TANUSHREE SEHMBI, Sky UK Limited, REBECCA HAYES, Kantar, SHUBHA BANERJEE and UZAIR ZAFAR, Curzon Green Solicitors, ELA’s Race Equality Committee.
This piece reflects the views of the authors and not those of ELA.
This year marks the 75th anniversary of Windrush, and coincidentally, the National Health Service (NHS). Both milestones are inherently connected to issues of race and equality in the UK. These anniversaries provide a much-needed occasion to celebrate the stories and achievements of those involved. However, given the continuing discrimination still experienced by many ethnic minorities in the workplace, it is also a time to acknowledge, reflect and understand how and why race discrimination still exists within the NHS and other workplaces. It is also a time to re-examine how the law seeks to protect those who suffer discrimination and to consider what can be done to remove the barriers to equality that still exist.
The NHS and the Windrush Generation
The Empire Windrush first docked in Britain on 22 June 1948, and the NHS came into being just a few weeks later. The staffing needs at all levels in the newly formed NHS were filled by many from the Windrush Generation and migrants from other former colonies, many of whom came to Britain with the sole intention to work for the NHS as doctors, nurses, cooks, porters and health workers. Britain’s colonisation of countries in Africa and of India (amongst others) had already established connections between those countries and Britain, meaning that there were already sizeable numbers of people from colonised countries in Britain prior to 1948. However, the post-War need for workers in a range of different British sectors led to further significant migration to the UK, as larger numbers of people from once colonised countries, including South Asians, Caribbeans and Africans, sought a future in Britain. Soon, the political and social rationale underpinning migration in the UK shifted from a desire for a unified commonwealth, to a need for workers from overseas to respond to gaps in the British labour market, particularly in healthcare.
Arguably, without the Windrush Generation and their descendants, the NHS would not be functioning as we know it today (not least during the Covid-19 pandemic). Almost one quarter of the NHS’ workforce and 42% of medical staff is made up of black and minority ethnic (BME) individuals.[1] The NHS is also the largest employer in Europe of people from a BME background.[2]
Development of legislation on race equality, post-Windrush
Despite their contribution to the NHS and other UK sectors, many from the Windrush Generation, their descendants and others who migrated to the UK prior to and after the Windrush Generation, faced significant discrimination and prejudice and this led to the introduction of legislation.
- 1965 and 1968 Race Relations Acts: the 1965 Act was the first UK legislation to make it unlawful to discriminate on the grounds of race, colour, nationality, or ethnic origin in public places. In 1968 a further Act outlawed discrimination within employment, housing, and advertising.
- 1976 Race Relations Act: this formed the basis of the discrimination law we know today, introducing the concept of indirect discrimination
- 2000 Race Relations (Amendment) Act: this amendment was introduced following the publication of the Macpherson report (see below). It strengthened the Race Relations Act 1976 by placing a duty on public authorities to promote race equality.
- 2010 Equality Act: this brought together all previous anti-discrimination legislation and made it illegal to discriminate on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
As well as legislation, there have been other key developments which have impacted on how we talk about race and ethnicity today, including more recently:
- 1993 Stephen Lawrence murder and the Macpherson report: Stephen Lawrence, a black teenager, was murdered in a racially motivated attack in London. There was public outrage at the police investigation (or lack of) that ensued, which led to the commissioning of the Macpherson Report. The report was published in 1999. It highlighted the concept of institutional racism, particularly in relation to the police, and made 70 recommendations for zero tolerance of racism in our society. Baroness Doreen Lawrence (Stephen’s mother) continues to tirelessly campaign for racial justice in the UK today.
- 2017: as part of the McGregor-Smith Review the government published a report considering the issues affecting BME groups in the workplace. The report was praised as a positive step towards improving inclusion and diversity in the workplace. However, there were criticisms that it did not go far enough in addressing systemic issues, such as unconscious bias.
- 2018: The Windrush scandal involved the wrongful detention and deportation of people from the Windrush generation. The government destroyed landing cards – historical documents evidencing individuals’ arrival in the UK. Many were subsequently denied access to healthcare, housing and employment and some were deported. Once the scandal became public, an inquiry and compensation scheme were launched, however, many remain uncompensated. At the time of writing, only 66% of claims have had a final decision and some of the individuals affected have died before receiving compensation.
- 2021/2022: saw the Sewell report and Government response. Following the racist and brutal murder of George Floyd in the USA, which caused public outcry, the government set up the Commission on Race and Ethnic Disparities. Its remit was to review why inequality exists in the UK. Questions were raised from many quarters as to the need for a further report given that the majority of recommendations in previous reports concerning race discrimination had not been implemented. Once published, the report was criticised for questioning the existence and impact of institutional racism and for presenting distorted evidence. However, this report did include some specific recommendations in relation to workplaces and the healthcare system, namely: (i) to improve understanding of the ethnicity pay gap in NHS England; and (ii) to establish an Office for Health Disparities. A response was published by the government in 2022 which some commentators saw as inadequately addressing the many criticisms made of this report.
Workforce Race Equality Standard (WRES) and other significant data
The NHS’ focus has also developed to try to tackle race discrimination. In 2015, the NHS took the positive step of introducing the Workforce Race Equality Standard (WRES), to try to ‘prompt an inquiry to better understand why..….BME staff often receive much poorer treatment than white staff in the workplace and to facilitate the closing of those gaps [in treatment]’[3].
