MDX academic explains how British firms will have to comply with new EU corporate laws covering a range of social and environmental issues
Greenwashing is the exaggeration of a company’s impact on the environment and society. Unlike financial information, companies are not required to comply with reporting standards concerning environmental, social and governance (ESG) information.
It is, therefore, perhaps not surprising that companies report their behaviour favourably without divulging the challenges or adverse impacts of their operations. This has cast a shadow over the credibility of ESG reports and their contributions to corporate accountability.
Furthermore, our research shows that companies struggle to report accurate information about workers along their value chains. Many companies agree with the general principles of labour rights, but they often fail to provide specific information supported by statistics, any steps they take to uphold labour rights, or their interactions with key stakeholders. Instead, they tend to provide general narratives which exaggerate their efforts.
The UK Modern Slavery Act (2015) has not improved the situation much. It is a relatively soft law and carries no penalties. There is very little political appetite in Britain to take on board recommendations to improve labour rights reporting.
All this may have to change in the face of new developments in the EU. The Corporate Sustainability Reporting Directive (CSRD) is a new Directive marking the beginning of a new era for reporting on a broad range of social and environmental issues, including labour rights. Given that Britain is the third largest trading partner in the EU, many British companies will have to comply.
The CSRD will mandate companies to report ESG information to the new European Sustainability Reporting Standards (ESRS). There will be penalties for non-compliance. ESRS will require companies to report on their endeavours to uphold labour rights of their employees and the workers along their value chains. ESRS requirements are closely aligned with those of the Global Reporting Initiative (GRI) standards. However, ESRS will evolve over the coming years and it’s yet to be seen if they will surpass the GRI standards in quality and adoption.
The CSRD will be implemented gradually from 2024 to 2029, starting with large EU companies, followed by listed small- and medium-sized enterprises and at the end, major non-EU companies.
While the accounting profession is gearing towards the upcoming changes, companies and local authorities need further support and guidance on how to uphold labour rights at the bottom end of value chains in the UK. It remains to be seen how far down the value chains companies can go to report accurate information and provide assurance on the absence of modern slavery.
Dr Sepideh Parsa is Associate Professor of accounting at Middlesex University Business School. Sepideh has been appointed by the Global Sustainability Standards Board (GSSB), GRI’s independent standard setting body, to serve on the GRI Labor ProjectAdvisory Group to revise and develop the Labor related GRI topic standards.
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.
The data on NHS disciplinary proceedings shows it is twice as likely that BME staff will enter the disciplinary process as white staff.
Roger Kline is Research Fellow at Middlesex University Business school. Here he examines the new NHS Long Term Plan and asks if it’s enough to combat the toxic workplace culture revealed in the organisation by recent research.
to build a modern working culture where all staff feel supported, valued and respected for what they do. And where the values we seek to achieve for our patients – kindness, compassion, professionalism – are the same values we demonstrate towards one another. (Para 4.40)
The
statement suffers from being made ahead of publication of a long term NHS workforce
strategy and from seriously inadequate funding, but the aspiration is important
because if achieved (even partly) it will make a significant difference to
staff health and well-being, organisational effectiveness and the quality and
safety of patient care.
We
have some way to go.
The toxic workplace
The
NHS
Staff Survey shows that in each of the last 3 years 24% of employed NHS
staff reported they were subject to bullying, harassment or abuse from fellow
workers and managers– and it was much higher in some Trusts and in some
occupations. Stress is widespread. 53% of staff say they attended
work in the last 3 months despite feeling unwell because they felt pressure
from their manager, colleagues or themselves.
Discrimination
is rife. We have a very diverse NHS workforce but one which faces systematic
discrimination. We are very good at bringing staff into the NHS from across the
globe but not so good at respecting the talent and humanity they bring. A large
majority of the NHS workforce are female but only a minority of Very Senior
Managers are. Staff with disabilities, and staff who are LGBT experience
extraordinary levels of bullying.
Staff
from BME backgrounds who are now almost one fifth of the NHS workforce experience
discrimination in many aspects of their lives. For example:
One in four entry grade nurses and midwives are from BME backgrounds but that drops to about one in twenty for very senior nurses and midwives;
It is more likely that white shortlisted applicants will be appointed than BME ones;
It is more likely BME staff will be bullied by colleagues and managers but, interestingly, it is not more likely that they will be bullied by members of the public. Again we know some groups of staff are especially vulnerable, such as paramedics and midwives;
BME staff are more likely to be victimised for raising concerns and less likely to be thanked for doing so even though this will benefit patients. Robert Francis found that just 3% of BME staff said they had been thanked for raising a concern.
Why does this matter?
We
know that how NHS workers are treated impacts not only on their health and
well-being but on organisational effectiveness and the quality and safety of patient
care.
We know that bullying, for example, impacts on increased intentions to leave, job satisfaction and organizational commitment, absenteeism, presenteeism, productivity and the effectiveness of teams. When Duncan Lewis and myself estimated the annual cost of bullying to the NHS last year we came to a very conservative estimate of £2.28 billion a year.
We know that incivility leads staff to intentionally decrease their work effort, the time spent at work, the quality of their work and that 80% of affected staff lose work time worrying about the incident. It is no wonder that there is a consensus that “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.”
“There lurks within the system an institutional instinct which, under pressure, will prefer concealment, formulaic responses and avoidance of public criticism” and “an institutional culture which ascribed more weight to positive information about the service than to information capable of implying cause for concern.”
The
second reason is a difficulty with having honest conversations about bullying
or racism. We are anxious about raising concerns or admitting mistakes. In too
many organisations difficult conversations about bullying or discrimination
fail as “protective hesitancy” is triggered or a blame culture inhibits
openness for fear of the consequences.
The
third reason is the flawed paradigm which dominated much NHS HR approach to
tackling workplace culture strategy until recently, in which the existence of
policies, procedures, and training were seen as the key to make it safe and
effective for individual members of staff to raise concerns about bullying,
discrimination, unfair disciplinary action and unsafe practice. There is now a
move towards a much more proactive and preventative approach, but there is
still, too often, an excessive reliance on policies, procedures and training as
HR departments drown in transactional work.
Yet
research suggests this approach is fundamentally flawed. For example, a recent
ACAS review concluded that “In sum, while policies and training are doubtless essential components
of effective strategies for addressing bullying in the workplace, ……. research
has generated no evidence that, in isolation, this approach can work to reduce
the overall incidence of bullying in Britain’s workplaces.”
Similarly,
Kalev
and Dobbin found in a major study of diversity initiatives in 708 US companies
that “attempts to reduce managerial bias through diversity
training and diversity evaluations were the least effective methods of increasing the proportion of women in
management.” They
criticised, what they called the “methodological individualism” which relies on
individuals to challenge institutional shortcomings.
