Fighting outsourcing on equalities grounds

Background

Earlier this month the Equality and Human Rights Commission published its inquiry into the treatment and experiences of lower-paid ethnic minority workers in health and social care, particularly during the COVID-19 pandemic, in England, Scotland and Wales.

The report found evidence of racism and discrimination affecting Black staff. But it fell short of recommending the actions we thought were needed. You can read UNISON’s full response here.

Outsourcing leads to discrimination

The EHRC report does contain potentially useful tools to help campaigns against outsourcing in England, Scotland and Wales. UNISON will be refreshing our guide to fighting outsourcing over the late summer and autumn, but if you or your branch is currently involved in a campaign around outsourcing, the EHRC report can be another tool to help you.

Across England, Scotland and Wales but particularly in England, the EHRC found that the practice of outsourcing in health has led to disproportionately worse outcomes for Black staff:

The commissioning-out of adult social care, and outsourcing of some roles in health, has resulted in more insecure work and poorer pay and terms and conditions than for those directly working for the public sector, disproportionately affecting lower-paid ethnic minority workers who are more likely to be working in these indirectly employed roles in adult social care.

Such a disproportionate impact may consist of indirect discrimination, which would be illegal without a good enough reason (“objective justification”).

How to put the pressure on

The EHRC is aware of this, and recommends a number of actions to be taken by NHS Trusts, Local Authorities, Health Boards or integrated care systems in England, Scotland or Wales. The report says that these organisations should:

The EHRC – responsible for enforcing equalities law in England, Scotland and Wales – is  clear here. It says that, since outsourcing disproportionately affects Black staff, organisations have to be very careful when doing it and make sure they have very good reasons. Organisations should make detailed impact assessments to understand the equality impact. As the EHRC mentions, public sector bodies have a duty – the PSED – to eliminate unlawful discrimination and advance equality. Can a trust outsource its low paid staff and act to advance equality at the same time?

When faced with possible outsourcing or when campaigning for insourcing services currently outsourced, this report offers another angle of attack for UNISON branches: by focusing on the risk of discrimination and the public sector equality duty. The need to undertake an equality impact assessment (point b) can help slow down any outsourcing campaign which might be driven by short-sightedness on the part of the Trust. If you are debating around insourcing, the legal risks around continuing to outsource may help convince wary boards or CEOs.

Fighting outsourcing

Hopefully this report can help your prospective campaign against outsourcing. UNISON has won campaigns on outsourcing in health across the country since the COVID pandemic began. UNISON Scotland won the insourcing of 400 jobs in NHS Lanarkshire just this month, and an agreement to bring almost 2,000 staff were brought back in house at Barts Health in London was struck in March.

Our existing guides on outsourcing will be updated over the coming months, so keep your eyes peeled for this. If you or your branch are interested in fighting outsourcing on equality grounds, you may want to get in touch by emailing Lucas Bertholdi-Saad ([email protected]).