Advice for the current times – Your quick guide to ‘Diversity & Inclusion’ in schools and ‘Your Wellbeing’ – setting the baseline
An on-demand event jointly hosted by the NAHT and Discovery Education.
Andrew Hammond and Guy Dudley discussed the issues currently facing school leaders and those teaching and working in schools.
In this session, we covered:
- Your quick guide to ‘Diversity & Inclusion’ in schools
- ‘Your Wellbeing’ – setting the baseline
And finally, we took you on a whistle-stop tour of our latest newsletter, our fifth, that bridges the gap between these webinars and brings you up to date with the latest news and developments in the school and college sectors.
- Pathway Advice Hub – Newsletter 5
Many of these newsletter topics have been supported by wider advice pieces that can be found on Pathway’s Advice Hub where you will have access to an on-line library of information, advice and guidance to support you in your professional role and your continuing professional and personal development and empowerment.
If you’re a Pathway subscriber, you can access the latest Newsletter in the Pathway Advice Hub.
Your quick guide to ‘Diversity & Inclusion’ in schools
Your duty as an employer – compliance
All employers must work in step and comply with the Equality Act 2010 (EA) which makes it clear that it is unlawful for an employer to discriminate against, harass or victimise employees and those seeking work.
Schools (as employers) are also legally responsible for acts of discrimination, harassment or victimisation committed by their own employees during their employment and others working under their authority and control.
What is protected?
The broad aim of the EA is to outlaw ‘less favourable treatment’ relating to the 9 protected characteristics: Age; Disability; Gender reassignment; Marriage and civil partnership; Pregnancy and maternity; Sex; Sexual orientation; Race; Religion or belief.
The four forms of discrimination – direct discrimination; indirect discrimination; victimisation and harassment.
Direct discrimination: this type of discrimination occurs where, because of a protected characteristic, a person treats another person less favourably than they treat or would treat others.
Here are two examples of direct discrimination are:
- A teaching assistant, David, is turned down for a promotion that involves organising and running sporting events. David is gay and finds out that he was turned down for this role because of concerns about his sexuality. This is direct discrimination against an employee in relation to the protected characteristic of sexual orientation.
- A post is advertised for a new ICT teacher. Susan applies for this role and is 60 years old. If Susan wasn’t considered for the job because it is assumed that she is not as familiar or comfortable with new technology compared with a younger person, then this would be direct discrimination against someone seeking work in relation to the protected characteristic of age.
Direct discrimination can include ‘associative discrimination’, where a person suffers less favourable treatment because of their association with another who has the protected characteristic and ‘perception discrimination’, where a person suffers less favourable treatment due to the mistaken belief that they have the protected characteristic, for example, less favourable treatment because of the mistaken belief that someone is gay.
Here’s are examples of ‘associative’ and ‘perception’ discrimination:
- A teacher in the school, Laura, has been told she will be promoted. Just before this happens, she discloses that her daughter is disabled. On learning this, the school withdraws the promotion, claiming Laura would be unable to focus entirely on the new role due to a perceived duty of care for her daughter. This would be associative discrimination of an employee because of Laura’s association with a disability.
- Taking the example above of David suffering direct discrimination, this would have still occurred in relation to the way David was treated even if he was not actually gay, just thought to be gay. This would be perception discrimination of an employee in relation to the protected characteristic of sexual orientation.
Indirect discrimination: this type of discrimination can occur where a ’provision, criterion or practice’ [i.e. a policy, procedure etc…] by the employer impacts negatively on workers sharing a protected characteristic.
An employee or job applicant claiming indirect discrimination must show how they have been, or could be, personally disadvantaged. They must also show how the application of the ‘provision, criterion or practice’ has or might disproportionately disadvantage other employees or job candidates with the same protected characteristic.
The EA 2010 does not define ‘provision, criterion or practice’. This means it can have a very broad meaning. As such, this means the employee would only need to establish that something at work, whether a rule, a practice, a requirement or a condition, puts them at a disadvantage. Indirect discrimination can be less easy to spot and is often unintended.
Three examples of this sort of discrimination are:
- As an employer, you introduce a new dress code. As part of the rules, you decide to prohibit braided hairstyles. This could amount to indirect race discrimination as it is more likely that these hairstyles will be worn by certain racial groups.
- A requirement for a job which is advertised is that all applicants have ten years’ experience in the field. This requirement would mean that a young person could be well qualified but ineligible to apply for the job. This could amount to indirect discrimination for job seekers in relation to the protected characteristic of age.
- A requirement for all employees is introduced which stipulates that they will work late or travel away from home for work at short notice. Although this applies to everyone in the same way, this could potentially put a mother of a young child at a disadvantage as she would need to make childcare arrangements. Statistics show that it is women who act as the main carer to young children in the UK. This could, therefore, be seen to be indirect discrimination based on her sex.
In some limited circumstances, indirect discrimination may be justified if it is ‘a proportionate means of achieving a legitimate aim’.
Victimisation: the law in this area aims to protect someone who suffers as a result, for example, of a complaint about discrimination having been made or for bringing discrimination proceedings, or where someone has helped another individual who has been the victim of discrimination in the workplace.