A different approach is needed (and is gaining some traction) in which NHS employers make it their responsibility to be proactive and take a “public health” approach, to workplace culture, using data to identify hot spots of poor practice (and good practice) and thus help change the organisational climate which permits discrimination, bullying or a blame culture.
Moving forward
So what should be done, since we do
now know what some of the shared characteristics of effective interventions
are?
Firstly, as in any other NHS challenge we should avoid “comfort seeking” information and seek out challenging data. Data does not explain why there is a problem but it will highlight where problems (and good practice) exist. In the NHS we have a wealth of workforce and staff survey data to draw on.
Secondly, improving the opportunities for, and treatment of, staff are not just about statutory compliance but about service improvement. Treating staff better is good for staff, organisations and patient care. There is a raft of evidence now that inclusion, psychological safety, and the ability to have difficult conversations, can radically improve how staff are treated and improve creativity, productivity, innovation, risk awareness, turnover and team working.
Thirdly, we should refuse to collude
in unevidenced interventions. Too many Action Plans on bullying, recruitment, and
discipline still resemble tick boxes rather than evidenced plans. Changing
biased outcomes in recruitment or development require a multifaceted approach
rather than reliance on individual “silver bullets” such as unconscious bias
training or placing a BME person on a panel. Those proposing workforce
interventions should always be asked to explain “why what is being proposed is
likely to mitigate or remove the problem that’s been identified?”
Fourthly, data driven accountability at every level is the cornerstone of good management and leadership. That does not mean the Board quietly meeting and deciding what everyone else should do. Nor does it mean thumping the table when things go wrong. It means patiently engaging and discussing with staff and managers what the challenges are, what the research and data says, and then what should be done, how, why and when. Wherever possible, support should drive change but senior managers responsible for recruitment, promotion, staff development, discipline and turnover will need to explain why patterns of behaviour and outcomes fall short of what is required and agreed – and then be expected and helped to change outcomes.
Fifthly, leaders who do not model the behaviours they expect of others have no chance of changing workplace culture. Leaders who talk the talk but don’t walk the walk cannot change the cultures of an organisation. We should beware the fad that somehow “changing culture” can change behaviours when the evidence suggests that, to the contrary, changing behaviours is what will change culture.
Sixth,
we need to recognise that whilst the principles underlying effective change are
simple, undertaking and sustaining change can be complex. Take recruitment. We
know there are numerous ways in which bias can creep into recruitment and
promotion processes. We know that successfully challenging individual decisions
is usually almost impossible for individual members of staff. Data driven
accountability, however, can help challenge patterns of bias and then
adopt specific interventions which draw on the research about bias so we can
mitigate or remove it.
One
critical driver of disciplinary investigations is when managers feel unable to
have informal honest conversations with staff when mistakes are made or
behaviour is inappropriate. The shared characteristic of effective
interventions is a speedy response, a focus on learning not blame, and the
insertion of accountability so managers cannot commence a formal investigation
without explaining to a very senior manager why that was the appropriate
response to an incident.
Eighth, in bullying even more than any other workplace culture challenge, individual grievances are not the way forward. Even if they win, the member of staff often has to leave their employer. In bullying, the first challenge is an acceptance there is an organisational problem. It is not enough to just hold individuals to account because it is the organisational climate from the top that permits or encourages bullying that has to stop.
Ninth, it is essential that those groups of staff most impacted by specific toxic aspects of culture have their voice heard and their lived experience understood and influence change. That means, for example, that staff who have been victimised for raising concerns should influence safe cultures for raising concerns, that BME staff impacted by discrimination are heard loud and clear within the board room, and so on.
Tenth, a mix of accountability and scrutiny will involve consequences. These may be incentives or they may be sanctions but they must be linked to transparency. They may involve measurable targets (what gets counted is what gets done). Initiatives such as the Workforce Race Equality Standard (WRES), which is both contractual for healthcare providers (public and private) and inspected against by the CQC, were created around this evidence base. The long term success of the WRES, for example, if it is to build on its initial progress, will require a relentless focus on using evidenced interventions.
There are some signs that national NHS leaders are starting to understand the importance of workplace culture as being more than declarations. There is no quick fix to change the treatment of staff in a sustainable way. It requires more than declarations, speeches and policies. It requires an understanding of how such change can take place and be sustained. Serious progress on workplace culture is essential and possible even at a time of immense funding pressures, but only if we learn from what has gone before.
Shot of a group of businesspeople interviewing a candidate in an office
Joy Warmington is Chief Executive of BRAP and holds an honorary doctorate from Middlesex University. Roger Kline is research Fellow at Middlesex University Business School. Here they highlight some of the issues with recruitment processes that are preventing organisations from becoming more diverse.
We know current recruitment practices repeatedly favour some groups of staff at every stage of recruitment, development and promotion leading to a loss of talent. We know that the evidence shows that diverse workforces and leaderships that are inclusive are likely to be more productive, creative, innovative and engaged. We now know that the reasons women, BME and disabled staff fail to get fair treatment in recruitment is because of multiple forms of bias that influence appointment panels to choose people who ‘fit in” or are “like us” so that too often individuals are hired because of who they are – rather than what they can do.
Understandably, the focus for helping change this lands on the recruitment process. How we shift this pattern depends on two simple things:
what we believe are the reasons behind un-diverse appointments?
what steps are we prepared to take to challenge the status quo?
The lack of diversity in appointment processes, has been, and often still is seen as the fault of the applicant. There are a range of measures employed to ‘fix’ this – including widening advertisement processes so that it is likely to attract more marginalised communities, using a range of innovative means (open days, tasters, shadowing opportunities) to help demystify roles and encourage applications, and getting further down-stream by reaching into schools to promote opportunities. This “deficit” model may be helpful but doesn’t tackle the core of the problem.
Unconscious bias in interviews
Interviewing has historically been seen as an essentially fair process, but research is beginning to recognise its inherent faults. In our attempt to address these faults, organisations have spent more time ‘tweaking’ the interview process than we have recognising that people work within a system that replicates unfairness, and that they too become part of this system.
Unconscious bias training is one step that organisations often take to address unfairness in recruitment processes. Fundamentally, it can be right to point out that all of us have biases, and that we actively replicate these in our lives – including as part of the recruitment process. This type of training is very varied – it ranges from the application of the implicit bias test (which analyses bias through an algorithm), power point workshops, through to more active training and development opportunities. As we have pointed out previously, and as the recent EHRC review shows, although some experiences are no doubt better than others, all come with the health warning that understanding our adverse biases doesn’t mean that we are capable or indeed willing to change them.
