MDX legal academic Beth Shiner explains how the freedom of thought, which is the foundation of all rights, has been impacted by the rise of technology ahead of an international virtual symposium
The right to freedom of thought is recognised as a distinct right in international human rights treaties and in domestic law across multiple jurisdictions. But the case law, scholarship, and commentary on the right to freedom of thought is relatively sparse. Perhaps this is because no one can stop us from thinking or even know what we are thinking. Or, because it is without practical application. Finally, as Bublitz argues, it has been neglected because it is an absolute right and courts are hesitant to make use of such a powerful tool for fear of creating undesirable precedents. But, if it so self-evident, why did the drafters of the Universal Declaration on Human Rights, and almost every human rights instrument since, both include the right and discuss what it meant? More than just symbolic, the right has been described as “sacred” and the foundation of all other rights.
During the drafting of Article 9 European Convention on Human Rights, it was stated by the French Rapporteur, Pierre-Henri Teitgen, that the purpose of the right to freedom of thought, as well as the right to freely express convictions, and freedom of conscience, religion and opinion, is to protect individuals not only from breaches by Member States, such as confessions, but also from the “abominable methods of police enquiry or judicial process which rob the suspected or accused person of control of his intellectual faculties and of his conscience”. Nevertheless, the right has been almost completely overlooked in favour of its favoured siblings: freedom of expression, conscience, religion, and privacy.
More recently, scholars and lawyers have begun to pay increasing attention to this right, especially in the context of socio-technological transformations (e.g. Blitz and Bublitz; Alegre), including neuroscience. There is also a concern about the high rate of data collection and analysis for use in algorithmic decision-making in our everyday lives that might undermine human autonomy – the basis, it may be argued, for the right to freedom of thought itself. That such concerns have particular potency in politics deserves attention although there still has not been a single case before the European Court of Human Rights, the Inter-American Court of Human Rights nor the Supreme Court of any country (that we know of) other than Spain, that engages with the question of whether, and to what extent, algorithmic decision-making might be undermining the free exercise of our political agency.
Technology provides an interesting test case for how the right might apply and to what extent, but it does not allow us to appreciate the varying social, cultural and legal contexts in which the right may, or may not be, protected right now. For example, the Special Rapporteur on freedom of religion or belief published the first ever UN report on the right to freedom of thought and identified seven areas where the right might already be engaged – not only in futuristic technological scenarios. These areas are:
torture or cruel, inhuman or degrading treatment or punishment
surveillance
coercive proselytism, anti-conversion and anti-blasphemy efforts
intellectual freedom and education
existing and emerging technologies
mental health
conversion practices
Furthermore, we are being to see the right take shape as its (tentative) scope looks to be four-fold: (a) freedom not to disclose one’s thoughts; (b) freedom from punishment for one’s thoughts; (c) freedom from impermissible alteration of one’s thoughts; and (d) an enabling environment for freedom of thought (UN A/76/380, 2021). However, this is just the beginning and much more needs to be examined before this right can be relied on.
International Symposium on the Right to Freedom of Thought: Call for Participants
The literature on the legal contours of the right to freedom of thought is sparse. For this reason, we will be hosting an international virtual symposium on the right to freedom of thought at 12noon UK/Irish time on Wednesday 23 November 2022. The purpose of the event is to sketch out the legal status and applicability of the right to freedom of thought across multiple jurisdictions. We are seeking expressions of interest from potential participants. We are eager to hear from lawyers in as many different jurisdictions as possible but are particularly interested in hearing from lawyers in Africa, Asia, Latin America and Oceania.
The purpose of the symposium is to sketch out the legal status and applicability of the right to freedom of thought, which might be contained in a national bill of rights or a regional human rights treaty. Our plan is that this event will be the first step in a larger research project on the right to freedom of thought, which will lead to an edited comparative study of the interpretation and protection of the right. For more information, please see the attached flyer.
Bethany Shiner is a member of faculty at the School of Law, Middlesex University, London, and a DPhil candidate at the University of Oxford, UK.
Patrick O’Callaghan is a member of faculty at the School of Law, University College Cork, Ireland.
Female Leading Interview With Journalists Outside (Unsplash)
MDX Criminology and Sociology lecturer Dr Daniel Sailofsky fears that the Amber Heard vs Johnny Depp trial will be a turning point for all the wrong reasons. Here he takes us through his views on why:
If you live in Europe or North America and have a working internet connection, you have probably heard of the Amber Heard – Johnny Depp defamation trial. This was not an accident. The Depp legal and PR team did everything in their power to make sure this case was as public as possible, including filing the case in the state of Virginia, ensuring that it could be recorded and live streamed.
Though Depp already lost a libel case in the UK – a jurisdiction where libel cases are more often successful than in the United States – he won the Virginia defamation case last week. Heard was charged to pay over 10 million dollars in damages, though Depp is also liable to pay two million dollars for his own defamation of Heard.
It should come as no surprise that Men’s Rights ‘activists’, the online ‘manosphere’, and the American political right latched onto this case as ‘proof’ that #MeToo has ‘gone too far’ (it hasn’t) and ‘ruins men’s lives’ (it doesn’t, if they’re talented enough), and that women lie about abuse all the time (90+% do not).
To be frank, I’m not concerned about these groups. I’m concerned about the rest of Depp’s supporters – or perhaps more aptly, those who grew to detest Heard as this case proceeded.
I’m concerned about society’s regression to victim blaming, victim hierarchies, and to unrealistic expectations of how victims of abuse are supposed to act.
Feminist sociologists, criminologists and more specifically victimologists have long been concerned with how the public and the law treat different victims, especially victims of intimate partner violence. In the 1980s, Norwegian sociologist Nils Christie introduced the concept of the ‘ideal victim’, a crime victim who’s ‘ideal’ characteristics make them more likely to garner sympathy and justice in the courtroom, and perhaps most importantly, more likely to be believed when they recount their abuse.
Even those defending Amber Heard would admit that she is far from an ideal victim. The point, however, is that she shouldn’t have to be.
Christie’s original formulation of the ideal victim (in a courtroom setting) is someone old, weak and vulnerable. They are involved in respectable activities and employment, blameless in their victimization, and victimized by a “vicious” and “unknown” offender. Other characteristics have been added to this formulation over the years, including acting ‘rationally’ to escape victimization, presenting as sincere and thoughtful in court, and being young and naïve (rather than old). Those marginalized along racial, class, and/or sexuality lines are also less likely to benefit from privileges of ideal victimhood.
Heard is not an ‘ideal victim’; almost no one is. Intimate partner violence is messy, courtrooms are stressful, and the real world of violence, abuse, and (attempts at) justice is not a True Crime podcast. Depp, his lawyers, and a deluge of social media content creators presented Heard as a liar unable to tell a coherent narrative, a gold-digger, and responsible for her own victimization due to her behaviour and her own abuse towards Depp. The fact that a judge in another jurisdiction had found substantial proof for 12 of Depp’s alleged abuses, or that he has a history of substance abuse and mistreatment of those on movie sets mattered little, because Heard was not the right victim. She wasn’t a ‘real’ victim.
As sociologist Nicole Bedera explained, Depp’s legal team used a typical DARVO (deflect, attack, reverse victim and offender) playbook in this case, and to great effect. Punching down on someone with lower structural power – in terms of wealth as well as social and cultural capital (aka popularity) – Depp and his team engaged in a takedown of Heard’s character, ignoring and deflecting from years of documented evidence.
