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Ethnic Monitoring, Gypsies and Travellers

26 July 2004

Sasha Barton1

Introduction

Ethnic monitoring plays an important role in the UK in providing a source of evidence that can be used to tackle unlawful racial discrimination and also to develop policies and practices that promote race equality and good race relations. Although, in many parts of Europe, ethnic monitoring is feared, or even prohibited, the experience of ethnic monitoring in the UK has been positive. The Commission for Racial Equality (CRE), a publicly funded body set up under the Race Relations Act of 1976 to tackle racial discrimination and promote equality of opportunity and good race relations, believes that, provided the appropriate safeguards are in place, ethnic monitoring is a powerful lever to bring reform. The CRE provides advice on ethnic monitoring and on what these safeguards might be.

Statistics have been used effectively in the courts to challenge discrimination, and ethnic monitoring has been a key tool to drive changes in the public sector, in both employment and service delivery – in central government, education, local government, health, criminal justice, and a wide range of other areas. However, Britain's Gypsy and Traveller communities have not yet benefited from ethnic monitoring. There is little reliable data on these groups and this means that we do not fully know about the level of deprivation and discrimination that Gypsies and Travellers face. However, from the word-of-mouth evidence, and the scattered data that we do have, we can get an idea of the level of disadvantage that exists:

  • Gypsies and Travellers are the group most at risk in the education system, and by halfway through secondary school only 20 percent are in regular school attendance;
     
  • Gypsies and Travellers have poor health, with the life expectancy rates 10 years less for men and 12 years less for women than for other ethnic groups;
     
  • There are high levels of public hostility towards Gypsies and Travellers: In a recent poll, over one third of those questioned said that they felt personally prejudiced against Gypsies and Travellers – even more than were prejudiced against asylum seekers and refugees.

This article will start by looking at the successful use of ethnic monitoring in Britain, how it has been used to prove cases of discrimination, to inform and drive forward developments in policy and practice, and what safeguards are in place. It will then look at what data is collected on Gypsies and Travellers and what changes need to take place if these communities are to benefit from ethnic monitoring as other communities have done.

Ethnic Monitoring and the Courts

Ethnic monitoring has been important in Britain in proving cases of discrimination. In cases of direct discrimination, when a person claims they have been treated less favourably on racial grounds than another person is or would be treated in the same or similar circumstances, ethnic monitoring statistics are not so relevant in actually proving discrimination, but can be an important part of the background to establishing a case of discrimination. The example below illustrates the use of ethnic monitoring data in a direct discrimination case:

In West Midlands Passenger Transport Executive v Singh, Mr Singh complained of racial discrimination after he applied for promotion to senior inspector but was unsuccessful. The employer, West Midlands Passenger Transport Executive, denied racial discrimination, showing its equal opportunities policy and the system it had of ethnic monitoring of applications and appointments. The employer provided details of the ethnic origins, qualifications and experience of all applicants for the job of senior inspector, but refused to give details of the ethnic origins of the applicants for, and those appointed to, posts within a band of grades broadly comparable to senior inspector during the period since the equal opportunities policy was adopted. The Court of appeal ruled that the applicant was entitled to this information and that this material was relevant as it would help to determine  whether the employers discriminated against Mr Singh. (West Midlands Passenger Transport Executive v Jaquant Singh [1988] 1 WLR 730). Important points arising from this case are that statistical evidence can be used to establish a clear pattern – in this case of the treatment of an ethnic minority staff regularly failing to obtain promotion – and that such a pattern indicates possible discrimination. While the statistics in themselves are not conclusive, they show disparities, and without a satisfactory explanation, it is reasonable to conclude that discrimination has occurred.Mrs Edwards, a single parent with a young child, was employed as a train operator. Her rostering arrangements allowed her to be at home in the mornings and evenings until her employers, London Underground Ltd., introduced a new flexible shift system as part of a cost-saving plan, meaning that she would either have to work mornings and evenings, or earn less money for longer hours. Unable to reach an agreement with her managers despite union involvement, Mrs Edwards resigned and claimed unlawful sex discrimination. An industrial tribunal ruled in her favour because a  considerably smaller proportion of female single parents than male single parents could comply with the rostering condition. London Underground appealed on the grounds that the comparator should not have been male single parents but all train operators to whom the new arrangements applied. A second industrial tribunal found that 100% of the 2,023 male train operators would comply with the new rostering conditions, but Mrs Edwards was the only one of the 21 female train operators who complained that she could not comply, so that the proportion of women who could comply was 95.2%. The tribunal concluded that taking into account the few female train operators and also that females are more likely to be single parents, considerably fewer females could comply with the condition and that the employers should have altered their new plans to accommodate the applicant. (London Underground LTD v Edwards [1998] IRLR 364)