The ‘diverse’ panel
Another increasingly popular strategy is the inclusion of a ‘diverse’ individual as part of the interview process. This has become increasingly common yet the evidence base for it is pretty thin. The impact of ensuring selection panels include women, for example, is mixed. Some studies show that as the numbers of women on a panel increase, the more likely it is that women will be selected but other researchers have found the opposite. One study found that when a woman was the only female member of a high-prestige work group and was asked to vote on another candidate for the group, she is much more likely to choose a male candidate than a female one. In summary the evidence is mixed.
That does not mean diverse panels are a bad idea. Intuitively they can be a positive step, but its significance can easily be over-stated especially when done in isolation. We have unfortunately seen some organisations make this the cornerstone of their approach, yet it can easily risk becoming tokenism.
In one organisation BME staff were invited to be panel members but not be part of the shortlisting process.
In another organisation the main role for BME panel members was to ask “the equality question.”
In a third organisation, BME staff who were significantly more junior than panel members were invited to join panels, but without equal authority on the panel that would make up for their more junior status.
In a fourth organisation BME staff were mandated to join panels without more than token training and irrespective of whether they wanted to join the panel or felt able to contribute substantially.
All these approaches (and there are variants including one where the only panel members required to have unconscious bias training were the additional ones with protected characteristics) have at their core the idea that the responsibility for recruiting diversely is substantially remedied by the inclusion of someone who is diverse.
Interview processes are inherently flawed – even before you include someone in them who is more diverse. There is a tendency for those who interview not to have received any proper training on the specific ways in which bias creeps into the best-intentioned interview and their role on the panel is simply based on their position – rather than their skills in choosing good candidates. Furthermore there is no point in doing this training unless it is put into practice as part of the interview process. How many processes discuss and review biases and their decision making – and recognise this as part of the journey to a fairer decision?
This shortcoming is compounded by the seniority of the line manager who generally chairs and who can ‘trump’ other panel members. If the appointment is specialist in nature, then again, the final say on the appointment may well rest with the ‘specialist’.
There are all sorts of specific ways in which bias can be mitigated within the appointment process – from how the job is described, where it is advertised, what the “essential criteria” are, how shortlisting is done, how the core competencies and behaviours required are tested, and including the interview itself. Without serious attention to these, an additional “diverse” panel member will not make a serious difference.
Setting an expectation
At the heart of successfully building diversity into recruitment processes, including interviews, is accountability. When departments and professions are held to account over patterns of recruitment which show it is much more likely that men will be appointed, or white applicants will be appointed, or staff with disabilities rarely get appointed, then a “comply or explain” challenge – explain the data or change the outcomes, does work. That does not mean telling individual panels which individual to appoint. But it does mean setting an expectation – a performance indicator that says that irrespective of their backgrounds and characteristics, once shortlisted there should be no radical differences between the likelihood of different groups of staff being appointed. There is evidence that targets linked to accountability do work.
In an imperfect system run by imperfect people our willingness to recognise our “faults” can bring us closer to realising the opportunities that often lie right under our nose. Let’s think more critically about the whole process of recruitment rather than just trying to put in quick fixes that have limited fixing ability. And lastly, let’s be clear about the expectation – boards should be concerned about shoddy or unfair decision making – poor recruitment patterns are not ‘accidental’, they replicate the status quo.
Andy Bossom is Senior Corporate Executive at Middlesex University. Here he shares some insights from the recent Consalia Global Sales Transformation Conference.
I spent a thoroughly enjoyable day at the Consalia Global Sales Transformation Conference, supported by Middlesex University in early October. The extremely timely theme was “Where Resilience Meets Disruption”.
We all intuitively feel that the workplace is changing and changing fast, but how does this impact on the world of Sales and Business Development? This innovative conference brought together a number of senior business leaders in an attempt to address the issues.
Collaboration, resilience and team work
We were treated to the truly inspirational story of Menna Fitzpatrick and Captain Jennifer Kehoe – Gold Medalists for the GB Paralympic Skiing Team. Menna has only 5% vision but with her tremendous determination and team work with her sighted colleague Jen, she succeeded in her goal of winning gold!
A lesson in collaboration, resilience and team work which we can all take into the more humdrum business world. Artificial intelligence and disruptive technology are causing many sales professionals to reevaluate their approach to client relationships. Most delegates still felt that face to face meetings were still an integral part of their method of working, but could be enhanced by increased data, metrics and research opportunities.
Sarah Edge (General Manager, UK & Ireland) from HMD Global gave a fascinating insight into the way the Nokia phone brand is forcing itself back into an extremely crowded and competitive telecommunications market. Some young people are actually beginning to shy away from the ubiquitous smart phone in an attempt to claim back some of their social lives!
Mobasher Butt (Chief Medical Officer) from Babylon gave a compelling account of how artificial intelligence can be used to anticipate and manage mental wellbeing. His fascinating presentation opened up the debate about stress and pressure in the work place. A number of delegates spoke passionately about their own mental health issues, and crucially the ways they have overcome such health concerns to fully succeed and excel at work.
Employers are certainly beginning to wake up to the fact that a happy and contented workforce will be more productive within the business. Despite some taboos being slowly broken down, the general consensus was that there is a long way to go to ensure that employees’ mental health issues are always treated with empathy, compassion and support.
The Business to Business Sales Degree Apprenticeship
The event, held at the prestigious London Stock Exchange, was finished in style with a fascinating panel discussion about the new Business to Business Sales Degree Apprenticeship – run in partnership between Consalia and Middlesex University. We were lucky enough to have some real life apprentices enrolled on the very first cohort on the stage talking about their experience of the programme.
Stacey Firn and Cat Arnold are Account Managers with Royal Mail and they both spoke very eloquently about the transformative effect of their apprenticeship and how they balanced degree level study with the rigours of work. They emphasised the tremendous support they received from their managers at Royal Mail and how this is essential to ensure they will succeed in their studies.
It was such an inspirational way to the end the conference that I am already looking forward to the 15th version of the annual event to be held the same time next year!
Some of the questions to ask your organisation are:
Are you maximising your Apprenticeship Levy?
Do your employees have the communication skills to rapidly ski downhill?
Does your sales team have the skills it needs to succeed?
Is there a need for any sales or management training?
For any further help or support please contact the Corporate Engagement Team at Middlesex University on either 020 8411 5050 or corporate@mdx.ac.uk
Dr Lilian Miles, Senior Lecturer in Law, has been leading a project to advance the sexual and reproductive health rights of women migrant workers in Malaysia. Here, Lilian highlights the impact of this work and how it can be used to further improve the situation of migrant women working in the country.
Objectives of Funding
I led a research project funded by the United Nations Gender Theme Group, Malaysia (April 2017-April 2018) to investigate how the sexual and reproductive health (SRH) rights of women migrant workers in Malaysia can be protected. There was a particular interest in this country, given that it continues to be one of the largest importers of labour in Asia. Women migrant workers constitute a significant workforce in its manufacturing, service and domestic sectors. They work under severe and punitive conditions in Malaysia, with few rights and entitlements at work and in their communities. Their SRH needs are largely ignored.