These DARVO strategies are common, and are often used in cases of sexual violence on college campuses. Following this highly public trial, they will only become more so. This case will not only push victims to avoid seeking justice from the criminal legal system, but it will silence them from even mentioning their abuse to friends, family, and the public if they have the slightest inkling that they won’t be received as a perfect victim.
Though she is a young, conventionally attractive white woman (more likely, according to some research to be considered an ideal and believable victim), Heard admitted to fighting back against Depp. She admitted that she did not leave right away after the first time she was threatened, or when Depp first behaved in abusive ways. She didn’t have bruises at the right times; she was out to get him; she brought this into the public eye; she deserves this trial and this public execution.
This case got such media traction because Heard was not simply framed as a non-ideal victim, but as a liar, a ‘crazy woman’, and an abuser herself. TikTok ‘investigators’ and social media sleuths showed a misogynistic bloodlust for her every misstep, mistimed facial expression, and any odd courtroom behaviour. Memes were made, including those attributing guilt or blame based on courtroom behaviour and facial expressions, and social media celebrity careers were launched.
Imbibing this never-ending stream of content, observers flipped back and forth from “she’s lying” to “she deserved it”. Those defending Heard were berated and mocked, with Depp supporters taking over social media channels like TikTok.
If the general public needs victims of intimate partner violence to fit a particular cookie-cutter image to be considered a ‘real’ victim, we have seemingly learned nothing about gender inequality, power, and the messy nature of interpersonal violence trials. If defamation cases and (social) media slander await victims of powerful abusers, any progress made on speaking out against this type of violence will come to a grinding halt.
I fear that we will look back at the Depp-Heard trial as a turning point, where Men’s Rights activists, misogynists, and those looking to thwart movement on gender inequality took the narrative and public opinion back. I hope I’m wrong.
MDX legal expert Dr Giulia Pecorella explains why international courts and the UN Charter will still be crucial in peacefully resolving the conflict
Russia’s invasion of Ukraine is a serious violation of international law and the UN Charter. It is an act of aggression which also involves violations of international humanitarian law as civilian and protected objects have been targeted and attacked, as well as human rights law.
Some fear this is the end of the security system created by the UN Charter more than 75 years ago. This is because Russia, as a permanent member of the UN Security Council, has blatantly violated the cornerstone principle of the Charter. It prohibits the use of force and only allows such military action with the express approval of the UN Security Council on the grounds of self-defence.
In so doing Russia has inevitably damaged the legitimacy of the UN Security Council as the body that according to the UN Charter has got primary responsibility in the maintenance of international peace and security.
But still, from an international law perspective, I would be more inclined to see the bright side even in such dark times as now.
Resolving the war in courts
First, while Ukraine has been under attack and used military force on the grounds of self-defence, they are still determined to rely on peaceful means such as negotiations to solve their dispute with Russia.
The Ukrainian government has moreover initiated diverse proceedings before international courts, showing a remarkable positive attitude towards what the UN Charter considers another method of solving a dispute peacefully, that is, judicial settlement.
Scholars usually look at the limits of the system and the flaws of the international courts and tribunals, but I believe it is significant at this stage the Ukrainian government is still seeking to resolve their disputes through judicial settlement acting within the limits of the UN Charter.
Rescuers dismantle a destroyed residential building in Kharkiv (Deposit Photos)
At the same time, international courts have reacted very quickly, confirming they are effective and proactive means to resolve international disputes.
Moreover, States have decided to respond to the Russian aggression through acts adopted by different International organisations, including but not limited to, the Council of Europe, the UN General Assembly and the UN Human Rights Council.
This is a very interesting trend that contrasts to what we have witnessed in the last decade, when international organisations and courts have been criticised as useless, biased and ineffective, and several states threatened to leave or actually left them (think about, for instance, Brexit or the Trump Administration’s attitude towards the World Health Organisation during the pandemic, or the International Criminal Court).
Second, the strong condemnation of this aggression by the international community provides further evidence to confirm that under both customary international law and the UN Charter unilateral humanitarian interventions (that is, the use of force for humanitarian reasons by a state, a group of states or an international organisation, such as NATO or the African Union) are not allowed.
Refugees near the railway station of Lviv waiting for train to Poland (Deposit Photos)
Humanitarian intervention and self defence
In the last 20 years, because of the impact of human rights on international law, some states, including the UK, have argued in favour of using force whenever there have been claims of genocide, the use of chemical weapons against civilians, or other war crimes.
Even if a member of the UN Security Council vetoes such actions, the UK believe we should use force on the grounds of humanitarian intervention.
While the rights of the Russian minorities in Ukraine have been often cited by Putin, the reaction of the International community confirms that this won’t be a legal ground to justify the invasion.
Similar considerations could be made in relation to the grounds of so-called preventive self-defence, as it has been interpreted, for instance, within the context of the War on Terror.
In the last twenty years, the US has argued that when states are unwilling or unable to prevent attacks from terrorist groups based within their territory, the use force on the ground of self-defence is allowed, even when the threat to the security of other states is not imminent.
While the legal grounds for Russian intervention have not been clearly submitted, which is possibly another reason to condemn it, among their arguments there is also the need to prevent further threats from a militarised Ukraine. They are calling on Ukraine to demilitarise and this intervention is a way of preventing future threats.
States gets back to UN Charter
However, the way the overwhelming majority of the international community has condemned the actions by Russia shows that international law does not currently provide for a such broad exception to the prohibition to use force.
Of course, these considerations might not be sufficient to put an end to this war or the crimes committed within its context. Yet, the return of international organisations and courts for states to settle international disputes and react to violations of international law is undeniably a very positive element coming out from this hideous situation.
I am also confident that this aggression might encourage all states to reaffirm the principles of the UN Charter and reject any attempts to interpret and apply the law differently (as Russia is doing) and set dangerous precedents which could defeat a system that has survived for more than 75 years.
In this respect, international courts might also play a very significant role.
Dr Giulia Pecorella is Senior Lecturer in Law in the Department of Law and Politics, and PhD Programme Leader for Law. Her most recent work – The United States of America and the Crime of Aggression, which has been published by Routledge – is available to purchase online.
Destroyed buildings on streets of Kharkiv, Ukraine, March 3 (Deposit Photos)
Online abuse experts from Middlesex University explain why social media content moderators have a crucial role to play after Russia invaded Ukraine
*If you are a content moderator and want to get in touch please email: r.spence@mdx.ac.uk
The invasion of Ukrainian by Russian forces again underlines the power and reach of big technology companies such as Meta (formerly known as Facebook), YouTube and Tik Tok. It is through their platforms that the world will learn and react to the growing crisis. They have more power than believed, wielding the ability to keep or take down content, ultimately shaping public opinion as the war progresses. Gone is their ability to remain placid or neutral in on-going global crises. These organisations are critical agents in the dissemination and transfer of (mis)information, whether that be active or passive. Their decisions can greatly influence how events are perceived, regardless of how they have truly unfolded.
The recognition of social media’s power to influence and persuade society has led to companies such as Meta and Google facing pressure from governments on all sides of the conflict to either ban or remove content they view as misleading. Russia has banned Instagram and accused Meta of being an ‘extremist’ organisation, whilst European leaders have put pressure on social media platforms to block Russian state-controlled media. Ukraine has gone so far as to appeal directly to social media companies to block their services in Russia. It is a double-edged sword: if companies do too much, it may lead to calls of censorship and blocking free speech, but doing too little may leave them open to accusations of undermining democracy and human rights. A lot of the content published on these platforms is being generated by their users (also termed UGC or user-generated content) and is often unregulated, requiring continuous monitoring. Social media companies can partly rely on artificial intelligence (AI) to assist, but ultimately it is their content moderators (CMs) who are at the coal face in shaping how the conflict is perceived to play out. They are the ones who monitor content posted and apply their company’s rules which define what is and is not accepted. CMs or First Digital Responders as they can be known are the individuals who protect us from exposure to harmful and traumatic content.