In cases of indirect discrimination, ethnic monitoring statistics have been important in proving in the courts that discrimination has occurred. Indirect discrimination occurs when a policy or rule has a disproportionate impact on one group, and there is no acceptable reason for this condition. The example below is a sex discrimination case (statistics have been far more frequently used in sex discrimination cases than in race discrimination cases over the last few years) but demonstrates the effective use of monitoring in establishing discrimination:

In July 2003, amendments were made to the Race Relations Act2 to introduce a second definition of indirect discrimination3, in order to comply with the Race Directive 2000. The pre-2003 definition still applies to cases based on colour and nationality, but for cases taken on the grounds of race, ethnic or national origins, a new definition applies. The new definition of indirect discrimination is broader. It will cover informal practices in addition to more formal ones, and it does not require statistical evidence of disadvantage. So ethnic monitoring may play less of a role in the future in such cases.

It is important to note, however, that this broader definition only applies to certain provisions of the Race Relations Act of 1976, and that in those other provisions, statistical evidence will remain important.

Ethnic Monitoring and Equal Opportunities Policies and Practices

Ethnic monitoring also plays a key role in the development of equal opportunities policies and practices. It has provided powerful evidence that has significantly influenced government policy and practice in a number of areas.

  • All central government departments collect statistics on the ethnicity of their staff. On the basis of these statistics, targets are set for increased representation. Government statistics published in 2003 revealed that five central government departments had no senior ethnic minority staff, though, with the exception of the Ministry of Defence, all departments had ethnic minorities in their total workforces in numbers equivalent to minority representation among the population at large. On the basis of this, CRE questioned whether the target set by Whitehall was sufficiently challenging departments to guarantee sufficient minority representation, and it is currently working with the government to assist in improving the ethnic staff profile.
     
  • A Cabinet Office report "Ethnic Minorities and the Labour Market" of March 2003,4 looked in detail at the variation of labour market achievement by ethnic group through analysing ethnic statistics. Key findings include: Indians and Chinese are doing well in school and often out-perform majority whites in schools and in the labour market. Pakistanis, Bangladeshis and Black Caribbeans experience far higher unemployment and lower earnings. All ethnic minority groups are not doing as well as they should be in the labour market, given their qualifications and other factors. Following the publication of the report, a cross-Whitehall taskforce was established and is taking forward key recommendations of the report and tackling the inequalities identified. 
     
  • People from ethnic minority groups experience much worse health than the white British majority in Britain. Disproportionalities are particularly pronounced in mental health. Research in 2003 revealed that black people constituted 30 percent of the patient group in medium secure services and 16 percent of high secure services; black people were over six times more likely than the majority population to be detained under the Mental Health Act; and women born in India and East Africa had a 40 percent higher suicide rate than those born in England and Wales. In light of these findings, the Department of Health launched a consultation framework for black and ethnic minorities identifying priority areas for improvement. Further work is now underway to take the agenda forward.
     
  • Schools in England and Wales are now obliged to include Roma/Gypsy and Irish Traveller categories in the Pupil Level Annual School Census. This means that, for the first time, data on attendance and attainment is being collected for these groups. Initial findings, though based on small numbers, underscore the need for targeted action. At the age of 15-16, attainment for Gypsy pupils is less than half the national average and around half that of Bangladeshi and Pakistani pupils (the groups classed as amongst the lowest achievers)5. The Department for Education and Skills is currently developing targeted programmes of work to raise ethnic minority achievement, and the new data has been influential in ensuring that government focuses its efforts on Gypsies and Travellers within this wider programme.

The Race Equality Duty

In the public sector, increased emphasis has been placed on ethnic monitoring in employment and service delivery through recent changes to the Race Relations Act of 1976.

These changes came about after Stephen Lawrence, a black teenager, was killed by white youth. An inquiry into the killing revealed the presence of institutional racism in parts of the police service. Institutional racism was defined by the Lawrence Inquiry as "the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin". The report also highlighted the failure of the police to acknowledge the racial motivation of the offence and the lack of support and respect accorded to the teenager's parents.

The Race Relations (Amendment) Act of 2000 was the government's legislative response to the inquiry – the basic aim was to plan potential racism out of public sector systems by taking steps to proactively identify ethnic disproportionalities and to address the barriers to equality.