Together with our Malaysian collaborators from Universiti Sains Malaysia, and our own Professor Suzan Lewis (Department of Management, Leadership and Organisations), we investigated the barriers and challenges to meeting these women’s SRH needs. We explored the extent to which their allies can support them in their journey toward empowerment so that ultimately, they can assert their SRH rights. We focused on women factory workers, since for research purposes, they were a sizeable and visible workforce. After organising one workshop, conducting a literature review (which looked at interventions in other Asian countries to meet SRH needs of women migrant workers), and engaging in five months of empirical work (uncovering challenges in the local context and recommending solutions), we developed the first ever SRH toolkit in Malaysia for use by these women’s allies and other stakeholders who come into contact with them. These include NGOs, unions, health care providers, employers, foreign embassies and government. The toolkit both challenges and encourages allies and stakeholders to evaluate their practices against evidence-based good practice to advance these women’s SRH rights. Indeed, if allies and stakeholders can support women migrant workers in this area, this will lead to reduction of the effects of poor SRH practices, increased health-seeking behaviours and healthier workforces.
The toolkit
Briefly, the toolkit focused on improving knowledge of SRH among the women migrant worker community, setting up workplace interventions to meet the SRH needs of these women, and training healthcare providers to offer responsive SRH services to women migrant workers:
Increasing knowledge among women migrant workers of SRH: many women migrant workers did not understand what SRH meant, or else refused to acknowledge/are not aware they had SRH problems. SRH is a taboo subject which is regarded as personal and shameful and consequently women did not talk about it, leading to undiagnosed problems. We recommended a variety of ways in which unions, NGOs and healthcare providers can help these women understand the importance of SRH (educational materials, forums, mobile technology, social media) and adopt health-seeking behaviours.
We recommended setting up interventions in the workplace and involving employers. The factory is a direct point of contact with women migrant workers. It is also a forum whereby employers can come together with other stakeholders to jointly address the SRH needs of the women migrant workforce. Among workplace interventions which can be set up are mobile clinics, counselling hotlines, awareness creation forums and training of male supervisors to be aware of SRH needs.
Healthcare providers (doctors, community nurses, pharmacists) can help increase women migrant workers’ health literacy, provide “culturally competent” care and help them navigate the healthcare system. We recommended training of healthcare providers in meeting SRH needs of women migrant workers, and for links to be established between the healthcare community, employers and these women and their champions to develop workplace interventions.
What is the impact of the research?
The toolkit was welcomed by many stakeholders in Malaysia. To my mind, the impact of the research is three-fold: first, it underscored a need for further research to be undertaken by Malaysia’s academic community to address the SRH needs of women migrant workers. This is a critical area of investigation, so far overlooked by researchers. Secondly, already, women’s NGOs and healthcare providers have integrated toolkit’s recommendations in their daily practice, in particular how to create awareness on the part of women migrant workers of the importance of taking care of their SRH, and in developing novel ways in which SRH healthcare can be brought into the workplace. A few employers were willing to ‘trial’ practices in the toolkit, which was exactly what we had hoped for. Finally, the research has highlighted the urgency of this aspect of health nationally, and the UN Gender Theme Group is working hard to have women migrant workers’ SRH needs regarded as a priority issue.
What next?
We are working with the UN Gender Theme Group to explore ways in which the toolkit can be implemented fully in factories. We hope to pilot a project to raise SRH awareness, implement mobile clinic schemes to attend to SRH needs in the workplace, and collaborate with healthcare providers, unions and NGOs to provide better support for these women. The training of women migrant worker leaders will be a crucial aspect of the pilot.
Moving forward
The process of developing the toolkit was a challenging one, in light of a context characterised by resistance from a range of stakeholders who come into contact with women migrant workers, and crucially, a deep lack of knowledge about SRH issues on the part of women migrant workers themselves. There are, nonetheless, many supportive stakeholders who believe passionately that there is no distinction between migrant women and local women (all are entitled to the same healthcare), and many stakeholders invested time and resources in helping develop the toolkit. A small cluster of stakeholders will participate in the pilot project.
We are very grateful to the United Nations Gender Theme Group, Malaysia, for their generosity, which has enabled us to research an area which is of critical importance, yet which has so far been ignored.
The number of strike actions taken in the UK has been in decline for a number of years. Dr Ian Roper, Associate Professor in HRM, sheds some light on the reasons for this reduction in strikes, and examines whether it means we’re happier at work or are simply expressing our dissatisfaction in other ways.
On 30 May 2018 it was widely reported that the level of strike activity in the UK in 2017 was the lowest ‘since records began in 1891’. This makes for quite a dramatic headline. On the eve of Middlesex University hosting the annual British Universities Industrial Relations (BUIRA) conference, it warrants an examination of whether this is an indicator that a seemingly ever-present feature of the British workplace – conflict – is now a thing of the past.
The official statistics reported that the total number of stoppages – one measure of strike activity – was just 79. That is, indeed, the lowest on record. In terms of working days lost, that figure was 276,000 (the sixth lowest figure) involving 33,000 workers (again, the lowest figure on record). That these figures suggest a strong decline in strike activity is not in contention. Nor is it in contention that this is the latest figure amongst a general trend. Figures show how the latest figures compare to, for example, some peak years. In 1984, the year of the miners strike, 27.1 million working days were lost. In 1926, the year of the general strike, 162.2 million days were lost.
What the figures do not show, however, is whether the fall in strikes is a good indicator of workplace conflict itself declining or, its corollary, that workplaces are now more harmonious. There are good reasons to suggest that this is not the case.
Restrictive regulation
The reasons for falling strike levels have to take into account the circumstances in which a strike may take place in the first place which is, in fact, complex. First there needs to be a perceived collective grievance among the workers. Second, there needs to be the capability to mobilise – and this further requires a union with sufficient membership density; a capacity to organise its members and confidence that the action taken will be sufficiently disruptive to bring the employer back to the bargaining table.
In addition to the convergence of these factors, unions have to comply with some of the most restrictive regulatory mechanisms in the developed world brought in progressively since the Thatcher governments of the 1980’s, the most recent being the Trade Union Act 2016. This latest set of restrictions on strike action requires a union to not only win a majority of its membership to vote in favour of a strike; but that turnout in the ballot must be at least 50%; and that for those workplaces deemed to be “important public services” in addition to a majority, and a 50% turnout, at least 40% of the whole membership (rather than just those voting) must vote in favour of a strike. This series of conditions, it has frequently been pointed out, could not be applied to the votes obtained to elect the majority of Members of Parliament.