Rescue service worker near a house destroyed by Russian rocket in Kyiv (Deposit Photos)
At the best of times, content moderators are under pressure to view and then respond to high volumes of content with accuracy. Workers whose performance dips below certain levels are at risk of losing their jobs. In the current climate, where company performance is heavily scrutinised by governments and regulatory bodies, they find themselves at the centre of highly-charged political debates. This puts pressure on companies to demonstrate their capability to police themselves, and that they can use the technology at their disposal as a force for good. However, delivering these goals is left to the frontline moderators, where the pressure to deliver is likely to be increased. Every error in moderation may result in genuine posts being removed, accounts being suspended for reasons unclear, or leave fake posts untouched, leading to the spread of misinformation and false narrative, viewed by millions.
We can assume that content moderators are currently being exposed to and overwhelmed by war footage emerging from the Ukrainian conflict. This is likely to include violent and bloody content which they will have to watch, analyse and decide whether it is genuine or part of the swathes of disinformation they will be asked to identify. This is difficult to do, especially as techniques for producing fake footage have become increasingly sophisticated. Often individuals or organisations with specialist knowledge are needed to identify fakes. Content moderators are a global workforce, often hired as contractors and paid minimum wage, and it is unfair to expect them to understand every subtle cultural differences in a complex conflict.
There will no doubt be a lag between the tsunami of content they are moderating, and the development of official policy regarding where freedom of speech and expression end, and censorship begins. This will be followed by a waiting time, whilst decisions are translated into actionable policies for content moderators. For instance, Twitch has recently announced updated policies regarding channels that spread misinformation and Facebook have instituted a temporary change in policy that allows users in some countries to post content that is usually forbidden. This is just one part of the complex process, with reports that policies are often developed in stages or adapted on the fly. In part, this is because situations evolve, and posts can be unclear, allowing for multiple interpretations of the same information. This inevitably increases the opportunity for disagreements about moderation decisions and adds to moderator uncertainty.
People hide in a metro station in Kyiv on February 24, the day Russia launched its invasion (Deposit Photos)
These imprecise processes do not help content moderators faced with reviewing content and rapid decision making. They may find they are left to carry out their tasks with little official guidance and support, while always thinking about the threat of losing their low paid jobs if they get things wrong. For example, should a violent video that normally would be removed remain publicly available due to the political importance attached in highlighting realities on the ground in Ukraine? Should videos or posts that can be used to identify and track troop movements be removed? Are videos falsely claiming to be from the current conflict actually misinformation that needs removing? These are challenging questions during a very difficult time.
Despite the illusion these platforms give of being places for free speech, they wield their power to carefully curate according to internal policies that are driven by corporate concerns. As such, the processes social media platforms use to decide whether posts should be allowed to stay up, or which accounts can remain active, remain frequently not transparent to their users and those who work outside the organisation. In the days ahead whilst the conflict continues, hopefully this will not also be the case for their content moderators.
About the authors
Dr Ruth Spence
Dr Ruth Spence is a Research Fellow at the centre for Child Abuse and Trauma Studies (CATS) at Middlesex University. Ruth uses quantitative and online methodologies to research trauma and attachment, working with partners in the third sector, police, and industry. She is currently project manager on a research study funded by the Technology Coalition to investigate the impacts of the role on content moderators.
Dr Elena Martellozzo
Dr Elena Martellozzo is an Associate Professor in Criminology at the centre for Child Abuse and Trauma Studies (CATS) at Middlesex University. Elena has extensive experience of applied research within the Criminal Justice arena. Elena’s research includes online stalking, exploring children and young people’s online behaviour, the analysis of sexual grooming and police practice in the area of child sexual abuse. Elena has emerged as a leading researcher and global voice in the field of child protection, victimology, policing and cybercrime. She is a prolific writer and has participated in highly sensitive research with the Police, the IWF, the NSPCC, the OCC, the Home Office and other government departments. Elena has also acted as an advisor on child online protection to governments and practitioners in Italy (since 2004) and Bahrain (2016) to develop a national child internet safety policy framework
Jeffrey DeMarco
Jeffrey DeMarco is Senior Lecturer in Psychology and Senior Fellow with the Centre for Abuse and Trauma Studies (CATS) at Middlesex University. His expertise has generally focused on the behavioural understandings of those who are at high risk of exploitation and abuse, applying care and support to those who may be vulnerable being drawn into crime and deviance. The majority of his work explores the intersection between psychology and the online space, including work for the European Commission in enhancing the policing of online sexual abuse; investigating youth justice systems responses to digital risks for UNICEF across the MENA region and eastern Africa; improving partnership between local communities and military in conflict zones using social media, including Iraq and Afghanistan; and assessing the psychopathology of adolescent victims/offenders of many forms of cybercrime. He is a Fellow of the Royal Society of the Arts, and the Assistant Director, Knowledge & Insight at Victim Support.
Dr Elvira Domínguez-Redondo, an Associate Professor of International Law, argues the global system to prevent nuclear war is no longer fit for purpose
The intensity of the global response to the Russian attack on Ukraine has been met by some with scepticism. They view it as a manifestation of Western exceptionalism when the consequences of illegal uses of force have a direct impact on their territory. However, the express Russian threat of escalating the conflict through nuclear weapons is indeed exceptional.
Since these weapons were created, their potential for mutual assured destruction has underpinned international relations though their destructive capability has not been explicitly articulated as a threat against other States in decades (on this threat see Lewis). Beyond the weapons, the danger posed by potential attacks to nuclear plants has also taken centre stage after the Russian military attacked an administrative building linked to a nuclear power plant in Zaporizhzhia on 4 March 2022 (see Dielnet).
The distortion of arguments based on international law and the position of those making them have, in my opinion, completed the destruction of a system no longer suitable to prevent global armed conflict. This is not – or not only – an intrinsic flaw in the system’s design, but the inevitable by-product of intentional actions carried out by those who ought to have been most interested in preserving it.
Role of Rhetoric in the Russian aggression
International law has been referenced by Russia in justifying its invasion of Ukraine. Russia has advanced every possible exception to the prohibition of the use of force in different disguises including invitation, self-defence, and humanitarian intervention (Sayapin’s summary here).
The weakness of the legal claims are reflected in the general rejection they have deservedly received.[1] Still, the Russian attempt to provide legal grounds to its actions is remarkable, going as far as recognising two new ‘states’ for the purpose of presenting the invasion as a consent-based ‘peace operation’.[2] Russia also declared that sanctions used against its economy as countermeasures are akin go an act of war, reviving legal arguments that equate use of armed force to coercive means of enforcing international law. [3]
The swift engagement and prompt response of the European Court of Human Rights, the International Court of Justice and the International Criminal Court is remarkable and a revealing testimony of the centrality of international law in the means used to address the conflict [4].
