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Three recent reports advocate a more secular approach to education
 By Ruth Wilson
A few years ago this newsletter included an article about the then newly formed Accord coalition - an umbrella organisation set up seven years ago that advocates a more secular approach to religious education in schools. The coalition includes the Association of Teachers and Lecturers, the British Humanist Association, British Muslims for Secular Democracy, Ekklesia and the Hindu Academy among its members.
Accord's most newsletter notes that three separate independent reports that appear to support their case:
Living with Difference: community, diversity and the common good
The Woolf Commission undertook major study into role of religion and belief in public life sponsored by the Woolf Institute, one of the leading academic bodies dedicated to studying relations between Jews, Christians and Muslims, and developing steps to better them. Its chair was Baroness Elizabeth Butler-Sloss and other commissioners included leading faith exponents. The study was based on public hearings and evidence from a range of organisations and individuals.
The Woolf Commission was critical of various aspects of religious education, including arguing that:
- Selection by religion has the effect of segregating children by ethnicity and socio-economic background, which undermines equality of opportunity and 'incentivises parents to be insincere about their religious affiliation and practice.'
- Religious segregation may lead to 'greater misunderstanding and tension'
- Religious education courses often present 'a sanitised or idealised' view of religion and fail to include non-religious world views
RE for REal
A report by the Faiths and Civil Society Unit at Goldsmith, University of London, was headed by Professor Adam Dinham and was based on interviews with employers and teachers, students and parents on the subject of Religious Education. Among the findings were that 86% of teachers and 94% of parents thought RE should be made part of the National Curriculum. It argued that this would mean that it would be taught in a more standardised way and would encourage schools to adopt a broad and inclusive approach.
Click here for the RE for REal report
Collective Worship and Religious Observance in Schools: An Evaluation of Law and Policy in the UK
The third report, by academics from across the UK, was from the Arts and Humanities Research Council and called for a wide-ranging government review into the law on school assemblies, including investigating the rationale for schools being required to provide daily religious worship.
Click here for the Collective Worship and Religious Observance in Schools report
The Accord coalition argue that the common theme of these three reports is a move away from religious segregation, and cite them as evidence that there is a slow shift in public opinion away from faith schools and towards a more inclusive approach to religious education. They say 'It is time to state firmly that the role of state-funded schools is to educate, and neither to indoctrinate nor segregate. We hold that it is only by children knowing about the major belief systems in the UK that we can ensure a tolerant society.'
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Terrific TED talks
This issue's TED talks have been selected by Ruth Wilson in celebration of LGBT History Month in February.
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This is what LGBT life is like around the world
Jenny Chang and Lisa Dazols interviewed LGBT people from a range of different countries in May 2015.
What the gay rights movement learned from the civil rights movement
This is an interesting talk by Yoruba Richen from March 2014.
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Account of the last IEDP board meeting
By Ruth Wilson
As usual, here is a brief account of the most recent IEDP board meeting. This was held on 8 December 2015 and was a Skype meeting.
Finance
Management accounts for the period up to 30 November had been circulated before the meeting and were briefly discussed.
Website and logo
The new logo has been agreed and we will begin using it in the new year. There was a discussion about the revisions we were hoping to make to the website. Various Board members have been working on the specification but unfortunately this has added considerably to the cost, so further quotes now need to be sought.
Collaboration with universities
Kate Hinton and Ruth Wilson reported back from their meeting with a university to discuss a possible link between the IEDP accreditation scheme and their Masters' programme. There was a discussion about other possible ways of collaborating with the university, and also other universities that may be interested in linking our accreditation with their Masters' degrees.
Accreditation update
There was a discussion based on a report circulated before the meeting and Kate Hinton updated the Board on recent developments.
Advisory supporters
The board discussed the proposal of inviting several established practitioners to become Advisory Supporters who would bring an area of expertise and regular contribution to the Institute and be recognised on the website. It was agreed that this was a good way forward rather than the earlier idea of appointing Fellows.
Corporate membership
We explored ways of making corporate membership more attractive, such as a sliding scale of fees and a Corporate Plus level that would include access to advice and consultancy. It was agree that further thought needs to be given to this.
Intern
Denise is seeking another intern to support our work.
Next seminar
Denise reported back on progress towards the next seminar.
Next meeting
The next Board meeting will be on 23 February and will be a face-to-face meeting.
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Contact us
The Institute of Equality and
Diversity Practitioners
2 Old College Court, 29 Priory Street, Ware, Hertfordshire, SG12 0DE
tel: 0844 482 7263
fax: 0844 8225 215
email: info@iedp.org.uk
web: www.iedp.org.uk
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And finally...
We hope you enjoyed reading this newsletter and would welcome any feedback or suggestions about how we could improve it for the benefit of our members. If you have any ideas for future editions or would be interested in writing an item for the next issue please contact Ruth Wilson on:
ruth@equalitiesineducation.co.uk
The deadline for contributions to the next issue is Friday 4 March. Please circulate this newsletter to anyone who may be interested in our work or who may wish to join the Institute.
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