In contrast to much of the public discourse on strikes which emphasises the inconvenience to which it sometimes puts members of the public (particularly in the case of public transport or schools), there has been a less visible campaign to restore union rights to make union negotiating power something closer to the veto power wielded by employers. Much of the regulatory framework on industrial action is concerned with employer rights to legally challenge union ballots. In 2007 the, then backbench MP, John McDonnell attempted to challenge much of this in the (unsuccessful) Trade Union Rights and Freedom Bill 2007
Displacement of dissatisfaction
Turning now to the second factor. If strikes could be said to be low because they have been suppressed by regulatory constraints, then where does the conflict go? Here the ‘displacement’ argument goes that conflict is now directed into informal and individualised forms. The most visible form of individualised conflict can be observed in Employment Tribunal (ET) statistics. Introduced as an add-on to training legislation in 1964, the ET system has increased in significance as a semi-legal means for workers (often via unions) to seek an external means to challenge employer decisions on issues such as unfair dismissal and discrimination issues. ET claims have increased in inverse proportion to that of the declining strike rates. As such, ETs have also come under some scrutiny by Government.
Sadly, as with strikes, the solution to indicators of increased dissatisfaction has not been to seek out the causes of conflict, but to suppress the manifestation of it. So in 2013 the Conservatives ‘reformed’ the ET system by introducing up-front fees for claimants with the express intent of reducing the number of claims. This resulted in a dramatic fall in claims, particularly severe in cases of equal pay and discrimination. However, in 2017 upfront fees were deemed unlawful by the supreme court. The result was a similarly dramatic 90% rise in claims in 2018.
Other less formal indicators also support this ‘displacement’ theory. It is now regularly reported that the number of days lost to sickness absence far exceed days lost to strike action. Compare, for example, the days lost to strike action, above, to the 137.3 million days lost to sickness absence in 2016. Of course the breakdown of these sickness absence figures may be more revealing if it were possible. How much of it is genuine, but work-related? And how much may be ‘pulling a sickie’ by (disgruntled?) workers? Some of the overall figures are undoubtedly an indicator of conflict: industrial injury and work-related stress leading to an increase in mental health problems more broadly.
All in all, the reasons strikes are low, are at least partly due to the difficulty in meeting all the conditions needed to call a strike. Given that indicators of more individualist forms of conflict suggest a displacement of conflict, the lower levels of strike activity cannot be attributed to an increase in worker satisfaction.
A final thought
If there is a prevailing discourse suggesting that workplace conflict is a thing of the past, because strikes are a thing of the past – both assertions which we can now assert are inaccurate – how is this distorting how we see the activities of human resource management in practice? I have argued elsewhere that workplace conflict is an issue somewhat absent in national discourses of HRM, yet features much more prominently at organisation level. Aspiring HR professionals would do well to keep informed on what is going on in the field of employment relations, both professionally, through employment law updates provided by the likes of the CIPD, and academically, not least in such events hosted by BUIRA.
Plenary sessions at BUIRA 2018 will include a debate on strikes by John Kelly, Phil Taylor, Jo Grady, Rachel Cohen and Sean Wallis.
a mid adult doctor speaks with a colleague on the hospital ward ,with a young male nurse , patient , and relative in the background.
In this post Roger Kline, Research Fellow at Middlesex University Business School, examines a new consultation document from the Nursing and Midwifery Council, which includes long-overdue changes to the NMC’s Fitness to Practice processes.
On March 28th 2018 the Nursing and Midwifery Council agreed a public consultation document on Fitness to Practise that states there is a pressing need for further change to fitness to practise for the following reasons:
A growing body of evidence suggests that an unintended consequence of regulators’ current fitness to practise model is a culture of blame and denial. That runs contrary to the values of openness and learning that are central to a patient safety culture.
We know from our own research that black and minority ethnic nurses and midwives are more likely to be referred to us by employers. That disproportionality creates a perception of unfairness which, again, runs contrary to patient safety,” Paper NMC /18/33.
Step forward anyone who would have imagined this five years ago.
The regulators of UK healthcare professionals have been heavily criticised (including by me) in recent years. Those criticisms have included failing to get the balance right between blame and learning; an inability to hold employers and senior managers to account whilst drawing individual registrants into long and damaging processes which are not obviously in the interests of patients but are damaging to staff; not supporting whistleblowers who are referred to the NMC as punishment; not sufficiently taking account of the context (such as staffing shortages, or bullying) in which fitness to practice is questioned; and failing to respond to patterns of the disproportionate referrals of black and ethnic minority registrants without questioning why patterns exist.
In some senses, the regulators have mirrored the failings of employers who themselves have too often focussed on individual blame rather than systemic failings, on individual lapses rather than the context which made shortcomings in practice likely. The pattern of disproportionate referrals of BME staff to regulators reflect the pattern of disproportionate disciplinary action against BME staff in the NHS.
Why a new strategy?
So what has led to this change?
Firstly, there is a growing understanding within healthcare that learning from mistakes and poor performance is rather more productive than finding scapegoats for what went wrong. Fifteen years ago An organisation with a memory emphasised the importance of understanding systemic shortcomings rather than individual errors. More recently the thinking of patient safety advocates such as Sidney Dekker and the relentless work of the Clinical Human Factors Group has been influential.
Secondly, is a growing understanding that how staff are treated is intimately linked to the care and safety provided to patients. Staff engagement, respect and compassion are good for staff and patient care and safety whilst bullying and discrimination are not just morally offensive but are unacceptable because they waste talent, damage staff health, increase turnover and absenteeism, and are linked to poorer and less safe care. In particular, strong correlation has been established between the treatment of Black and Ethnic Minority staff (one third of doctors and one fifth of nurses and midwives) and the treatment of (all) patients. This understanding has led to the NHS Workforce Race Equality Standard, and a strategy for leadership development that explicitly links this evidence to healthcare improvement.
Thirdly there is now an awareness that the previous (unevidenced) dominant HR paradigm of primarily relying on policies, procedures and training to enable individual staff to challenge bullying, discrimination or unfair treatment was unlikely to ever succeed. Instead, the best employers are now emphasising the employer’s responsibility to proactively intervene, prevent (not just respond to) unfair treatment and to try to ensure staff are treated fairly.
Parallels with disciplinary action
There are important overlaps between these themes which can decisively help in reducing levels of bullying, tackling discrimination and reducing the scale of unnecessary disciplinary action in the NHS, and in particular the disproportionate impact of such action on BME staff. Early evidence from a number of NHS trusts suggests, for example, that inserting some form of accountability prior to any disciplinary investigation being started would help shift the focus from blaming individuals to considering system failures that are the predominant causes of errors. Together with applying the science of “human factors” which focusses on system shortcomings not just individual failings might allow healthcare employers to follow the expectation of the courts that they stop their “knee jerk” use of disciplinary suspensions.