Beyond repair – (another) wake up call to replace the system
The United Nations was established in 1945 with the primary objective of protecting future generations from the scourge of war. This mission relied on two pillars: stopping the use of armed force, and creating a Security Council with unique responsibility for maintaining global peace and security. Russia (then the Soviet Union), China, the United Kingdom, France and the United States have since occupied a privileged position with permanent seats and veto powers. In practice this means that outside the confines of self-defence, the use of armed force is only legal if the States most likely to provoke a third world war are in agreement. In other words, the system is based on granting extraordinary powers to a few countries that would, in exchange, act as guardians of international peace and security.
What is often referred to as ‘paralysis’ has been the cornerstone of a system designed to prevent a third world war. As I have explained elsewhere (here and here), the legitimacy of the Security Council has been irreversibly undermined by previous illegal uses of force in Kosovo, Syria and Iraq by other permanent members of the Security Council (mainly the USA and the UK, but also France). States’ attempts to address the Russia/Ukraine conflict through dispute settlement mechanisms, with an emphasis on legal arguments manifested in an exceptionally prolific use of international courts, consolidates the strength of legal rules involved in this scenario.
However, unanimous condemnations of Russia contained in emerging decisions derived from applying standard frameworks are unlikely to stop the war. This conflict will likely end at a negotiation table, potentially with a peace agreement, hopefully in the short-term, to prevent further suffering, loss of life and weapons induced accelerated planetary destruction. The strength of the rule prohibiting the use of force is likely to rise and States that have progressively broadened the scope of exceptions to legitimise their lethal enterprises may reconsider their positions. This is not the case for the system established to monitor and guarantee compliance with the rules through the United Nations Security Council.
The destruction of the pillars on which the collective security system was built in 1945 has been completed by those who benefited most from it and who were in charge of preserving its worth as an effective mechanism to prevent a global armed conflict and total annihilation.
End of the Security Council
Whatever the outcome, it is hardly conceivable that the weakened legitimacy of the Security Council can survive this final blow in neither its current nor reformed form. Those in power will seek to in articulate and enforce rules maintaining the status quo of their privileged position. Because it requires legitimacy to be acceptable to the majority away from power, law also embeds some form of public morality and fairness.
We are at a crossroad: while the prominence of the international legal order in times of crisis has been evident, it is not possible to save the system designed to prevent and/or stop a global war only by rewriting it (as suggested by Johns and Kotova). Paraphrasing Castellino, the logic leading to the obliteration of this system has highlighted how outdated its premises are. This underscores the imperative urgent need for a radically new approach to international relations, perhaps beyond the political organisation of the state and the conception of a ‘nation’ underpinning it.
“Have confidence, have certainty that the spiritual energy of the people will prevail, the non-violent spiritual energy of people against tanks, against guns, against dictatorships, against armies, against the police, will prevail.” Colin Gonsalves.
[1]Gurmendi has compiled other States’ reactions to weakness of Russia’s legal claims here
[2]For a commentary linking the current attack and annexation of Crimea, see Roscini
[3] On reviving legal arguments that equate use of armed force to coercive means of enforcing international law see Mulder in his book Economic Weapon, Yale University Press, March 2022)
[4]Pecorella summarises the role of international law here; for the ICC prosecutions see Coleman, and Wheeler; as well as Schabas comments on genocide and war crimes)
For a list of recent short commentaries on international law implications related to the Russian invasion of Ukraine, see Odermatt here.
New research by MDX academics suggests companies focus on the risk to their reputation instead of labour rights when following laws on Modern Slavery
As a lesser known element of the agenda to deal with ‘modern slavery’ (commonly seen as a problem of people trafficked into the UK to work under ‘unfree’ conditions) has been a reciprocal concern over the abuse of workers in overseas operations of companies in the supply chains of UK companies. To this end, the Modern Slavery Act 2015: section 54 (MSA) was introduced to entice companies to ‘get to know’ their supply chains more. Specifically it requires companies to report on what actions they are taking to uphold supply chain labour rights in an ‘Annual Slavery and Human Trafficking Statement’ (ASHTS).
However, new evidence from a study by a Middlesex University research team led Dr Sepideh Parsa and Dr Chandima Hettiarachchi together with Dr Ian Roper from Essex University, suggests that this ‘soft law’ approach may be granting companies with too much flexibility, leading to inconsistencies in reporting where many challenges and complexities related to labour rights never get reported.
While concerns have been voiced before over the credibility of information reported on ASHTS, little has been known on how companies select and focus on their reporting options. So researchers carried out a detailed examination of the largest 100 companies’ statements to shed light on some of the nuances in their reporting.
The research team developed a comprehensive index. Under the MSA, companies have the option to report on a number of categories. Based on these together with the recommendations by the CORE (2017), the team concentrated on five main categories: Organisation and Structure of supply chains (OS), Due Diligence (DD), Risk Assessment (RA), Codes of Conduct, Policies and Strategies (CPS) and Training and Collaboration (TC).
The findings revealed that just over half of the companies prioritised reporting on their Risk Assessment and Due Diligence processes, followed by Codes of Conduct, Policies and Strategies and then Organisation and Structureof their supply chains being reported by similar number of companies. Upon closer examination of the two latter categories, reporting on CPS were closely linked with reporting on RA and DD processes (Figure 1). The hierarchy of priorities reported suggests, maybe unsurprisingly, an emphasis on those issues which are of more concern to investors, with an emphasis on risk to reputation, rather than to other institutional stakeholders – for example those concerned directly with labour rights. These three aspects (RA/DD/CPS) were at the epicentre of reporting, forming a strong, mutually supporting triangular relationship (Figure 1).
Figure 1 Correlations between different reporting categories
Notes: Figures in brackets show the percentage of companies reporting on each category.
Falling outside the reporting focus, Organisation and Structure of Supply Chains was linked, but to a much lesser extent, to RA and CPS. For example, only 60% of companies that raised their reporting on their RA or on their CPS also provided more information on the Organisation and Structure of their Supply Chains (OS). Details on how companies organised and structured their supply chains, especially in geographical locations that were identified as being at ‘high risk’ to violations of human rights combined with the challenges companies can face in certain areas were unreported. These were often in areas that fell outside their national jurisdiction. Similarly, just more than half of companies (57%) that increased reporting on the organisation and structure of their supply chains enhanced their information provisions on their due diligence processes. This conveys further hesitation by companies to disclose details about those part of their supply chains that were more at risk and hence had due diligence processes specifically devised for them.
Maintaining a low profile on their supply chains is an illustration of companies’ reluctance to draw attention to challenges and problematic areas that may be hard to resolve within a business context or simply too complex and politically too sensitive to report on. In the UK regulatory environment for corporate governance where shareholders’ interests are prioritised, releasing information that may lead to uncertainties could adversely affect share prices, so there is an incentive for companies to avoid drawing attention to problematic areas. While this can be acceptable in the absence of any mandates for reporting on complex and sensitive issues, the same justification somehow falls short of explaining why companies made limited efforts to report on their Training and Collaboration programmes, where solutions could potentially be proposed to address problems identified.
Training and Collaborations was the least reported category. Companies remained largely silent about their collaborations with external organisations, such as trade unions or labour NGOs. All this raises questions over how in-depth corporate efforts have been in finding out and understanding and dealing with challenges they face on this labour-rights issue, or how willing they have been in reporting on such efforts. It is unclear how much effort has been put into raising and changing corporate awareness and culture on labour rights issues and whether or not all the relevant issues have been identified and responded to. This can ultimately have implications for how risks are managed and due diligence processes are devised.
