Equality and Diversity in Employment Policy

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1 RCCG/GB/16/163 v. Equality and Diversity in Employment Policy Version No Author Date Comments Approved by V1.0 Lynne Sharp First draft for comments AGEM HR BP November HR Comments To be APPROVED Governing Body 1

2 EQUALITY IMPACT ASSESMENT This document has been assessed for equality impact. This policy is applicable to every member of staff within the CCGs irrespective of their race, ethnic origin, nationality, gender, culture, religion or belief, sexual orientation, age or disability. Reader Information Reference Title HR006 Equality & Diversity in Employment Policy Document purpose To set out and confirm the CCGs commitment to promoting equal opportunities and to recognise and value peoples differences Version Owner Approval Date Approving Committee Head of Governance and Engagement Governing Body Review Date November 2019 Groups/Employees Consulted Target audience Circulation list Associated Documents CCG Employees All NNE, NW and Rushcliffe CCG Employees All NNE, NW and Rushcliffe CCG Employees HR Policies: Bullying and Harassment Policy, Grievance Policy, Disciplinary Policy, Recruitment and Selection Policy and Your Attendance Matters and Absence Procedure, Management of Unsatisfactory Work Performance Policy, Raising Concerns at Work Policy, Flexible Working Policy. South Nottingham CCGs Equality and Diversity Policy, Trans* Equality and Gender Re-assignment Policy and Equality Impact Assessment Guidance Superseded Documents Equality Implications Sponsoring Director An EIA has been carried out and no implications have been identified Chief Officer 2

3 Contents 1. Policy Statement Legislation The Equality Act Public Sector Equality Duty (PSED) Purpose Managing Equality and Diversity - Governance Arrangements Chief Officer Governing Body CCG line managers and employees Managing Equality and Diversity Framework for Delivery Equality Delivery Scheme (EDS2) Recruitment, Promotion, Transfers, Redeployment and Ending Employment Workforce Profiling and Monitoring and the Workforce Race Equality Standard (WRES) Training Associated Policies Outcome Monitoring and Audit of Policy Due Regard Equality Statement Review

4 1. Policy Statement NHS Rushcliffe CCG is committed to promoting equality, valuing diversity and combating unfair treatment and aspires to be representative of all the communities it serves taking pride in being an equal opportunities employer, opposing all forms of unfair or unlawful discrimination. Accordingly, it is the CCG s policy that no employee or job applicant receives less favourable treatment on the grounds of his or her gender, religion and belief, age, disability, race, gender reassignment, marriage and civil partnership, pregnancy and maternity or sexual orientation (the nine protected characteristics). This Policy sets out the aims of the organisation to ensure equitable and fair outcomes for all employees. The policy should be read alongside the South Nottingham CCGs Equality and Diversity Policy which focuses mainly on the CCG s service planning and commissioning functions. 2. Legislation The legal framework for the policy includes the Equality Act 2010 and its associated Public Sector Equality Duty; the NHS Constitution and the Human Rights Act The Equality and Human Rights Commission s statutory code of guidance for employment has also been followed in preparing this policy. 2.1 The Equality Act 2010 The Equality Act 2010 has replaced all previous anti-discrimination legislation with a single Act to simplify the law and making it easier for people to understand and comply with it, and to remove any inconsistencies. 2.2 Public Sector Equality Duty (PSED) The Act was followed by a key measure for public sector organisations in 2011, the public sector Equality Duty (The Equality Act 2010 (Specific Duties) Regulations 2011). The PSED is set out under section 149 of the Act and applies to public bodies and to other organisations when they are carrying out public functions. The Equality Duty was introduced to provide a framework for promoting equal opportunities, eliminate unlawful discrimination and harassment and improve the experience of service users and staff. It replaced the three previous public sector equality duties for race, disability and gender and identified nine protected characteristics: age race this includes ethnic or national origins, colour or nationality sex gender reassignment status disability 4