Consequently, NHS Commissioners and NHS Healthcare Providers are required to implement WRES, and its standards are incorporated into the NHS standard employment contract. WRES requires NHS providers to show progress against several indicators of workforce equality and metrics are published in annual reports so that progress can be measured and quantified. Some headline data from the most recent (2022) report includes the following:
- BME staff comprised 24.2% of the workforce in 2022;
- White applicants are 1.54 times more likely to be appointed from shortlisting processes compared to BME applicants –there has been no overall improvement on these statistics over the previous seven years;
- 44.4% of BME staff believe their trust provides equal opportunities for career progression or promotion, compared with 58.7% of white staff; and
- BME board membership is 13.2%.
In addition, government data published about the NHS from June 2022[4] included the following:
- BME staff made up 15.0% of positions at managerial level, and just 11.3% at senior managerial level;
- for every BME group, there was a higher percentage of staff in manager roles than there were in senior manager roles;
- for white staff, there was a higher percentage of staff in senior manager roles than manager roles.
It is also worth noting that the British Medical Association reported that 85% of the doctors who died from COVID-19 were from ethnic minority backgrounds. The BMA’s members suggested that the reasons for this were that BME doctors were more likely to feel pressured to work without adequate PPE and were more reluctant to raise safety concerns for fear of recrimination or their careers being impacted. [5]
Ms A Cox -v- NHS Commissioning Board (known as NHS England)
Notwithstanding WRES and other initiatives adopted by the NHS, the well-publicised recent (albeit first instance) decision of Ms A Cox -v- NHS Commissioning Board[6] shows that the NHS’ attempt to eradicate racism still has some way to go.
Ms Cox was a senior Black nurse who successfully brought claims for direct race discrimination, harassment related to race, victimisation and whistleblowing detriment concerning her treatment at work. The ET found that Ms Cox was consistently marginalised, undermined, and ignored and that her manager did not value her position on the BME Strategic Advisory Group. The Tribunal found Ms Cox’s manager went to ‘some great length’ to circumvent Ms Cox’s involvement in key decisions and team activities e.g. when vacancies arose within Ms Cox’s team she was not informed that a recruitment process had begun nor informed of any of the preparatory steps.
In relation to the internal investigations into Ms Cox’s grievance conducted by the NHS the ET found it: “failed to deal with all material issues… any possibility of race discrimination is not addressed beyond a short statement to the effect that there was no evidence of any actions or behaviours having been deliberate on the grounds of race. The Tribunal considers this… woefully inadequate – it fails to consider or address whether certain actions may have been subconscious bias or racially motivated… no attempt to examine whether there was any pattern of behaviour at play or actions which, taken together, might suggest something more at work than poor management decisions. Nor did the grievance outcome draw any inference from the material before it, instead setting the bar high, namely that it needed to see ‘deliberate discrimination… The Tribunal drew an inference that by not adopting a critical approach, the panel did not want to find any discrimination…”.
The treatment complained of took place during the Covid-19 pandemic, when the NHS was publicly advocating for equity and inclusion.
Cox - Lessons for the NHS (and employers more generally)
The case was an embarrassing exposé of what life in the NHS is like for some BME employees. In the wake of the ensuing adverse publicity, the NHS Chief Executive issued an apology to Ms Cox. Some lessons which the NHS (and employers generally) can take away when dealing with grievances where allegations of race discrimination/harassment are made, include:
- communicate with, support and involve the complainant in the process and after its conclusion – coming forward to raise a grievance is not a decision people take lightly;
- be impartial and conduct a thorough investigation - there needs to be a critical approach;
- test the evidence: don’t take it at face value;
- employers must always ask why? For example, if the hearing manager accepts that relationships in the department are strained or that conduct has happened as alleged, they must look behind it; assumptions should not be made that it is ‘just’ due to personality differences;
- the outcome must not only deal with any discrimination that occurred but what needs to be done to prevent any recurrence; and
- make informed recommendations e.g., mediation.
Windrush and NHS 100 - what can we hope to achieve in the next 25 years?
There is no denying that the law has developed significantly over the last 75 years to protect against racial discrimination and that society and workplaces generally have become more accepting of racial differences. The NHS has also taken significant steps to make its workplace more inclusive. That said, evidence from numerous reports, cases (such as Cox) and personal experiences, demonstrates that there is still a long way to go to eradicate racism and achieve equality in the workplace.
The Government’s recently published update on its progress in delivering its Inclusive Britain Action Plan suggests a number of initiatives. Whilst encouraging, it is questionable whether they go far enough to address systemic issues of racism, particularly as many of the initiatives simply involve the production of guidance for employers and other decision-makers who wish to make changes within their organisation, rather than preparing and implementing legislation that would require decision-makers to effect meaningful change
If we really want to achieve significant change in time for Windrush and NHS 100 then the introduction of mandatory ethnicity pay gap reporting and more robust, permissible positive action measures are just some of the steps that could be considered. Ethnicity pay gap reporting will be considered in more detail in a forthcoming article in ELA Briefing.
Action plans, policies and legislation alone are never enough to remove prejudices and discrimination; these need to be accompanied by education, empathy, a dismantling and rebuilding of the infrastructure that enables discrimination and an ongoing determination within workplaces to monitor, and critically evaluate progress.
As employment law practitioners, we are uniquely placed to recognise and champion race equality issues and advocate for the elimination of discrimination in the workplace.
If you’d like to know more about Windrush 75 and/or take part in talks, exhibitions or performances which mark this milestone throughout the year, please visit https://www.windrush75.org/