POLICE FEDERATIO

N OF ENGLAND &

WALES

Equality Leaders

Positive Action November

2012

POSITIVE ACTION Presentation by Binder Bansel

The Right to Request

OVERVIEW

Existing provisions under SDA 1975Provisions of PF Regulations 1969 Provisions of Section 158 of EA 2010 Bench marking exercise Conclusions and outcomes

PF Regulations 1969

• A number of areas of the 1969 Regulations permit positive action/reserved seats for female representatives.

• Reg.6 - Elections for Branch Boards• Reg. 6(4) permits a reserved seat

without the requirement for election in respect of each separate Rank Branch Board

• Reg. 6(5) confirms the electoral constituency and the member Board should only represent one constituency at a time

• Reg. 8 - confirms Liaison Committees for female officers at the rank of constable

• Reg. 8(2) extends such measures to other Liaison Committees including rank other than constable

PF REGULATIONS

Central Conferences Reg 9:

• Reg 9(3) confirms members of the separate rank Branch Boards of the Federation within a region shall elect from among the women elected under Reg 6(5) such numbers of delegates to the appropriate Central Conference

• Central Committees Reg 12:• Reg 12(2) confirms members of

the relevant Central Committee must be a woman elected as a delegate under Reg 9(3) or be an additional delegate under Reg 9(8)

PF Regulations

• Reg 14 provides for Womens’ Regional Conferences

• As a consequence reserved seats are provided for female representatives at Branch and Central Committee level

PF Regulations

• Position of the JCC? • Regulation 12 confirms the

composition of the Rank Central Committee

• Reg 12(2) as indicated above confirms the election of a woman as a delegate and member of the relevant Central Committee

• Reg 13(4) confirms the three Central Committee sitting together are known as the JCC of the PFEW

• No express reference to the reservations of seats for women representatives for the JCC

• However, reasonably clear that the JCC is the sum of the constituent parts of the PFEW which are subject to reserved seats for women representatives

EA 2010

• EA 2010 Eligibility repeals the SDA 1975

• No longer able to rely on s49 of the SDA and the express reserved seat position for female representatives on a staff association body

• EA introduces new tests and threshold for any future positive action

• Reserve seats are only one example of positive action

EA 2010

S158 EA

• Positive action permitted if a person reasonably thinks:-

• a person has suffers a disadvantage connected to a protected characteristic

• persons who share a protected characteristic have different needs that are different from the needs of persons who do not share it

• participation in activity by persons who share a protected characteristic is disproportionately low

EA 2010

Potential Problem Areas

• No definition of what is necessary to demonstrate a reasonable belief

• No definition of disadvantage• No definition of different

needs• No definition of activity• No definition as to what is

reasonably necessary for the PFEW as service providers/association to reasonably think to establish that a particular group is disadvantaged

EA 2010

Other Considerations

• S158 is not limited to gender positive action but applies to a number of other protected characteristics such as race, sexual orientation and age

• Significant change in that s158 introduces a test of proportionality

• Any positive action measures taken will only be legitimate if they are a proportionate means of achieving a legitimate aim

EA 2010Legitimate Aim? See s158(2) will only be a

legitimate aim if:-

• enabling or encouraging persons with that protected characteristic to overcome or minimise the disadvantage

• meeting those different needs

• enabling or encouraging persons who share the protected characteristic to participate in that activity

• a failure to demonstrate both the legitimate aim and the proportionate ways in which it is achieved would mean the protection provided for by s158 cannot be relied on

Bench Marking

Clear s158 requires a more considered and dynamic approach to the notion of positive action

• Positive action remains at all times voluntary

• Advised that the PFEW undertake and continue to undertake bench marking exercise

• Benchmarking exercise can inform the PFEW as to what positive action measures, if any, may be necessary

Bench Marking

JCC Reserved Seat Representatives Report

• Demonstrates some demographics which might have been envisaged

• The majority of JCC reserved seat candidates are in the age group 41 to 50

• Table 2 confirms the overall proportion of female officers is 25.8 percent within the service

• 17.8 percent of the JCC and reserved seat candidates are female

• Corresponding figures of BME candidates are 4.7 percent and 3.9 percent respectively

• Demonstrates a degree of under representation in relation to protected characteristics such as gender and BME

Bench Marking

JBB Equality Monitoring Report

• JBB candidates report portrays a similar number of trends

• Table 2 confirms 25.8 percent of officers are female, the corresponding number of female candidates are 18.9 percent

• Corresponding figures of BME candidates are 4.7 and 2.7 percent respectively

• Table 3 confirms under representation of female officers at the rank of constable

• Note these figures are qualified by the fact the reserved seats will skew the statistics

• Table 4 gives some insight into the possible effect of reserved seats for female officers

