Lip service won't do: Discrimination in construction

Rising unemployment and the continuing economic downturn have led to cries for employers to recruit “British workers for British jobs”. The recent wildcat strikes by engineering and construction workers brought this slogan, and similar protectionist sentiments, to prominence, and heightened concerns that there may now be even more barriers to employment for ethnic minorities and migrants in the construction industry.

The Equality and Human Rights Commission (EHRC) recently announced that it would be conducting a formal inquiry into discrimination in the construction industry. The primary focus will be on race discrimination and the treatment of migrant workers.

As well as providing guidance to employers on best practice for avoiding race discrimination in recruitment, the inquiry is expected to highlight the commercial benefits of promoting equality and diversity in an industry where some of the most lucrative contracts are subject to the public sector procurement process.

The evidence suggests that ethnic minorities may have a problem in gaining access to, and retaining, employment in the construction industry. According to the government’s Equalities Office, only 2.5% of workers come from ethnic minorities, compared with 8% of the private sector workforce as a whole. The aim of the inquiry is to understand the reasons why there are so few ethnic minorities employed in construction, and to tackle any issues that arise.

Workers from the EU have an automatic right to work in the UK and must therefore be offered the same opportunities as British workers. Those from outside the European Economic Area do not enjoy the same protection, but they could still bring discrimination claims if they feel that they have been unfairly treated in a recruitment process.

Promoting race equality can bring considerable benefits to employers. It can help them to achieve a more representative workforce of the best talent and, as a consequence, improve services. It can also lead to improved staff morale and productivity, help to attract and retain staff, and help avoid claims of unlawful discrimination.

When the Equality Bill comes into force, public bodies will pass their equalities duties on to their contractors

Employers could also enjoy the commercial benefits of equality and diversity in the context of public procurement. Those companies that are able to successfully bid for lucrative public sector contracts will be in a better position to survive the recession.

An important part of public sector procurement is ensuring that companies that win contracts promote equality and diversity in employment and service delivery. When the Equality Bill comes into force later this year, public bodies will pass their equalities duties on to their contractors.

The contractor’s ability to comply with these duties will be assessed as part of the tender evaluation and contractual process. It is not uncommon for bidders to be asked to provide detailed evidence of their commitment to equality and diversity. Those companies that are unable to demonstrate such a commitment are unlikely to secure valuable contracts. The EHRC inquiry will consider the extent to which those companies that are ethnically diverse are thriving in the current economic climate.

The outcome of the EHRC inquiry will be of interest to those within and outside construction, and may have far-reaching repercussions. Employees who are treated less favourably on grounds of their race or nationality will potentially be able to pursue claims of race discrimination.

In addition, employers need to be aware that any arbitrary rule enforced by them that disadvantages an employee, when compared to employees of another race, which cannot be objectively justified, may also lead to a finding of race discrimination. In order to avoid claims of discrimination, employers should ensure, so far as possible, that its recruitment and selection processes are based entirely on merit with issues such as immigration status being considered at the final stages of the selection process.

In order to recruit the most effective workforce, and avoid costly employment tribunal claims, employers should implement equality and diversity policies. Those who do not risk losing out on multimillion pound public sector contracts.