While it is convenient to prescribe the need for companies to engage with external ‘social partners’ who can inform their processes, we need to learn a lot more about sensitive labour issues along companies’ supply chains, especially those aspects that were often in geographical areas outside companies’ national jurisdictions with circumstances that are outside their expertise and their business remits. While Sepideh and her team remain critical of ‘soft law’ approaches, unless we know more about supply-chain challenges and complexities, any attempt to take a harder regulatory approach would be meaningless.
Dr Sepideh Parsa is Associate Professor of accounting in the Accounting and Finance Department at Middlesex University Business School.Dr Chandima Hettiarachchi is Researcher and Associate Lecturer in Accounting & Finance Department at Middlesex University Business School.
From 25 November to 10 December 2021, the United Nations marked the 16 Days of Activism against Gender-based Violence, under the global theme set by the UN Secretary-General’s UNiTE campaign: “Orange the World: End Violence against Women Now!”. Our staff at the Centre of Abuse and Trauma Studies (CATS) at Middlesex University, along with close friends and colleagues, have worked consistently at an international level to support women and girls who are victimised online. They have participated in major events to share empirical evidence, raise awareness, and to support governmental organisations who are working to stop gender-based cyber violence against women and girls.
As defined by the European Institute for Gender Equality (EIGE), a regulatory agency of the European Union, cyber gender-based violence includes “all forms of violence perpetrated through electronic communication and the internet”. The Centenary Action Group, which campaigns for equal representation of women in the UK parliament, argues that online violence against women and girls “should be recognised as a wide and growing set of harms including intimate image abuse, online harassment, the sending of unsolicited explicit images, coercive ‘sexting’, the creation and sharing of ‘deepfake’ pornography.”
What is being forgotten is that women continue to be sexually exploited after they turn 18 years old. This issue was raised in the Chief Social Worker’s Annual Report 2019 -2020 which stated:
“It’s important to remember this does not stop at eighteen and is not an issue which children’s services can tackle alone – our safeguarding services need a different response. Unfortunately, they are often configured in ways which do not support young people after the age of eighteen unless they have a disability.”
Some women are specifically targeted at the age of 18+ as abusers know that safeguarding provisions diminish at that point, and the definition of the exploitation changes from the sexual abuse of a child to a sexual choice made by the woman. However, according to the UK government’s strategy, in order to tackle sexual violence against women and girls, the focus should not be about the age of the victims, it should be about vulnerability and the imbalance of power between the victim and their abuser that is utilised for the purpose of sexual exploitation. Some of the most vulnerable women are those from ethnic minority communities, women engaging in sex work, women with disabilities and victims of domestic abuse.
During these 16 days of activism, we have seen governments and organisations, including NGOs, creating opportunities to voice, share and debate how the key factors that aggravate cyber violence against women can be challenged.
On 24 November 2021, Professor Clare McGlynn QC (Hon) presented at the Lincolns’ Inn Equality, Diversity and Inclusion Forum, on “the Boundaries of Intimate Image Abuse: where next for law reform?” Claire presented on a number of uncomfortable types of cyber violence, including cyberflashing, a form of sexual intimidation that can make women feel fearful for their physical safety, as well as feeling violated and humiliated which can lead to considerable distress and anxiety.
The following day, the Finnish Ministry of Justice invited us – Dr Emma Short, Dr Elena Martellozzo and Paula Bradbury – to present a discussion paper on “digital violence: understanding the growing threat to women and girls in cyberspace”. We explained how online violence and abuse against women and girls has grown over the past two years, as lockdowns moved the world online. However, risks associated with cyber violence against women and girls may be overlooked, as they are often not considered ‘real violence’.
Dr Elena Martellozzo argued that separating cyber violence from ‘real world’ violence can be dangerous because of the negative and harmful effects that online violence has on women and girls. There is a risk that because these crimes take place virtually, they could be dismissed as less damaging for women and girls than physical violence. However, being online creates opportunities for crimes like cyberstalking, cyberharassment and online grooming to be enacted easily, rapidly and anonymously. The ‘always on’, omni-connected nature of modern life means that perpetrators have the potential to target individuals, particularly women and girls, perfidiously.
Dr Emma Short presented some evidence suggesting that there has been an increase in stalking behaviours experienced by victims, and changes in stalking behaviour in the year ending April 2021. She argues that changes in the patterns of stalking behaviour present new challenges for advocates and frontline police officers, emphasising the necessity not only to understand the changing landscape from their perspective, but also how the problem is policed and the victims are supported.
Paula Bradbury talked about the victimisation of children and young people online and presented some of the evidence collected on women selling nudes during the lockdown on sites such as OnlyFans. She explained that some young, vulnerable women, in financial difficulties, were compelled to sell their bodies online, and perform sexual acts requested by subscribers to maintain their interest, increase their popularity, and earn more money. Acknowledging that such sites reduce many of the risks to women who work in the offline sex industry, Bradbury argued that they also create the opportunity to exploit women and girls for financial gain in plain sight.
Call for further changes
“The construction, perception and communication of hate is primarily social,” claimed Dr Eleonora Esposito during the Stakeholder Consultation Meeting on mapping cyberviolence in Europe, organised by EIGE on 2 December 2021. It is therefore important that we do not focus exclusively on the role played by social media and, as a result, overlook our civil responsibilities. We, as social media users, should be held accountable for utilising those platforms maliciously, to harm others, and these messages should be clear to all users through perhaps, an online code of conduct, that highlights the importance of online safety.
Furthermore, it is important “to advance the status quo on gender-based violence”, claims Dr Esposito, by developing common definitions that will allow researchers to measure the phenomenon. Only what is measured becomes visible, and what is visible can in turn be monitored, and only what is monitored can be improved. In other words, the lack of understanding of the gravity that cyber violence has on women and girls may lead to inadequate responses from police authorities, for example making women who experienced online harassment feel responsible for “putting the information online in the first place”.
We have observed that there is also a tendency to place the responsibility for cyber violence on victims rather than abusers. This attitude only serves to enable the prevalence of exploitation and risks to women, girls, and other vulnerable victims and reduces their willingness to report their abuse. More than a third of women worldwide have experienced abuse online, rising to almost half for younger women (classified as Generation Z and Millennials), according to a 2021 study from the Economist Intelligence Unit. While individual efforts are important for immediate damage control, we call for significant changes to be made by a variety of stakeholders, including governments and the tech industry. We ask for changes that do not only provide the necessary legal framework to support the voices of women, girls, and other vulnerable people who are exploited online, but practical measures that prevent and challenge those who seek to exploit.
Some of the significant changes should include:
The advancement of the status quo on cyber gender-based violence by developing common definitions of cyber gender-based violence, so we can measure specific issues with precision
The development of an online code of conduct, particularly in the workplace
Implementation by government of a comprehensive public health approach to tackling online abuse
Updated training and appropriate resourcing for front line workers to tackle cases of online violence
More pressure placed on tech companies by governments to do more to tackle online abuse
Tech companies to provide greater transparency about their content moderation efforts and to invest more resources in human content moderation.
Dr Elena Martellozzo is an Associate Professor in Criminology at the centre for Child Abuse and Trauma Studies (CATS) at Middlesex University. Elena has extensive experience of applied research within the Criminal Justice arena. Elena’s research includes online stalking, exploring children and young people’s online behaviour, the analysis of sexual grooming and police practice in the area of child sexual abuse. Elena has emerged as a leading researcher and global voice in the field of child protection, victimology, policing and cybercrime. She is a prolific writer and has participated in highly sensitive research with the Police, the IWF, the NSPCC, the OCC, the Home Office and other government departments. Elena has also acted as an advisor on child online protection to governments and practitioners in Italy (since 2004) and Bahrain (2016) to develop a national child internet safety policy framework
Paula Bradbury is a Criminology Lecturer and Doctoral Researcher within the School of Law at Middlesex University, exploring the appropriateness of current policy and practice relating to adolescent sexual offending and sexual behaviour between peers. She is passionate about researching online sexual offending behaviour and child abuse.
