Over the past two years, we have advised a number of public sector employers on the use of the positive action provisions of the Equality Act 2010 with a view to improving workforce diversity. Positive action allows for the more favourable treatment of those with protected characteristics (e.g. because of their sex, age, race, disability or sexual orientation) when certain criteria apply. We have also worked closely with AFSA to provide guidance on the use of positive action by Fire and Rescue Services (FRS) which includes case studies drawn from FRS around the UK.

In speaking to FRS as part of our research, it became clear that efforts, generally, are currently targeted at improving the diversity of applicants and that the steps taken to date, such as outreach programmes, pre-recruitment fitness training and reviews of interview and recruitment processes, are beginning to have an impact. However, attracting a more diverse workforce is only part of the issue. The culture of an organisation has a huge part to play in the retention of employees and in this note we look at some of the trends which have emerged from the ‘People’ section from Tranches 1 and 2 of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services’ (HMICFRS) reports and the issues highlighted by the reports.

HMICFRS reports

HMICFRS assess FRS in three areas:

  • How effective they are in keeping people safe from fire and other risks;
  • How efficient they are in keeping people safe from fire and other risks; and
  • How well they look after their people.

Following publication of the reports from the first two Tranches, it became clear that whilst generally FRS score well on effectiveness and efficiency, there is much work to do in respect of ‘People’.

Under People, FRS have been scored across four areas:

  • Promoting the right values and culture;
  • Getting the right people with the right skills;
  • Ensuring fairness and promoting diversity; and
  • Managing performance & developing leaders.

We comment below on the findings which are of most relevance to diversity, inclusion and culture change.

FRS have also been given an overall People score. FRS are rated as:

  • Inadequate;
  • Requires Improvement;
  • Good; or
  • Outstanding.

To date, no FRS has achieved an overall Outstanding rating for People and of the 30 FRS inspected to date, 19 were rated as either Requiring Improvement or Inadequate overall.

Promoting the right values and cultures

HMICFRS found that the values and culture of FRS vary hugely. Whilst a minority are clear on their values and communicate these well to staff, a significant number have improvements to make with observations made by HMICFRS of staff using inappropriate language and autocratic and domineering behaviour by middle and senior managers.

The reports from Tranche 1 found that 25% of staff who responded to the inspection survey felt they had been bullied or harassed over the last year and 20% felt they had been discriminated against but only 8% had made formal reports. In Tranche 2, again 20% of staff surveyed felt they had been discriminated against at work and over half of those did not report the behaviour informally or formally.

The inspections found that staff often lacked trust in the grievance procedures of FRS and in most cases the process was perceived to be unfair, leading to a finding that FRS are not taking the opportunities available to learn and improve as a result of grievances. The reports refer to a ‘watch culture’ which can hinder openness. Addressing this culture is likely to be a priority for FRS which are seeking to foster openness. We suggest the use of informal grievance procedures should be encouraged, something we discuss further below.

We note that the summary of findings by HMICFRS does not refer to workplace mediation. Experience shows that the grievance process can create barriers/add to conflict which can hinder resolution of a workplace dispute whereas effective mediation, used in appropriate circumstances, can help the parties to come to a solution which gets to the bottom of the issue. In our discussions with FRS, we have been told that whilst mediation is available, it is rarely utilised but this is something which may change in addressing HMICFRS concerns about the grievance procedures at FRS.

The results from the Tranche 2 reports were encouraging for mental health compared to Tranche 1, and concluded that services are increasingly prioritising wellbeing and mental health support, although they suggested that most services would benefit from promoting this support to ensure that all staff are aware of it.

The reports recommended that services should provide mental health training for managers, as line managers reported that they were lacking in confidence when dealing with mental health issues. Research carried out for the NHS found that one in four people experience mental health issues each year and it is reported that mental ill health issues cost UK employers £34.9 billion in 2016/17. It is, therefore, crucial that FRS invest in this area and proactively support staff suffering with mental ill health.