5 religion or belief including non-belief sexual orientation marriage and civil partnership status pregnancy and maternity All public organisations must, in the excise of their legislative duties, have due regard to the three aims of the PSED: Eliminate discrimination, harassment and victimisation or any other conduct prohibited by the Equality Act 2010 in relation to the protected characteristics (see Appendix 1 for definitions) Advance equality of opportunity between all persons Foster good relations between all groups of people sharing a protected characteristic and those who do not. 2.3 Human Rights Act 1998 Public authorities have a duty under the Human Rights Act 1998 (HRA) to act compatibly with rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention); to refrain from interfering with the human rights of an individual; and are under a positive duty to proactively safeguard an individual s human rights. In practice, human rights issues in the workplace are likely to arise in relation to forced labour, privacy and data protection, freedom of expression and thought, trade union activity and harassment. 2.4 NHS Constitution The NHS Constitution outlines a number of rights and duties for staff of which the following are relevant to this policy: 4a. Staff your rights and NHS pledges to you. It is the commitment, professionalism and dedication of staff working for the benefit of the people the NHS serves which really make the difference. High-quality care requires high-quality workplaces, with commissioners and providers aiming to be employers of choice. The rights are there to help ensure that staff: have a good working environment with flexible working opportunities, consistent with the needs of patients and with the way that people live their lives; have a fair pay and contract framework; can be involved and represented in the workplace; have healthy and safe working conditions and an environment free from harassment, bullying or violence; are treated fairly, equally and free from discrimination; can in certain circumstances take a complaint about their employer to an Employment Tribunal; and can raise any concern with their employer, whether it is about safety, malpractice or other risk, in the public interest 5

6 4b. Staff your responsibilities All staff have responsibilities to the public, their patients and colleagues. The relevant duty for this policy is: You have a duty not to discriminate against patients or staff and to adhere to equal opportunities and equality and human rights legislation. The NHS Constitution also highlights a number of expectations staff should aim for. The relevant aim for this policy is: to contribute towards providing fair and equitable services for all and play your part, wherever possible, in helping to reduce inequalities in experience, access or outcomes between differing groups or sections of society requiring health care; 3. Purpose Having a published policy for equality and diversity in employment has a number of distinct advantages: it gives job applicants and employees confidence that they will be treated equitably and with dignity and respect; it sets standards of behaviour expected of all employees and outlines what employees and job applicants can expect from the employer; it supports employers and others to comply with their legal obligations; it can minimise the risk of legal action being taken against employers and employees; and/or if legal action is taken, employers may use the equality and diversity in employment policy to demonstrate to an Employment Tribunal that they take discrimination seriously and have taken reasonable steps to prevent discrimination. This Policy sets out how the CCG will meet its statutory duties which they view as crucial to the success of the CCGs as dynamic individual organisations by: Outlining the framework for promoting the equality and diversity agenda within the CCG. Directly recognising the link between the CCG s activities as an employer and people s opinions of the CCG and the effective commissioning of local healthcare services, creating an environment that promotes equal opportunities and values people s differences. Ensuring all staff understand their own responsibilities for working towards an equal and diverse health community. The development of this policy supports the CCG to meet its legal and regulatory responsibilities for equality, diversity and human rights. Compliance also makes good business sense for the organisation: An organisation that is able to provide services to meet the diverse needs of its users should find that it carries out its core business more effectively An organisation which creates a supportive working environment for its employees is more productive Many organisations have also found it beneficial to draw on a broader range of talent and to better represent the community that they serve 6

7 Diversity also results in better informed decision-making and policy development 4. Managing Equality and Diversity - Governance Arrangements 4.1 Chief Officer The Chief Officer as Accountable Officer is the executive lead and is ultimately legally responsible for the organisations compliance with equality legislation ensuring that necessary resources are in place to support and promote equality and diversity priorities. The Chief Officer will ensure that this policy is fully implemented and that employees are aware of their responsibilities and do not discriminate or breach the human rights of others. 4.2 Governing Body All members of the Governing Body assume an individual and collective responsibility for supporting the CCG in complying with equalities legislation; and demonstrate the values of equality and fairness at work through their own exemplary behaviour. 4.3 CCG line managers and employees Managers should ensure that best practice is adhered to at all times and that employees are aware of their responsibilities and what they can expect under this policy. Managers should listen to their staff and create an environment where staff feel supported in reporting concerns; and that they are confident that appropriate action will be taken. Managers are responsible for ensuring that any allegations of discriminatory behaviour or practices are correctly investigated and appropriate action taken. This may involve the use of the CCG s Bullying and Harassment Policy, Grievance Policy, Disciplinary Policy and Management of Unsatisfactory Work Performance Policy. Employees should be aware of and understand this policy and behave in a way that is consistent with it; taking personal responsibility for ensuring that knowledge and skills on equality, diversity and human rights issues are kept up to date and in line with any competency framework used by the organisation. Employees should report any instances where they feel unfair discrimination is suspected or taking place in the organisation. 5. Managing Equality and Diversity Framework for Delivery 5.1 Equality Delivery Scheme (EDS2) EDS2 provides a ready-made way for the NHS to respond to the PSED. It is a toolkit developed for NHS organisations to review and improve their equality. The toolkit enables the CCGs to improve the services provided for local communities, consider health inequalities in the locality and provide better working environments, free of discrimination, for those who work in the NHS. The EDS has four goals key goals (with 18 specific outcomes): Achieving better outcomes Improving patient access and experience Developing a representative and supported workforce and, Demonstration of inclusive leadership. 7