Paula is an active member of the CATS team engaging in multiple research pathways to combat child sexual abuse both online and offline as a mixed methods researcher proficient in both quantitative and qualitative analysis, and project management. She is also the National Child Sexual Abuse Lead for Victim Support, serving as a project manager developing online support content for adult survivors or child sexual abuse.
Based at DeMontfort Universitiy, Emma is a Chartered Health Psychologist and HCPC registered as a practitioner in Health Psychology. She has been engaged in research in the area of cyber harassment, stalking and technology facilitated abuse since 2005, working with partners in the third sector, Higher Education, police and Government bodies.
She collaborates widely with stakeholders and continues to deliver training to service providers about online harms and the nature and impact of cyber harassment and stalking.
Tom Dickins, a Professor of Behavioural Science, has written a new book which explains how popular theories on evolutionary biology have changed in modern times
The Modern Synthesis was a long period of theoretical development in evolutionary biology that began with the invention of population genetics in the 1900s. A key innovation was Fisher’s analogical use of the ideal gas laws to envisage a population of particles, or genes, randomly bumping into one another. Just as with atoms these genes would remain in equilibrium until some external force changed that – natural selection was such a force. This analogy enabled a statistical synthesis between Mendel’s views of particulate inheritance and Darwin’s theory of gradual evolution whilst reinterpreting evolution as changes in gene frequencies within a population.
Evolutionary ideas
The Modern Synthesis also saw the removal of some older evolutionary ideas including those from Lamarck. Lamarck argued that developmental processes could be induced within an individual as a response to the environment. Development could lead to new and useful forms that would be inherited and would thus persist. Darwin had replaced this definition of evolution with one where successful trait variants were retained at the population level because more individuals with those variants survived and reproduced. Unsuccessful variants were removed. But Darwin did allow a role for transformation in the generation of new variation. Population genetics removed Lamarckian transformation entirely relying instead upon genetic variation and the outcome of selection. During the Synthesis additional processes were included, such as genetic drift, but all reorganized the constitution of the population without reliance upon a theory of development.
The role of developmental biology
The removal of Lamarck and the redefinition of evolution as a population level process meant that evolutionary biology was no longer a theory of form. This change has not gone unnoticed, and contemporary scholars have begun to look again at the role of developmental biology in evolution. Some have explicitly called for an Extended Evolutionary Synthesis that will incorporate mechanistic theories of form. In doing this these scholars are arguing both for new models of the emergence of useful variation and for new types of inheritance, most especially through developmentally induced transgenerational epigenetic effects.
A central argument of the Extended Evolutionary Synthesis is directed toward what is referred to as gene-centrism. During the latter stages of the Synthesis, in the 1960s, biologists began to model genes as agents whose goal is to replicate across the generations. To achieve this goal, genes contribute to traits that enable the survival and reproduction of the organisms they find themselves in. Genes, as replicators, can span many, many generations. Bodies, as vehicles for those genes, are mortal. This heuristic captured sophisticated mathematical modelling that allowed biologists to address central questions about the emergence of social behaviour, leading to the development of inclusive fitness theory. The replicator-vehicle view saw genes as packets of information, transmitted across generations, and conveying instructions for a developmental program. For many critics this view was taken as preformationist, as an assertion that the gene contained everything and should be privileged in causal models of form.
In my book The Modern Synthesis: Evolution and the Organization of Information (pictured above) I give a detailed history of the Synthesis. I argue that the use of information concepts during this period, and since, has been informal and that this informality has enable a reified view of information to emerge. By this I mean that in colloquial terms scientists have talked as if information is something to be harvested and to be transmitted, and this in turn has allowed a view that information can have causal powers. This has much to do with misinterpretations of Shannon’s 1948 mathematical theory of communication, a theory that emerged just prior to information concepts in biology. Shannon’s work is often treated as a theory of information when in fact it was really a theory of data that enabled the quantification of information. I give the detail of this position and offer what I consider to be a more appropriate interpretation where information is seen as a functional outcome of the relationship between data (as input) and a context (or system) into which it is inputted.
Genes are data
Taking this contextual view of information, I then show how genes, or more precisely DNA codons, are to be seen as data that plays a role in protein synthesis contexts. I show how this view is inherent in the writings of the Modern Synthesis, but also how it enables us to make sense of development within evolutionary biology. Genes are causally prior in developmental sequences, but not conceptually central. Claims that the late-stage Modern Synthesis was gene-centric with respect to development are thus shown to be overwrought. More technically, I then spend several chapters investigating key aspects of the developmental challenge to the Modern Synthesis, showing how each mechanistic theory is entirely compatible with the Synthesis under a correct view of information.
The central claim of my book is that evolutionary processes enable the organization of information by selecting for data-context relationships. Life is fundamentally informational. But the book is also a defence of the Modern Synthesis, and I close by discussing how such large scale, framework theories act to corral and constrain multiple bespoke theories. Developmental biology is in the business of explaining the development of multiple different systems. It is unlikely that all these theories will cohere under one developmental framework, but as complex data processing systems they can all be made sense of in terms of evolution. In this way evolutionary theory provides an account not of specific forms but instead of the kinds of form that development must deliver.
The book is available online and all Middlesex University staff and students can access the book here.
Nurse Efe Obiakur, who says she has long faced discrimination and harassment working in the NHS. Credit: Matt Brealey/CNN
As well as a moral issue, tackling racism affecting NHS staff is a crucial part of improving patient safety and care, says MDX Research Fellow Roger Kline
There is equally a growing awareness of the scale of race discrimination in all aspects of the lives of citizens of Black and Minority Ethnic heritage including the quarter of a million Black and Minority Ethnic staff working in the NHS.
Not so well known is the impact of race discrimination against health and social care staff on the care and safety of all patients and service users.
We have a wealth of data demonstrating that BME staff in health care are disadvantaged in recruitment and career progression, in whether staff are disciplined, bullied and harassed at work, and are treated worse if they raise concerns or admit mistakes.
Such treatment demoralises staff, wastes talent, affects turnover, costs money, and damages staff health. But crucially it also undermines team working, incentivises blame, not learning, and adversely impacts patient health and safety.
Risk one: There is a serious risk that recruitment and promotion data means that selection panels may be choosing “people like us” or who can best “fit in” rather than the best candidates, thus depriving patients of the best possible talent.
The NHS has an ethnicity gradient in which the more senior the post the less likely we are to see BME staff. It is still 1.61 times more likely that a White shortlisted candidate will be appointed compared to a Black and Minority Ethnic shortlisted candidate. It is not surprising therefore that it is twice as likely that BME staff do not believe there are equal opportunities for promotion and career progression.
Risk two: A culture of blame not learning is a risk to patient care and safety
Literature demonstrates the risk of racial bias in investigations. In combination, such treatment means it is more likely that the mistakes we all make are seen through the lens of blame, not learning for BME staff, not least because of the difficulty some White managers have in having honest conversations with BME staff.