Ensuring fairness and promoting diversity

HMICFRS commented that more needs to be done to improve diversity and communicate the benefits of, and need for, workforce diversity. There is a concern that staff do not understand the benefits of and need for workforce diversity and that sometimes this lack of understanding manifests in staff behaviours and attitudes inconsistent with an inclusive or open workplace.

In the discussions we have had with FRS which are utilising positive action, one of the points that has been most striking is the difference made by training staff in the importance of diversity and the role positive action has to play in improving diversity. We have heard that the introduction of positive action is met with reluctance often as a result of fear about what it means for existing staff and concern that the standard of new recruits will be lowered, something which is referred to in the Tranche 2 summary of findings. Training, education and involving more staff in the recruitment process, in the FRS we have spoken to, has helped to allay these fears.

In terms of achieving culture change in organisations, one effective action which many employers take is the provision of support groups and networks for groups including those with protected characteristics. HMICFRS found that fewer than half of FRS have staff support networks and we suggest that this should be a priority for FRS looking to address some of the People problems identified in the reports. One factor which seems to be pivotal to the success of showing the workforce the importance placed on diversity by an FRS is where heads of service are open allies and support these groups with regular attendance.

Managing performance and developing leaders

This was the lowest scoring sub-category of the ‘People’ strand with only seven FRS attaining a Good rating. In particular, many reports found that staff had limited trust in the appraisal system feeling that performance reviews were of little value.

HMICFRS also identified that more needs to be done to ensure that the promotion process is fair. We suggest that in taking steps to address this point, FRS may wish to review the role of positive action and section 159 of the Equality Act 2010 in the promotion process. Where FRS seek to rely on section 159, this should be made clear to staff.

Section 159 of the Equality Act enables employers to use positive action in a recruitment and promotion context meaning that employers can select a candidate with a protected characteristic over a candidate who does not have that characteristic where:

  • candidates are as qualified as each other;
  • the employer does not have a policy of treating people with a protected characteristic more favourably; and
  • acting in this way is a proportionate means of achieving a legitimate aim.

The FRS we have spoken to which currently utilise positive action report that existing staff have concerns about its use and the suspicion that someone with a protected characteristic may be selected over them despite the fact that they are not as qualified. It is important to be clear about how you assess whether somebody is ‘equally qualified,’ as section 159 cannot be relied upon when a less qualified candidate is selected. To support employers, a set of criteria can be established which can take into account a candidate’s overall ability, competence and professional experience together with formal or academic qualifications. An employer can also look at other qualities which would make a person suitable for a job. For example, there may be more subjective elements that come into play, such as assessing the ability to work as part of a team, and this is acceptable.

Recruiting the right leaders who believe that the diversity of the FRS workforce should be a priority may form part of any recruitment or promotion process. In order to recruit or promote the right person into the job, one FRS told us that an essential part of the process is a discussion with individuals about their values and that this includes questions about how they would promote diversity in the workforce.

Next steps

The reasons which sit behind the scores in the reports are likely to be complex and some FRS may feel that the score achieved does not accurately reflect their approach to their staff. However, where FRS want to improve their ratings, it seems clear that they will need to invest a considerable amount of time in addressing the issues raised. Diversity and inclusion is one part of the wider issue of culture change but the benefits of recruiting and supporting a more diverse workforce are beyond doubt.

The bullying and harassment findings are concerning in that it appears few people feel they can raise grievances. In other areas of the public sector, for example the NHS, there is a growing interest in ‘just cultures’ which involve a move towards resolving matters informally, acknowledging that matters can be addressed more effectively this way rather than the traditional adversarial approach. The results from a number of NHS organisations which have adopted this approach are encouraging and this, together with the use of workplace mediation, may be something FRS wish to explore further in driving forward change.

We are aware of the work which is currently taking place in FRS to improve diversity but we are also conscious through our discussions with equality and diversity leads that there is more work to be done in creating an open and inclusive environment. If you would like to discuss any of the issues raised in this note and how we can assist with the culture change process, please contact Nicky Green, Paul McFarlane or Andy Uttley.