8 Each of these goals is assessed and a grading applied to illustrate progress in achieving the outcomes. Involvement of the communities and organisations who represent the views of people with protected characteristics is important. CCGs are required to grade themselves against progress made with the EDS2 at least once every three years. The outcomes cover things that patients and staff say matter the most to them. Working with patients, staff and local voluntary organisations, NHS organisations can analyse their performance against the 18 outcomes and use the results to identify equality objectives at least every four years, which are specific and measurable In fulfilling its obligation to the PSED, the CCG will adhere to the Brown Principles (Appendix 2). 5.2 Recruitment, Promotion, Transfers, Redeployment and Ending Employment The CCG operates fair, inclusive and transparent recruitment and selection processes. The CCG will ensure that all job vacancies and associated adverts are non-discriminatory and positively promote equality and diversity. In addition, where appropriate, job advertisements will include a statement to encourage applications from under-represented groups in a particular area of work. The CCG will keep a signed record of selection decisions which will be kept on file for 6 months. All unsuccessful applicants will be entitled to feedback. Selection panels have been established for all procedures relating to employee recruitment and retention, promotion, transfer and redeployment and they will ensure all such decisions are fair and consistent. More details are contained in the Recruitment and Selection Policy. The following measures are in place in order to minimise the opportunity for discrimination: All vacancies are advertised via the NHS Jobs website apart from specific circumstances such as organisation or team restructuring. Candidates personal details are not made available to recruiting managers until after shortlisting has taken place. A minimum of two people is required to be involved in the shortlisting process. An interview is guaranteed to any candidate with a disability whose application meets all of the essential criteria for the post The CCG recognises the mutual benefits to both the organisation and its employees with regard to the implementation of flexible working. The CCG has a Flexible Working Policy offering several ways of working flexibly, including part-time working, job share, annual hours, flexible working time, flexible location and flexible retirement. The CCG proactively supports its commitment to employees and job applicants through: Operating the guaranteed interview scheme for disabled candidates meeting the essential criteria. Continued adherence to the five commitments of the Two Ticks Positive About Disability scheme regarding the recruitment, employment, retention and career development of disabled people. Registering with Mindful Employer for the Charter for Employers who are Positive about Mental Health a voluntary agreement seeking to support employers to work within the spirit of its positive approach. 8

9 5.3 Workforce Profiling and Monitoring and the Workforce Race Equality Standard (WRES) The CCG is committed to ensuring an equal and diverse workforce and in order to do this monitoring of both our patients and employees is carried out. This is done through collecting equality data from job applicants, existing employees and leavers, in order to build up a picture of how representative the workforce is and which areas need more work to attract people to apply to come to work for the CCG. The results of this monitoring can then be measured to ensure that the CCG does indeed reflect the community that they serve. The Joint Strategic Needs Assessment and census data are used to provide the profile of the local community. The CCG will carry out an annual staff survey to monitor, amongst other things, to what extent staff feel they are treated fairly and equally. The CCG will share the results of the survey each year with staff and develop action plans with staff to address any areas identified. The Workforce Race Equality Standard (WRES) is a tool to support NHS organisations to make measurable progress on workforce race equality. CCGs have two roles in implementing the WRES: As employers utilise the indicators from the WRES to improve workplace experiences and representation at all levels within the workforce for Black and Minority Ethnic staff As commissioners monitor that providers are using and implementing the WRES. 6. Training The CCG is committed to providing equality of access to training and career development to all employees. The CCG is committed to providing training for all employees across the whole equality and diversity agenda. In taking this approach, the CCG is able to deliver to its employees a fully rounded understanding of equality and diversity and how it is relevant to their specific role and what behaviours are expected from them particularly when dealing with sensitive issues. 7. Associated Policies This Policy should be considered alongside the Equality and Diversity Policy and relevant HR Policies, including but not limited to, Bullying and Harassment Policy, Grievance Policy, Disciplinary Policy, Recruitment and Selection Policy, Raising Concerns at Work (Whistleblowing) and Your Attendance Matters Policy; the Equality Delivery Scheme and Action Plan; the Trans* Equality and Gender Reassignment Policy and the Equality Impact Assessment Policy and Guidance. 8. Outcome Equality is ensuring individuals or groups of individuals are treated fairly and equally and no less favourably, specific to their needs. Diversity aims to recognise, respect and value 9