Risk three: Racialised patterns of work are a risk to staff health and adverse impact on staff health may have consequences for staffing absence, discretionary effort and staff turnover, any of which may impact on patient care and safety, especially at a time of pre-existing staff shortages
“Over and above socioeconomic effects, both experience of racial harassment and perceptions of racial discrimination make an independent contribution to health. For example, those who had been verbally harassed had a 50 per cent greater odds of reporting fair or poor health compared with those who reported no harassment”.
Race discrimination is positively associated with an extensive range of adverse conditions including coronary artery calcification, high blood pressure, lower birth weight, cognitive impairment, and mortality. Moreover, discrimination, like other stressors, can affect health through both actual exposure and the threat of exposure.
Risk four: If BME staff are more likely to be bullied that will impact on their health and their working lives as well, placing patient care and safety at risk
BME staff are 21% of the NHS workforce. An astonishing 28% of them reported being bullied and harassed by managers and staff last year, significantly more than White staff reported themselves as being (23%).
The adverse impact of bullying on staff health has been well evidenced by Lever and others and in turn impacts on performance, career progression, engagement, retention and team effectiveness, as well as harming the safety and physical and mental well-being of staff.
American medic Lucien Leape describes how a culture of disrespect in medicine is a threat to patient safety because ”it inhibits collegiality and cooperation essential to teamwork, cuts off communication, undermines morale and inhibits compliance with and implementation of new practices”. Staff who are bullied are less likely to admit mistakes, raise concerns or work effectively in teams – all with consequences for patient care and safety.
Risk five: If staff are less likely to speak out and raise concerns that is likely to directly impact on patient care and safety
Robert Francis’ Speaking Up report (2015) drew on a survey of 20,000 NHS staff which found very significant differences between the experiences of White and BME staff who raised concerns.
It was 50% more likely that:
BME staff raising concerns would be satisfied with the response to their concern about suspected wrongdoing
BME staff felt they would be victimised by management after raising a concern
BME staff felt they had been victimised by co-workers after raising a concern
BME staff were 23% less likely than White staff to report a concern again if the staff suspected wrongdoing
BME staff were 70% less likely than White staff to raise a concern about suspected wrongdoing, due to a fear of victimisation.
The NHS National staff survey 2020 reported a significant difference between White and BME staff views on raising concerns. It reported that staff from BME backgrounds are less likely (62.1%) to feel safe to speak up about any concerns than White staff (67.0%).
Risk six. Where staff of Black and Minority Ethnic heritage are not welcomed, their difference valued, and it is not a safe place for them to raise concerns, then patient care is likely to lose the benefit that improved representation can give.
“the experience of black and minority ethnic (BME) NHS staff was a good barometer of the climate of respect and care for all within the NHS. Put simply, if BME staff feel engaged, motivated, valued and part of a team with a sense of belonging, patients were more likely to be satisfied with the service they received”.
“the % staff believing Trust provides equal opportunities for career progression or promotion… was a very important predictor of patient satisfaction in all three analyses (2014, 2015 and across the years). The more staff believe this to be the case, the more satisfied patients will be on average.”
Racism and bullying undermine psychological safety at work. This matters because as Carter and colleagues demonstrated, inclusive and compassionate leadership helps create a psychologically safe workplace where staff are more likely to listen and support each other, resulting in fewer errors, fewer staff injuries, less bullying of staff, reduced absenteeism and (in hospitals) reduced patient mortality.
An inclusive work team recognises, as Edmondson (1999) puts it, the deep human need to belong, and the anxiety anyone may feel when speaking up or sharing ideas in front of others for fear of saying something that may appear stupid or wrong.
Inclusion may be regarded as the extent to which staff believe they are a valued member of the work group, in which they receive fair and equitable treatment, and believe they are encouraged to contribute to the effectiveness of that group. Inclusive workplaces and teams value the difference and uniqueness that staff bring and seek to create a sense of belonging, with equitable access to resources, opportunities and outcomes for all, regardless of demographic differences.
As Shore (2018) put it, Inclusive organisations are more likely to be ‘psychologically safe’ workplaces where staff feel confident in expressing their true selves, raising concerns and admitting mistakes without fear of being unfairly judged.
Or as Professor Scott E Page describes in The Diversity Bonus: How Great Teams Pay Off In The Knowledge Economy (2017) – when more diverse representation is underpinned by inclusion, demographic diversity can improve team performance. The evidence for this is more nuanced than is sometimes presented, but is convincing nevertheless. An evidence base supports the proposition that effective leadership is diverse, inclusive and compassionate.
Psychological safety and inclusion impact positively on organisational effectiveness. When more diverse representation within teams and in leadership are underpinned by inclusion, it is likely that performance will improve, creativity and innovation will be greater, turnover will reduce and risks will be better highlighted.
One senior BME nurse put it to me, “I’ve spent my entire career walking on eggshells knowing that should I make a mistake or raise a concern I will be held to a higher standard than my White colleagues. I have more than once joined teams where I am not fully valued for the difference I bring or the insights I can share. Inevitably this affects patient care and safety”.
Conclusion
Tackling racism is first and foremost a moral issue but it is also a crucial part of improving the care and safety of patients and service users whatever their ethnicity.
Covid 19 and Black Lives Matter have finally, I think, led to many NHS leaders (not all) asking HOW they can address this issue as a priority, not WHY. To do so we have to stop leaving it to those adversely affected by discrimination to be the ones challenging it. We have to recognise that while overt racism is not normalised in the NHS, the patterns of bias, stereotypes, assumptions and behaviours that characterise systemic racism are well embedded and that they significantly damage patient care as well as healthcare staff.
Roger Kline is Research Fellow at Middlesex University Business School. An earlier version of this blog formed a presentation to The Healthcare Improvement Studies Institute, University of Cambridge November 2021 conference
Research Fellow Roger Kline reviews a paper on the impact of joint-evaluation methods in NHS recruitment
With changes to the recruitment process, one Trust more than doubled the number of applicants reaching Unconditional Offer stage
In a discussion with a group of NHS staff recently I was asked what their Trust might do to speed up progress on race equality in recruitment and career progression. I shared some of the evidence on removing bias from processes and inserting accountability, and in passing suggested that if the Trust wanted to be adventurous it could remove the future line manager from the final appointment decision in order to reduce affinity bias as there was some evidence this could be effective.
They laughed and said. “Ah, that is just what happened by accident here when the line manager was off sick. The interviews went ahead and we got a much more diverse set of appointments”.
A fascinating short paper by Sheila Cunliffe and Catherine Wilkinssuggesting this approach might be more widely effective has just been published. I recommend you read the original paper but with the authors’ permission I summarise it here and suggest why they may have found what they did.
The case study
A high profile NHS Trust identified a number of issues with their existing process for recruiting Band 5 nurses and midwives. 63% of applicants were invited to interview and 12% of those received an unconditional offer. The Trust found:
Some managers were taking too long to shortlist leading to high non-attendance at interview and too long to return appointment paperwork after interview
Managers wanted the ‘perfect’ candidate and were unwilling to take someone who needed development.
Candidates applied for multiple roles and, if invited to interview for several of these, only attended interviews for one.
There was substantial attrition of candidates after unconditional offer which meant the number of applicants finally onboarded was below 10% of applicants.
The Trust wanted to know why only 12.3% of candidates reached Unconditional Offer stage. A deep dive into 32 past recruitment campaigns was undertaken by the Nursing Workforce team doing an exercise in which candidates who had applied for these roles were shortlisted for both –
Suitability for the particular role advertised, and
Suitability for a Registered Nurse (RN) role somewhere in the Trust.