Here are two examples of victimisation:
- An employer threatens to dismiss Sam because it’s thought that she intends to support her colleague’s sexual harassment claim. This threat could amount to Sam being victimised, even though the employer has not actually taken any action to dismiss her and had no intention of doing so.
- A teacher, Troy, raises a grievance about ageist and sexist comments being made in the staff room – action is taken to stop this. While ageist and sexist comments are no longer made, Troy has noticed that his team are now treating him differently than they were before, and they no longer invite him to any work socials, which were a regular weekly event. They have also stopped talking when he enters the staff room or started speaking in hushed voices when he’s around them.
Behaviour in the staffroom can often cause problems; this is where members of staff can relax and may make ‘jokey’ comments that could cause offence to others even if offence is not intended. Depending on the comments made, it could be possible that this sort of behaviour could reach the threshold of harassment.
Harassment: harassment refers to unwanted conduct which violates someone’s dignity or creates an intimidating, degrading, humiliating or offensive environment. This is where someone suffers unwanted conduct because of a ‘protected characteristic’.
Examples of harassment could include blocking opportunities or making threats about job security; receiving unwanted sexual advances from a colleague; being subjected to homophobic comments; being teased about a disability; receiving offensive materials, such as emails with sexual content. Behaviour doesn’t have to be directed towards you to qualify as harassment. For example, if your colleagues make discriminatory comments or jokes within your earshot, this could amount to harassment.
The Public Sector Equality Duty
This is a statutory duty for all public bodies, including schools, to have due regard to:
- eliminate unlawful discrimination
- advance equality of opportunity between people who share a protected characteristic and those who don’t
- foster or encourage good relations between people who share a protected characteristic and those who don’t.
Having due regard means schools must consciously consider or think about the need to do the three things set out in the public sector equality duty. If challenged, it would be the courts who would decide if a school has done enough to comply with the duty.
In addition, The Equality Act 2010 (Specific Duties) Regulations 2011 requires schools to comply with two additional, specific duties, which are intended to help them comply with the Public Sector Equality Duty.
- Publish information – every school has to publish information to show it is complying with the duty on an annual basis
- Equality objectives – schools must prepare and publish one or more objectives which further the three aims of the equality duty.
Supporting diversity and inclusion
A commitment to diversity and inclusion can be grounded in, but not necessarily limited to, an employer’s responsibilities under equality legislation.
There is a clear moral case for going beyond the legal minimum to promote diversity and inclusion.
What do we mean by the terms ‘diversity’ and ‘inclusion’?
Diversity is about each individual in the school; their unique experiences, qualities and characteristics.
Inclusion is about everyone; it’s about creating a culture that values multiple differences.
A commitment to inclusion requires a genuine effort by the senior leadership team in a school to ensure that everyone is supported and respected, regardless of their differences.
Giving a clear commitment demonstrates that a key guiding principle of the school vision is to create an inclusive environment where all individuals are valued and enabled to succeed. It could also set out the school’s aims of embedding inclusion in its practice and culture to provide a great pupil experience and to be an employer of choice.
So, what does good practice look like?
- Build ‘diversity and inclusion’ practice into recruitment, promotion and career development activities.
- Provoke open discussions with employees in the school about diversity and inclusion – an idea for an INSET day perhaps.
- Consider a programme of ‘reverse mentoring’ – the idea behind such a programme is that it equips senior leadership teams with a better understanding of the experiences of colleagues from, for example, Black, Asian and minority ethnic (BAME) backgrounds. In some instances, senior leaders have been paired with junior BAME mentors who discuss their experiences at work and in life, sharing their personal stories about inclusion at work. LGBT+ and gender could also feature in a programme of ‘reverse mentoring’.
- Staff development – you may expect all employees in a school to behave appropriately, but this may not be as clearly understood as you expect.
Diversity and inclusion – putting this at the heart of the school
Only when all members of staff can be their true selves at work will the school benefit from the best everyone can be.
True cultural change in any organisation takes time and will only be achieved by small and consistent changes. As a school leader, you are the exemplar of behaviour and it is within your control to set the bar in your school.
Diversity and inclusion – what to do when things go wrong
As an employer, you have a responsibility to deal with a complaint in a way that establishes if there has been unlawful discrimination, and, if there has, to put the situation right.
Responding to a complaint
If a complaint is made about workplace discrimination, you must take the person that made the complaint seriously, keep an open mind and treat the person fairly.
Taking the advice of your HR service, you can respond in one of two ways to try to resolve the situation:
- By using your grievance procedures.
If you are the subject of a complaint, you should inform HR, so they can remove you from the investigation and determination process to ensure that an objective approach is taken and that fair treatment prevails.
If an informal approach is used, be sure to take HR advice on this, as the complaint can often be seen to be treated as less serious, and as such, mistakes can be made in terms of process that could be used against the school at some later date.