It is much more likely that BME staff will enter the disciplinary process, and research suggests a prime reason for this is the failure of managers, at the point at which when errors or poor performance occur, to have the same informal and honest conversations with BME staff that they should normally expect to have with white staff. A small but growing number of NHS Trusts have demonstrated that radical reductions in the levels of disciplinary action, and not only for BME staff, can be achieved in ways which also prompt learning, not blame.
The nursing regulator sees the light too
I know from discussions with the NMC that their new strategy is in part a response to these developments. It is also a response to research commissioned by the NMC in which Elizabeth West and colleagues confirmed the nature and scale of disproportionate referrals of BME staff from employers, but interestingly not from members of the public.
The paper approved by the NMC Council on March 28th rightly states that:
“We consider that effective and proportionate fitness to practise means putting patient safety first, and that an open, transparent and learning culture will best achieve this. We are not alone in thinking that a culture of blame and punishment is likely to encourage, cover-up, fear and disengagement.”
It goes on to explain that:
“To achieve these aims, we need to take a consistent and proportionate approach to fitness to practise. We also need to be fully transparent and accountable… We will need to deal with concerns when they are serious enough that we need to take regulatory action to ensure patient safety, or because they cannot be managed locally… In these types of cases we should take into account the context in which patient safety incidents occur and also enable registrants to remediate concerns at the earliest opportunity. Then we should only hold hearings where there are real areas of dispute to be resolved.”
New strategic principles
The proposed strategy sets out its two “desired regulatory outcomes” as:
“A professional culture that values equality, diversity and inclusion and prioritises openness and learning in the interests of patient safety.”
“Being fit to practise means that a registrant has the skills, knowledge, health and character to do their job safely and effectively.”
The consultation document sets out a number of (welcome) strategic principles which include:
“Fitness to practise is about managing the risk that a registrant poses to patients or members of the public in the future. It isn’t about punishing people for past events.”
“We will take account of the context in which the registrant was practising when deciding whether there is a risk to patient safety that requires us to take regulatory action.”
“We may not need to take regulatory action for a clinical mistake, even where there has been serious harm to a patient or service-user, if there is no longer a risk to patient safety and the registrant has been open about what went wrong and can demonstrate that they have learned from it.”
The paper argues there will always be instances where disciplinary action by employers and regulatory action by the NMC is appropriate:
“We will always take regulatory action when there is a risk to patient safety which is not being effectively managed by an employer.”
“Deliberately covering up when things go wrong seriously undermines patient safety and damages public trust in the professions. A registrant who does so should be removed from the register.”
“We will only take regulatory action to uphold public confidence if the regulatory concern is so serious that otherwise the public would be discouraged from using the services of registrants.”
“Some regulatory concerns, particularly if they raise fundamental concerns about the registrant’s professionalism, can’t be remedied and require removal from the register.”
A change of culture
The paper calls for “a professional culture that values equality, diversity and inclusion and prioritises openness and learning in the interests of patient safety” and explains that:
“When looking at harm, we need to differentiate carefully between accidental errors or failures in the system, and deliberate or reckless behaviour and those who conceal patient safety concerns… Maintaining public confidence in the professions doesn’t mean that we need to punish people when something goes wrong. Making a registrant go through a lengthy fitness to practise process just to punish them would be counterproductive, given that a blame culture undermines patient safety.”
The paper continues:
“Research also tells us that our current fitness to practise processes don’t contribute to a healthcare culture that values diversity, equality and inclusion. There is an overrepresentation of registrants from outside the EU and from black and minority ethnic (BME) backgrounds in fitness to practise proceedings, driven by disproportionate referrals from employers.”
This is not just an issue for nursing and midwifery registrants. The paper notes that:
“This is a concern in other parts of the regulatory sector. General Medical Council research found that BME and non-UK doctors are overrepresented in investigations, (General Medical Council: ‘The state of medical education and practice in the UK 2015’ (pp. 58- 83) ) while five years of General Dental Council hearings data reviewed by the British Dental Journal in 2009 showed that dentists trained outside the UK made up 42% of registrants charged (Singh et al ‘A five-year review of cases appearing before the General Dental Council’s Professional Conduct Committee’ British Dental Journal vol 206 no. 4 Feb 28 2009).
The PSA too
At its Board meeting the week previously the Professional Standards Authority (the regulator of professional regulators) finally moved in a similar direction by including a new draft Standard 3 on diversity, for consultation, which adds a new requirement that:
“The regulator understands the diversity of the registrant population and its service users and ensures that its processes do not impose inappropriate barriers or otherwise disadvantage people with protected characteristics”.
Reflection
This changed paradigm for the regulation of nurses and midwives is very welcome. However, setting out the new strategy is one thing, applying it may be another. To do so successfully will inevitably mean the NMC will need to:
Query why some employers have much higher levels of referrals than others and what the implications for a learning culture are
Ask some employers why BME nurses and midwives are being disproportionately referred. NMC investigation panels and staff will need to rethink how every referral is handled
Insist on greater diversity on panels and amongst senior staff at the NMC
Query employment practices within some employers which discriminate against some BME registrants (deliberately or otherwise)
As the strategy itself explains this will involve the NMC “holding full hearings only in exceptional circumstances”
Acknowledge the evidence that referrals can seriously damage the health of nurses and midwives most of whom are cleared eventually of any breach of the NMC Code.
There are elements of the report which need scrutiny, notably regarding transparency in those hearings that do still take place. But, in my view, this welcome consultation document signals that the NMC is now serious about adopting an evidenced approach which draws on human factors and the evidence of discrimination. At a time of immense pressures on front line staff and their managers it has never been needed more. The real test now is whether this change of direction in policy can be effectively translated into improved practice. For that to happen will requiring not only holding the NMC to account, but the leadership of nursing and midwifery throughout this land. Read it and decide for yourself.
Roger Kline is Research Fellow at Middlesex University Business School. He was previously joint director of the NHS Workforce Race Equality Standard implementation team. He was co-author with Michael Preston Shoot of Professional Accountability in Social Care and Health: Challenging unacceptable practice and its management (Sage. 2012)
Shot of a group of colleagues having a brainstorming session in a modern office
Dr. Tim Evans, Professor of Business and Political Economy at Middlesex University London, and Dr. Sarah Morris, Coaching Partner, The Parallax Partnership, explore the latest evolution in organisational management.
Darwinism suggests that natural selection favours those who are able to adapt to changing environments. The same is true in the structure, management and practice of enterprises be they private or public.
Since the advent of the industrial revolution, when the blueprint for many modern organisational practices were first developed, prevailing social, cultural and operating conditions have changed out of all recognition.
Yet many organisations struggle to keep up and find it difficult to cope with an increasingly volatile, uncertain, complex and ambiguous (VUCA) environment. This is made all the more challenging because people’s expectations of work are also more complex than ever before.