The government, quite rightly, did not confine the new legislative requirements to policing, or even the criminal justice system, but applied them across the public sector. The Race Relations Act of 1976 as amended by the Race Relations (Amendment) Act 2000 places a positive legal obligation on over 40,000 public bodies, including local authorities, police, schools, higher and further educational institutions, health bodies and central government to "have due regard to the need to eliminate unlawful discrimination, to promote equality of opportunity and good relations between persons of different racial groups" in carrying out all their functions ("the race equality duty").

In order to assist bodies to better comply with the race equality duty, certain agencies have been given additional specific duties. The main public authorities, including local authorities, police, health authorities and central government, have specific duties to prepare and publish a race equality scheme. In this scheme they are obliged to list the functions and policies they have assessed as being relevant to race equality, set out arrangements for consulting on and assessing the impact of new and proposed policies, monitor the impact of existing policies and ensure public access to information and training staff on duty. In addition such bodies have a separate duty to monitor their employment practices.

The additional duties for schools differ: Schools must publish a race equality policy instead of a scheme and assess and monitor the impact of their policies on pupils, staff and parents of different racial groups, in particular, the impact on the attainment levels of such pupils. They must also take reasonably practicable steps to publish annually the results of the school monitoring. Some public authorities, such as parish councils, only have to comply with the race equality duty and are not obliged to comply with the additional duties.

The race equality duty, supported by the additional duties, requires public bodies to be proactive about race equality. Ethnic monitoring is a critical tool underpinning this proactive approach. As was outlined above, many bodies are now required to collect data on employment, and they are to make arrangements to monitor the impact that their policies have on different racial groups. This will mean collecting data on service delivery and other functions. If a public body finds that a policy has an adverse impact on particular racial groups, then, if this impact cannot be justified within the wider policy aim, the body will need to make changes to mitigate this adverse impact. For example, if a local authority was collecting data on user satisfaction of particular relevant services and analysing this by ethnic group, it may discover that a particular group or groups was dissatisfied with the services offered or under-represented as users of particular services in comparison with local census data. The authority would need to look further into the reasons for this disproportionality and make necessary changes if the reason could not be justified. This places a new focus on ethnic monitoring, and it shifts the focus further onto the proactive use of ethnic data to promote race equality.

Some Necessary Safeguards

To ensure that ethnic monitoring is not misused and that people's rights are protected, safeguards are necessary. The CRE has recently published guidance on ethnic monitoring6, setting out the measures that should be in place to ensure that this happens in practice. Most importantly, monitoring must be carried out in accordance with the Data Protection Act of 1998. This legislation enumerates rights for individuals about whom data is held and gives duties to those who hold data. Key points to be aware of are listed below:

  • Personal data must be processed fairly, and sensitive personal data, which includes information about racial or ethnic background, can only be processed if it meets one or a set of conditions set out in the act. One such condition is that such data is needed to carry out equal opportunities monitoring. 
  • Data subjects' rights and freedoms must be protected – s/he does not need to give permission for data to be processed, but if the data will be used for another reason, then permission should be sought.
  • Those collecting the data should try to make the process fair by making sure that the data subject knows who the person/organisation collecting the data is, that they know why the data is being processed and that they have access to any other important information.
  • Data can only be collected for lawful and specified purposes and should not be used in other ways that the subject is not aware of.
  • The data collected must be relevant, not excessive and must also be adequate to make useful findings;
  • Data should be accurate and kept up-to-date and not retained for longer than necessary.
  • Personal data must be kept securely, so there should be security systems and trusted staff.
  • Data subjects must not be identifiable from published data, so, for example, if the numbers were so small that an individual could be identified, this would not be sufficient.
  • A person has the right to object to racial/ethnic data collection on certain grounds – if, for example, it would cause him/her excessive distress.

The CRE's guidance also covers a wide range of issues including which categories should be included, how to compare data, how data should be collected, analysed and interpreted, how action should be taken on the basis of this data and targets set.

Ethnic Monitoring, Gypsies and Travellers

Gypsies and Travellers are not included in the national, 10-year census, and, since most public bodies base their own monitoring categories on those of the census, they are not monitored at the local level (other than in education, as set out above). Similarly, in almost every sector, research fails to generate statistics on Gypsies and Travellers. Effective implementation of the race equality duty relies on ethnic monitoring, and unless Gypsies and Travellers are monitored by public authorities, they may not fully benefit from the duty (even though lack of data in no way releases authorities from their obligations in relation to these groups). The CRE's advice is that authorities should base their monitoring categories on the Census 2001 categories, but adapt their ethnic classification system to the particular local circumstances, so that it includes the particular ethnic groups they employ or serve. So, for example, Gypsies and Irish Travellers could be included as a specific sub-category of "white other". However, the majority of authorities are not ethnically monitoring Gypsies and Travellers. And this means that there is no authoritative evidence to act as a driver for improvement, so Gypsies' and Travellers' needs are likely to be overlooked.