10 people s differences to contribute and realise their full potential by promoting an inclusive culture for all staff. By harnessing differences between people the CCG can drive forward excellence and creativity in performance. Organisations that embrace variety; reject prejudice and understand and accommodate changing work patterns will be the organisations which reap the reward of a happy, fulfilled and motivated workforce with diverse skills. The CCG is committed to delivering this outcome. 9. Monitoring and Audit of Policy The CCG will monitor this policy for compliance and effectiveness at regular intervals. Monitoring will be carried out through the progression of the EDS2 action plan which is the working document that ensures the commitments in this Policy are successfully completed. 10. Due Regard This policy has been reviewed in relation to having due regard to the Public Sector Equality Duty (PSED) of the Equality Act 2010 to eliminate discrimination; harassment; victimisation; to advance equality of opportunity; and foster good relations between the protected groups. 11. Equality Statement NHS Rushcliffe Clinical Commissioning Group (CCG) aims to design and implement policy documents that meet the diverse needs of our services, population and workforce, ensuring that none are placed at a disadvantage over others. It takes into account current UK legislative requirements, including the Equality Act 2010 and the Human Rights Act 1998, and promotes equal opportunities for all. This document has been designed to ensure that no-one receives less favourable treatment due to their personal circumstances, i.e. the protected characteristics of their age, disability, sex (gender), gender reassignment, sexual orientation, marriage and civil partnership, race, religion or belief, pregnancy and maternity. Appropriate consideration has also been given to gender identify, socio-economic status, immigration status and the principles of the Human Rights Act. In carrying out its function, NHS Rushcliffe CCG must have due regard to the Public Sector Equality Duty (PSED). This applies to all activities for which the CCG is responsible, including policy development, review and implementation. 12. Review The Equality and Diversity in Employment Policy will be reviewed on a three yearly basis from the date of approval by the Governing Body. 10

11 Appendix 1 Definitions Protected characteristics These are the characteristics which are afforded explicit protection from discrimination under the Equality Act The characteristics are: Age Disability Gender Gender Reassignment Marriage and Civil Partnership Pregnancy and Maternity Race Religion and Belief Sexual Orientation Direct Discrimination This occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (see perception discrimination below), or because they associate with someone who has a protected characteristic (see discrimination by association below). Indirect discrimination Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, ie that it is a proportionate means of achieving a legitimate aim. A legitimate aim might be any lawful decision you make in running your business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including showing that you ve looked at less discriminatory alternatives to any decision you make. Associative discrimination Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic. For example, employment cannot be refused because someone has to care for an elderly relative or a disabled child. Managing absence, flexible working, harassment and bullying and other appropriate procedures and policies should be reviewed to ensure that this concept is adequately and accurately reflected. Discrimination by perception Applies to age, race, religion or belief, sexual orientation, disability, gender reassignment, and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic. For example, refusing to recruit a person purely because they are thought not to look old enough to possess the skills to do the job. 11

12 Harassment Harassment is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association. Subjecting someone to harassment can amount to discrimination and could potentially be considered to be gross misconduct. Victimisation Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. A complainant will not need to compare their treatment with that of a person who has not made or supported a claim under the Act. Subjecting someone to victimisation is potentially gross misconduct. 12

13 Brown Principles Appendix 2 These principles have been taken from the Equality and Human Rights Commission s paper on making fair financial decisions (Equality and Human Rights Commission, 2012). Case law sets out broad principles about what public authorities need to do to have due regard to the aims set out in the general equality duties. These are sometimes referred to as the 'Brown principles' and set out how courts interpret the duties. They are not additional legal requirements but form part of the Public Sector Equality Duty as contained in section 149 of the Equality Act Under the duty public authorities must, in the exercise of their functions have due regard to the need to: Eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Act Advance equality of opportunity between people who share a protected characteristic and those who do not Foster good relations between people who share a protected characteristic and those who do not. In summary, the Brown principles say that: Decision-makers must be made aware of their duty to have 'due regard' and to the aims of the duty. Due regard is fulfilled before and at the time a particular policy that will or might affect people with protected characteristics is under consideration, as well as at the time a decision is taken. Due regard involves a conscious approach and state of mind. A body subject to the duty cannot satisfy the duty by justifying a decision after it has been taken. Attempts to justify a decision as being consistent with the exercise of the duty, when it was not considered before the decision, are not enough to discharge the duty. General regard to the issue of equality is not enough to comply with the duty. The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision. The duty has to be integrated within the discharge of the public functions of the body subject to the duty. It is not a question of 'ticking boxes'. The duty cannot be delegated and will always remain on the body subject to it. It is good practice for those exercising public functions to keep an accurate record showing that they had actually considered the general equality duty and pondered relevant questions. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by the equality duties. 13

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