Some sensible steps you could take are:
- Engage HR and follow their advice
- Keep a clear note of what steps you are taking and why
- If the complaint is about the way you or the school does something, think about changing this – sometimes a simple change in practice can alleviate a member of staff’s concerns
- If a complaint relates to other members of staff and their behaviour towards the complainant, then it may help to speak informally to the person or people involved before getting into formal procedures – however, this should only be done if the person who complained has agreed to this
- Make sure to explain to the person who complained what the result of their informal complaint is, otherwise they may make a formal complaint or bring an employment tribunal claim.
Handling a grievance
If a formal grievance is raised that relates to discrimination and you are not precluded from investigating, you should, with the support of HR:
- ensure that you follow the requirements of your school’s grievance policy
- keep an open mind – discrimination situations are often very individual and what may, or may not, be felt to be discriminatory can change over time, and from person to person
- be respectful to the member of staff who raised the complaint – experiencing or witnessing discrimination can be very upsetting
- investigate the matter thoroughly and be tactful when looking for evidence that supports or undermines the grievance
- conclude and/or resolve the matter at this stage – no further action may be taken, but it is always useful to remember that an employee who has raised a grievance about discrimination could appeal the decision or take the matter to an employment tribunal if they do not believe their grievance has been resolved adequately.
While a matter is being investigated, it might be necessary to suspend a member of staff, and in some cases, it may be possible to transfer that member of staff to another school or have them work off-site. Given the seriousness of this step, you should ensure HR supports this decision.
What if you find that there has been unlawful discrimination?
The action you take will depend on the specific details of the case and its seriousness. You should take into consideration any underlying circumstances and the outcome of previous similar cases, and follow the advice given to you by HR.
The following actions are the most common actions taken in these circumstances:
- some form of alternative dispute resolution, say, mediation
- equality training for the person or people who discriminated
- disciplinary action
Consider a ‘lessons for the future’ approach
Regardless of the outcome of an informal or formal approach, it is very likely there will be lessons that can be learned going forward. Whether this is something as simple as the fact that more equality training is needed, or whether more fundamental concerns are uncovered. It’s sensible after this sort of process to consider what could have been done differently (or better) next time.
Reflecting on whether there is anything further you can to do embed within the school a culture of diversity and inclusion is time well spent. It not only creates a great place to work for all your staff and adds to your ability to attract new staff, but it may also reduce the instances of complaints about discrimination.
Complaints of this nature are time consuming, can create real upset in the workplace for employees, and can also cost the school money if they end up at an employment tribunal – please take advice from HR if you receive a complaint of this nature – you should not go this alone!
Your wellbeing – setting the baseline
You may or may not have heard of the ‘School Teachers’ Pay and Conditions Document’, aka, the STPCD and ‘the document’.
It is produced each September by the Department for Education and is available online if you click on this link
It’s 84 pages long and contains the provisions relating to the statutory conditions of employment of school teachers in England.
Wales has its own STPCD which you can find by clicking on this link
Northern Ireland also has its own version which you read by clicking here
If we accept that the development of most activities generally follow 4 organic steps: forming, storming, norming and performing, this session shines a light of the first and second of these steps.
To save you reading all 84 pages, just turn to Part 7 [page 43] of the English STPCD [England] or equivalent in Wales and Northern Ireland – this part of the STPCD sets out the contractual framework within which all teachers, middle leaders and head teachers operate, their statutory responsibilities and their statutory entitlements [only 9 pages!]. It’s the wellbeing-related statutory entitlements which I’d like to highlight here.
So what are the statutory entitlements for head teachers and their wellbeing (page 45, in my own words):
- Dedicated headship time – head teachers are entitled to a reasonable amount of time to discharge their leadership and management responsibilities
- Daily break – head teachers are entitled to a break of reasonable length in the course of each school day and must arrange for a suitable person to deputise for them during that break
And, what are the statutory entitlements for all other teachers, including middle leaders?
A couple of ‘staters for ten’: no teacher is required to work at weekends, on bank holidays or to carry out midday supervision.
- Daily break – a teacher who is required to be available for work for more than one school session, on any school day, must be allowed one break of reasonable length, either between school sessions or between the hours of 12-2pm. Middle leaders are entitled to a break of reasonable length as near as possible to the middle of each school day.
- Work-life balance – governing bodies and head teachers must have regard to the need for the head teacher and teachers to be able to achieve a satisfactory work-life balance. In having regard to this, the provisions of the Working Time Regulations 1998 apply [a maximum 48-hour working week, measured over a 17-week reference period].
- PPA time – this is set at no less than 10% of a teacher’s timetabled teaching time – a teacher cannot be required to carry out any other duties during their PPA time.
- Management time – a teacher with management or leadership responsibilities, is entitled, to a reasonable amount of time during school sessions for the purpose of carrying out those responsibilities.
- Cover – teachers should only provide cover, rarely, and only in circumstances that are not foreseeable.
- Administration – teachers should not be routinely required to carry out administrative or clerical tasks which do not call for the exercise of a teacher’s professional skills and judgement.
- Training and development – all teachers should have access to advice, training and developmental opportunities appropriate to their needs, including those identified in objectives or in appraisal statements or reports.
If you would like further information about the Pathway programme please visit www.discoveryeducation.co.uk/NAHT