Teal organisations
It is in this context that Frederic Laloux’s recent book detailing the growing success of Teal Organisations is so important. In his seminal Reinventing Organisations, he identifies an outdated and poorly adapted operating system – namely, the traditional pyramidal hierarchy and the ‘predict and control’ processes which underpin it – as being the root cause of some of the most intractable issues business organisations face today. Classically, senior executives burnout, people become frustrated with overload, decisions are endlessly bottlenecked, and innovation and responsiveness die.
Gary Hamel and Michelle Zanini refer to these symptoms as being the consequence of what they term ‘bureaucracy’. In their recent study of 7,000 respondents, they suggest that only 1% of modern organisations have a healthy BMI – or ‘Bureaucracy Mass Index’.
In many ways, the evidence is as clear as it is shocking. Nearly 40% of respondents say that their ability to deliver value would be either unaffected or enhanced by a 30% reduction in the number of head office staff. More than 80% report new ideas would likely encounter indifference, scepticism, or outright resistance. And nearly 60% assert that organisational change programs are ‘mostly’, or ‘almost always’ focused on catching up.
Real and lasting change
Organisations with the courage and capacity to face these realities realise that solutions demand more than mere tinkering with organisational charts, reporting lines or the numbers of levels of bureaucracy. Real and lasting change demands root and branch action.
Laloux describes ‘Teal’ organisations by building on terminology derived from an extensive raft of developmental work undertaken by the likes of evolutionary and social psychologists such as Jean Gebser, Clare Graves, Don Beck, Chris Cowan and Ken Wilbur. Variously, these frameworks explore the development of human consciousness and their historic impact and implications.
As an ideal type construct, the Teal mind-set represents the leading edge of current evolutionary development, and like each stage which preceded it, is characterised by a number of unique breakthroughs. As such, Teal is centred on a move away from rigid hierarchies and toward an operating system based around networks of self-managed teams. It moves beyond the ‘predict and control’ mind-set of management’s past to a purpose-led ‘sense and respond’ approach. Finally, Teal stresses ‘wholeness’, a world in which organisations view people bringing their whole selves to work – all their interests, passions and desires – as an important business asset. As such, ‘employees’ are encouraged to step out from behind their business persona to reveal and capitalise on their core truths and realities.
These three breakthroughs are fully enabled by the ability for pioneering Teal organisations, such as Patagonia, Nucor, Morning Star, Buurtzorg and Spotify, to nurture cultures which are based on profound levels of trust. Trust that people at all levels want to, and are capable of, doing the right things at the right time, given the opportunity and necessary support. Clearly defined rules of play allow the dissemination of power away from individuals concentrated at the top, instead distributing power throughout the structure and way down to those on the front-line, who, after all, are very often the primary sensory organs of any business.
Organisational dynamism
Freed from the necessity to wait for permission to act when they spot issues or opportunities, such employees can respond quickly and creatively to even small changes in the environment. Overall, such an approach produces an organisational dynamism that many increasingly envy, for it allows organisations to evolve on an ongoing basis and thereby avoid the need to ever play ‘catch-up’. Crucially, such enterprises generate their own organic capacity for continual and seamless renewal.
For those willing to embrace this evolutionary next step, the future is all about seeing the nurturing of individuals and their humanity as a business asset, and replacing fixed long-term strategies with a guiding purpose, a ‘North Star’, against which micro-evolutions in structure, direction and products occur, vastly increasing organisational responsiveness.
As the Teal revolution gathers pace, so its results become ever clearer. To date, Nucor has delivered more than a 350% return on investment for its shareholders. Buurtzorg has sickness and turnover levels at 60% and 33% lower than its more traditional competitors. And Patagonia has tripled its profits since 2008, with a compound annual growth rate of more than 14%.
Today, too many business organisations are creaking under the weight of an antiquated hierarchical and formulaic operating system that no longer keeps pace with the rapidly changing world.
That is why Teal innovators are destined to impact ever more organisations and sectors over the years ahead. For in meeting head on the challenges of the VUCA environment, they prove that there are real world alternatives that truly enable organisations to capitalise on ever-evolving opportunities. As this new paradigm develops, so its impact will be felt globally. In 2018, the future is clear: it is going to be Teal.
European Court of Human Rights - Strasbourg, France. An international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols.
On 15 December 2017, Judge Paulo Pinto de Albuquerque spoke to students and staff at Middlesex University about reforming the European Court of Human Rights. Alice Donald and Philip Leach (Middlesex University School of Law) summarise and discuss his principal points.
Judge Pinto de Albuquerque was elected as a judge at the European Court of Human Rights in 2011. Prior to his election, he served as a judge on several different courts in Portugal between 1992 and 2004. Since 2015, he has been Professor Catedrático of Criminal Law at the Law Faculty of the Catholic University of Lisbon.
In his presentation, and in the Q&A which followed, Judge Pinto de Albuquerque discussed a number of the critiques which have been made of the Court by politicians and commentators, who have challenged it for allegedly exceeding its mandate and interfering unjustifiably in domestic democratic decision-making. He described these critiques as based on false premises, while observing that they had brought the Court to ‘rock bottom’.
European Court of Human Rights – Strasbourg, France.
Judge Pinto de Albuquerque also highlighted the legal uncertainty and abdication of judicial power which in his view has been the result of the trend in the Court’s case law, when it is considering whether a national law violates human rights, to assess the process by which the law was made rather than the substance and impact of the law – and to defer to some national authorities more than others. Judge Pinto de Albuquerque ventured that by engaging in procedural rather than substantive review of the human rights compatibility of national laws, the Court risks creating ‘47 different ways of applying the Convention’, with the consequence that the 47 states of the Council of Europe could end up with highly variable standards of human rights protection. He argued that this puts at risk the basic aspiration to equality before the law, as well as promoting a retrogressive agenda, especially in the field of economic and social rights, regarding the protection of minorities, migrants and the dispossessed in general.
This debate aside, Judge Pinto de Albuquerque made a robust and formidable defence of the Court. Having explained why he considers the Court to be an absolutely essential element in the protection of human rights across Europe, he went on to set out a series of specific reforms – by way of ‘three steps’. He emphasised that his proposals should be viewed in the light of his robust case in support of the critical work which the Court continues to do. This blog concentrates on his specific reform proposals; readers are referred to the relevant Articles of the Convention and Rules of Court.
The three steps advocated by Judge Pinto de Albuquerque were built around the principles of independence, transparency and accountability. Applying these principles, the Judge posited a series of specific recommendations for reform, which are outlined below.