Take policing. We know, for example, that ethnic minorities are the most likely to be the victim of racist incident. In fact, the 2000 British Crime survey found that the risk of victimisation for black people was six times more than for white people, nine times more for Indians and 10 times more for Pakistanis and Bangladeshis. But the Gypsies and Travellers who were victims of a racist incident are hidden somewhere among the statistics for white people. Most police forces are thus unable to identify how many racist incidents involve Gypsies and Travellers, nor how many stops and searches are carried out on Gypsies. The official report, which all criminal justice agencies are required to complete annually on criminal justice outcomes by racial group, may make no reference to Gypsies and Travellers at all. This picture is replicated across the public sector.

It is essential that more comprehensive data is collected across the board on Gypsies and Travellers, if accurate analysis is to be made and targets set for improvement. The Commission for Racial Equality argues that a category should be included for Gypsies and Irish Travellers in the next Census (2011), that public authorities should be encouraged at the local level to collect data on Gypsies and Travellers, and that government departments should set specific targets for improvements in each sector. The CRE recently consulted on a three-year Gypsies and Travellers Strategy, setting out how it plans to improve equality of opportunity for Gypsies and Travellers over the next three years. Work around improved ethnic monitoring is one key area, and the CRE has already begun discussions with the Office for National Statistics, which is responsible for setting the census categories.

However, while there is a major need for more accurate data, the issue of data collection is complicated. The level of social exclusion experienced by Gypsies and Travellers is such that, even if there were categories identifying them in local and national monitoring systems, many would lack the confidence to self-ascribe their ethnicity, fearing that this in turn would lead to further disadvantage and discrimination. When the CRE recently consulted on its draft strategy, this point was made emphatically. It was also suggested that monitoring would need to be carried out sensitively by members of Gypsy and Traveller communities or trusted third parties, and that the full benefits of monitoring would need to be explained and demonstrated in practice for any system to be workable.

Conclusion

Experience in the UK has shown that ethnic monitoring can be a key tool in identifying inequalities, in winning discrimination cases and in developing targeted action to promote equal opportunities for disadvantaged racial groups. Gypsies and Travellers have not as yet benefited from this approach, and the extension of ethnic monitoring to these communities is a key gap that needs to be filled. However, the development of a more robust monitoring system for Gypsies and Travellers must be accompanied by a campaign to raise awareness amongst Gypsies and Travellers about the reasons for, and benefits of, ethnic monitoring. It must also be sensitively established, with safeguards in place to ensure that monitoring does not risk further social exclusion and disadvantage.

Endnotes:

  1. Sasha Barton has been working at the UK Commission for Racial Equality (CRE) since January 2002. Initially, she focused on public policy in local government, education and housing sector. Now, working in the Strategy and Delivery Unit, she guides Gypsy and Traveller Policy. She recently developed a three year Gypsies and Travellers strategy for the CRE, covering all aspects of CRE’s work across England. She is now responsible for its implementation.
  2. The Race Relations Act of 1976 (Amendment) Regulations 2003.
  3. The definition that applies to colour and nationality only (the pre-2003 definition) is that person indirectly discriminates against another…if “he applies to that other a requirement or condition which he applies or would apply equally to persons of the same group as that other but which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and which is to the detriment of that other because he cannot comply with it”. The definition which applies to race or ethnic or national origins only in relation to certainRRA provisions (as a result of 2003 regulations) is that a person indirectly discriminates if “he applies to that other a provision, criterion or practice which he applies or would apply equally to persons not of the same race or ethnic or national origins as that other, but which puts or would put persons of the same race or ethnic or national origins as that other at a particular disadvantage when compared with other persons, which puts that other at that disadvantage, and which he cannot show to be a proportionate means of achieving a legitimate aim”.
  4. The report is available at: http://www.number10.gov.uk/su/ethnic%20minorities/report/pdf.htm.
  5. Unpublished.
  6. See CRE website www.cre.gov.uk and guidance document, “Ethnic Monitoring: A guide for Public Authorities”, CRE.

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