• 25.8 percent of the service are female, 13 percent of the PFEW’s representatives are female

• Suggests that the effect of the reserved seat candidates has increased female representation as JBB representatives from 13 percent to 19 percent

• Assumes the data is reliable

Bench Marking

Outstanding Questions

Still have insufficient information about the individual make up and composition of JBBs

• unclear as to how, if at all, the PFEW can rely upon the statistics for BME candidates

• the sample of size may be insufficiently large to allow reliable reliance on it

• Suggested focus groups within JBBs/Regions

Potential Problems

The bench marking exercise so far does not provide information to enable any accurate assessment to be made of the positive action measures that might be required by Board and to a degree by rank within that Board

• Current provisions in 1969 Regulations are mandatory but only in respect of one protected characteristic

• If current position is to be maintained will require a detailed and ongoing exercise of establishing the needs of s158 being maintained, e.g., disadvantage/different needs/disproportionately participation activity

• Would still need to establish that the mandatory reservation of seats for female representatives is a proportionate means of achieving the aim of minimising disadvantage/meeting those needs/encouraging participation in that activity

• Failure to take an active approach to assessing these matters will leave the Federation open to challenge

• Claim against the relevant Central Committee and/or JBB

• Challenge on the basis that such a measure is either not legitimate insofar as other characteristics are concerned and/or is not a proportionate means of achieving that aim

Conclusions

• Current arrangements are at risk of being challenged as being insufficiently flexible

• Two potential areas for challenge

• Not all areas of the PFEW by Rank and Board will necessarily have under representation - current provision has a mandatory requirement for reserved seats

• Other protected characteristics could be deserving of positive action measures such as reserving seats

• The requirement for ongoing evidence of disadvantage/different needs/proportionately low participation in an activity

• Evidence of the true picture for other protected characteristics

Conclusions

• If PFEW wish to maintain the status quo it needs to have as much evidence as is available to justify that stance

• Other positive action measures should also be considered

• Bench marking exercise suggests that once candidates are encouraged to stand the disadvantage of being elected generally speaking removed

• Mentoring• Making funds available to

demonstrate the nature of a PFEWs representative role

• Flexible working for reps• Road shows?

Conclusions

• Current arrangements could be challenged as being inflexible, e.g., male representatives standing for the reserved seat position on a Board which has an equal number of male and female representatives?

• BME candidates standing for a reserved seat position on the ground that there are no BME representatives on the Board in question?

Conclusions

Options?

The creation of frequently answered questions to provide practical guidance as to the methods of positive action and the distinction with positive discrimination which is generally unlawful

• The creation of a toolkit which will provide further practical guidance to the JBBs

• Preferable to have sufficient flexibility expressly stated in the Regulations

• Amend Regulations to allow positive action measures (not just reserved seats) as necessary for all protected characteristics?

• Decision on whether such action is taken will be informed by the circumstances that Board or Committee faces

• Still require the provisions of s158 to be met in relation to disadvantage/different needs/disproportionately low participation in activity and a proportionate means of achieving a legitimate aim. The changes will lead to constitutional differences in a Board or Committee as appropriate

What should JBBs do?

• Assess the position by reference to each protected characteristics

• Assess the issue by separate rank JBBs

• In relation to each characteristic and for each rank, assess the issues in relation to the different needs/disadvantage/under representation

• Consider the legitimate aim that is being pursued?

• What can be done in relation to under representation/

disadvantage/different needs • Remember the issues of

proportionality – there may be more than one way of achieving a legitimate aim identified

• There must be evidence to support the positive action measures being taken

QUESTIONS

Case Study 1Considering the needs of disabled members

• What evidence is there regarding the numbers of disabled officers and their disabilities

• Particular sensitivities regarding disability

• What are the needs of disabled officers , are they different or are they at a disadvantage?

• If no difference or disadvantage, steps taken are unlikely to be sufficient to amount to a legitimate aim

• If there is a legitimate aim, what can be done?

• Remember the issue of proportionality, there may be more than one method of addressing issues of different needs or disadvantage

• How can the separate Boards or JBB assist?

Case Study 2

Race and/or religion

• What are the different needs or disadvantage

• Need to ensure that there is a legitimate aim being pursued by the positive action measure

• How can the different needs or disadvantage be addressed

• To ensure that any steps taken are proportionate

• How can the separate Boards or the JBB assist?

Case Study 3 Under representation

• Is there under representation by rank and/or JBB

• If so, where’s the evidence? • Evidence will be required for each

characteristic for which positive action measures may be implemented

• What can be done to address the issue of under representation

• What steps will be taken, bearing in mind they must be proportionate

• In all cases whether dealing with under representation or specific measures for a specific characteristic – the measures must be kept under review

• Cannot proceed on the basis that positive action measures are a one-off measure