The data produced from this exercise was then compared with the data from the original recruitment exercise. The outcome was quite extraordinary. 89.1% of applicants were assessed as suitable for a RN role somewhere in the Trust, but in the original recruitment many were being rejected at shortlisting stage as they were not considered suitable for the specific role applied for. In addition, others were not considered to be in the top 4-6 candidates for that role and rejected in order to have a ‘manageable’ shortlist. This was then followed by candidates who were unsuccessful for the role on offer being rejected after interview with no attempt to offer them a role elsewhere in the Trust. The cumulative effect was that only 12.3% of candidates reached Unconditional Offer stage.
This exercise led to substantial changes in recruitment processes in Adult Nursing including:
Reviewing the ‘Killer Questions’ criteria in the recruitment system to ensure only candidates who were professionally qualified and registered (or about to be) could apply
Stopping shortlisting. Instead all applicants were automatically invited to book into a generic Assessment Centre at a date suitable for them (the centres were run on a 3-weekly basis)
The Assessment Centres were established on the principle of ‘wrapping our arms around the candidate’, ie with a focus on a more positive candidate experience and giving information about the Trust as a whole, including discussion of potential future career progression
Applicants attending the Assessment Centre were given a generic interview and Situational Judgement Test. The interviews were conducted by panels who were assessing suitability for a RN role in the Trust as a whole and not for a specific post. All candidates were assessed against a common standard. This future line manager was not always on the panel and even if they were, they were assessing for generic roles rather than simply for ones they would be managing in future
A Values and Behaviours 10-minute online test developed with a Psychometric company which reported against the Trust Values and Behaviours framework was also trialled, but this was stopped as a result of insufficient HR resource being available for analysis and evaluation
Individual clinical teams had ‘stalls’ at the Assessment day, enabling candidates to speak with specialists and find out more about their work and then have the opportunity to state their preference for specific areas they wished to work in and/or discuss the areas they were interested in from a career progression perspective
Successful candidates were then placed according to the Assessment Centre results and their preferences where possible
A more flexible approach was taken with candidates – eg if a candidate wished to work in a particular specialism but wasn’t considered ready, they could be offered a role which would give them that additional experience in a 6-to-12-month period
Many candidates received an offer on the day of the Assessment Centre.
The Trust gained an immediate benefit which addressed the original rationale for the exercise. The volumes of applicants recruited improved substantially with 30.3% of all applicants now getting through to unconditional offer compared with 12.3% before these changes were made.
However, when the team designing these changes then reviewed the success rate of applicants of different ethnicities for Band 5 and 6 posts (as part of a separate investigation into bias in recruitment) they discovered something quite astonishing.
They found that whilst the differences by ethnicity in the likelihood of applicants who applied being shortlisted were significant but small, at interview stage the outcomes were very different.
Fig 1 shows the difference between the interview success rates overall, and by ethnicity, before and after the process changes were introduced.
Fig 1. Success rates of different recruitment processes by ethnicity
Ethnicity
% Success Rate from Application when interviewed for specific Trust job (12 months)
% Success Rate from Application when interviewed for an RN role somewhere in Trust (6 months)
Ratio of White Offers to BAME Offers
Asian
16.1%
43.68%
0.76
Black
12.9%
35.15%
0.94
Mixed
16.7%
25.58%
1.29
Not stated
18.7%
73.53%
0.45
Other
14.5%
33.33%
0.99
White
24.5%
33.01%
1.00
The changes recorded in interview outcomes are striking, resulting in the proportions of ethnic minority applicants getting unconditional offers being much closer to the proportion of white candidates at each stage.
Explanations?
Why might the outcomes change with a change of process? There are a number of possible reasons.
One explanation is Bohnet’s insight that joint-evaluation of candidates succeeds in helping employers choose, irrespective of an employee’s gender and the implicit stereotypes the employer may hold. Bohnet found employers tasked to choose an employee for future performance were influenced by the candidate’s gender in separate evaluation. Bohnet’s findings have implications for organizations that want to decrease the likelihood that hiring, promotion, and job assignment decisions will be based on irrelevant criteria triggered by stereotypes. In contrast, in joint-evaluation, gender was found to be irrelevant – employers were significantly more likely to choose the higher rather than the lower performing employee.
They concluded that research in behavioural decision-making suggests that employers may decide differently in joint than in separate evaluation because they switch from a more intuitive evaluation mode based on heuristics in separate evaluation to a more reasoned mode when comparing alternatives in joint-evaluation. In addition, joint-evaluation might also affect choices by providing additional data that employers can use to update their stereotypical beliefs about a group to which an employee belongs. By definition, an employer has more data points available in joint than in separate evaluation. Bohnet found that only about 8 percent of the employers engaging in joint-evaluation, as compared to about 51 percent of the employers engaging in separate evaluation, chose the underperforming employee. It seems quite possible that the same principle might apply to the influence of ethnicity on decision making.
This is one possible explanation for some of the difference the change of process made, though without additional information it is not possible to say how significant this change might have been.
A second possible explanation is suggested by research on whether having more than one candidate who is female or is from an ethnic minority affects their likelihood of being appointed from interview. Johnson and colleagues suggested it makes a very considerable difference. Pooling results from three studies they found that when there was only one woman or minority candidate in a pool of four finalists, their odds of being hired were statistically zero.
However when they created a new status quo among the finalist candidates adding just one more woman or minority candidate, the decision makers did consider hiring a woman or minority candidate. The difference that increasing the number of female or minority candidates made was remarkably large. Why does being the only woman (or ethnic minority person) in a pool of finalists matter? The researchers suggest this is because it highlights how different they are from the norm “and deviating from the norm can be risky for decision makers, as people tend to ostracize people who are different from the group. For women and minorities, having your differences made salient can also lead to inferences of incompetence.”
Clearly in batch recruitment of the sort in the Trust studied, half[SC1] of those shortlisted prior to the change of process were White applicants, so it is possible this was a factor, although it is unlikely to be the main one since substantial numbers of individual shortlists would have had two or more BME candidates (Harvard Business Review).
The third possible explanation, and probably the most significant one, is that the removal of the line manager from the decision making process for specific roles they would manage in future made a difference. Using an assessment centre in which the future line manager was not always present, and even if a manager with a vacancy was present they were they were not necessarily interviewing ‘their candidates’, is likely to have substantially reduced affinity bias. In No more tick boxes I summarised some of the powerful evidence that affinity bias is an important factor in creating biased recruitment and career progression decision. There is evidence that the absence of the future line manager can help to prevent some of that bias. Google follow that approach even though “Managers hate the idea that they can’t hire their own people. Interviewers can’t stand being told that they have to follow a certain format for the interview or for their feedback.” (Wired)
Conclusion
It is likely that a combination of a very structured process, without the future line manager’s decision being key, possibly assisted by either or both the impact of joint evaluation and more diverse shortlists, helped make the remarkable difference, Cunliffe and Wilkins found.
Either way, there appear to be important lessons for other NHS employers where batch recruitment is possible since, when implemented properly, it may make a very significant contribution to diversity as well as the overall effectiveness of recruitment.
The authors would be really interested in other examples of batch recruitment and the use of assessment centres for such recruitment at enquiries@citou.com, and so would I.
Roger Kline is Research Fellow, Middlesex University Business School
If you found this interesting, you might want to read Roger’s blog about No more tick boxes, his extended review of “what works” and what doesn’t in creating fair recruitment and career progression