Independence
Judge Pinto de Albuquerque argued that the following steps should be taken in order to strengthen the independence of the Court:
the rotation of the presidency of the Sections of the Court, as in many Constitutional and Supreme Courts (the Court’s 47 judges being divided into five Sections);
the adoption of a ‘rule of silence’: that cases should only be discussed by the judges in the court room, and not externally (see Article 21(3) ECHR and Rules 4, 22(1) and 28(2) of the Rules of Court);
judges should be ineligible to apply for posts within the Registry (which provides legal and administrative support to the Court) for a period of five years after their mandate has ended; an equivalent rule should apply to Registry staff as regards applying for judicial posts at the European Court; and
judges should also be ineligible to apply for certain state positions for a period of five years after their mandate has ended; an equivalent rule should apply to the holders of those state positions as regards applying for judicial posts at the European Court.
Transparency
Judge Pinto de Albuquerque argued that these reforms should be introduced, so as to improve institutional and substantive transparency:
Institutional transparency
judge rapporteurs (who are assigned – anonymously – to preside over the processing of each case) should be publicly named, and their appointment should be based on objective, publically available criteria and procedure (see Rules 48-50 of the Rules of Court);
identify the judges who form the majority and minority in inadmissibility decisions (that is, decisions as to whether applicants meet the Court’s conditions of admissibility so that the merits of their case can proceed to be examined);
determine the composition of each Chamber (see Article 25(b) ECHR and Rules 25(3) and 26 of the Rules of Court) and each Grand Chamber (see Articles 26(4) & 26(5) ECHR and Rule 24(e) of the Rules of Court) in accordance with objective, publically available criteria and procedure.
Substantive transparency
provide sufficient (and non-formulaic) reasoning for single judge decisions on inadmissibility and for decisions of the Grand Chamber panels to reject a request for a case to be reheard by the Grand Chamber and publish these decisions with their reasoning (under Article 43(2) ECHR, cases are referred to the Grand Chamber when they raise a serious question affecting the interpretation or application of the Convention or a serious issue of general importance);
allow for separate opinions in inadmissibility decisions;
make public all the sources of information relied on by the Court, including that provided by the Jurisconsult (a member of the Registry who advises the Court so as to ensure the quality and consistency of its case law), international and comparative law reports of the Research Division and third party interventions (submissions made by states or organisations that are not party to a case in order to assist the Court in its adjudication) (see Article 36 ECHR and Rule 44 of the Rules of Court). The Court’s default position is that all documents submitted to the Court are public (see Rule 33 of the Rules of Court); however, that is quite different from making documents such as third party interventions available on the Court’s website.
Accountability
The accountability of the Court should be developed by making the following changes:
judges should have input into recruitment and career progression decisions within the Court Registry (including a right of veto) (see Article 25(e) ECHR);
the election of judges should involve an intensive public vetting process, without the involvement of the ‘home state’ (for the website of the Committee on the Election of Judges to the European Court of Human Rights, see here);
there should be full publicity about the ‘off-the-bench’ engagements of judges (including details about travel sponsored by the member states);
prior to the adoption of the Council of Europe’s budget each year, a detailed annual report should be presented by the Court to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, with information on past results and future, expected results;
a ‘situation room’ should be established within the Court to provide internal supervision of the development and follow up to inter-state and pilot judgments (a procedure developed by the Court to respond to structural or systemic violations of the Convention which give rise to multiple applications; see Rule 61 of the Rules of Court) and ‘quasi-pilot judgments’ (in which the Court stipulates individual and/or general measures to remedy structural or systemic violations without invoking the formal pilot judgment procedure). This body would enable the Court to assess the development of these cases and impact of such judgments.
the member states should be given more input into the adoption of the Rules of Court.
Comment
We are extremely grateful to Judge Pinto de Albuquerque for putting forward such an interesting series of very specific proposals for reform, which has provided much food for thought.
Some of the Judge’s proposals arise in essence from the internal workings of the Court (such as the need to avoid ‘voting blocs’) on which it is rather difficult to comment. Other suggestions, such as the need for a judicial ‘rule of silence’ seem eminently sensible, if they are required.
Long gone are the days when it was quite common for states to put forward former government agents (who represent the state before the Court) for election as judges; however, former state officials of one sort or another are still often put up for election, and we are also aware of the disquiet which has, on rare occasions, been caused by the movement (or the prospect of movement) of individuals from the Registry to the Bench, and vice versa – so a five year ‘restrictive covenant’ could indeed address any risk of perceived lack of independence.
Of the transparency proposals, the stand-out idea is to allow separate judicial opinions in decisions on inadmissibility. No doubt, this would be rarely invoked in practice, but it is suggested that for exceptional cases where critical, new or difficult points of admissibility are being decided, this would be a significant, positive reform which could enhance our understanding of the incremental development of the case-law relating to the admissibility criteria.
In some instances, the Strasbourg judicial election process continues to prove problematic, with lists of judges from certain states being repeatedly rejected – this was the subject of recent scrutiny by the Open Society Justice Initiative and the International Commission of Jurists. The primary problems remain the lack of independence and transparency of the state selection processes; so, Judge Pinto de Albuquerque’s advocacy of limiting the influence of the ‘home state’ is understandable.
Finally, we note the proposal to establish a separate unit within the Court enabling it to track the implementation of pilot judgments and quasi-pilot judgments which focus on structural and systemic human rights violations. This could be an important initiative in assisting the Court in its assessment of the follow up to such cases – especially, for example, in analysing the adequacy (or otherwise) of newly established domestic procedures of redress, created in response to an earlier Strasbourg decision (in this connection see, especially, the recent judgment in Burmych and Others v Ukraine). The potential creation of such a unit would be a logical extension of the Court’s increasing engagement with the implementation of its own judgments and interaction with the Department for the Execution of ECtHR Judgments under the Committee of Ministers, the inter-governmental arm of the Council of Europe, which is formally tasked with monitoring the implementation of judgments. Careful coordination would be required, however, to ensure that any unit established within the Court did not duplicate the work of the Execution Department.
Dr Alice Donald and Professor Philip Leach are currently carrying out research on the implementation of human rights judgments, as part of the ESRC-funded Human Rights Law Implementation Project.
Dr Lilian Miles, Senior Lecturer in Law, has been leading a project to advance the sexual and reproductive health rights of women migrant workers in Malaysia. Here, Lilian highlights the impact of this work and how it can be used to further improve the situation of migrant women working in the country.
The number of strike actions taken in the UK has been in decline for a number of years. Dr Ian Roper, Associate Professor in HRM, sheds some light on the reasons for this reduction in strikes, and examines whether it means we’re happier at work or are simply expressing our dissatisfaction in other ways.
In this post Roger Kline, Research Fellow at Middlesex University Business School, examines a new consultation document from the Nursing and Midwifery Council, which includes long-overdue changes to the NMC’s Fitness to Practice processes.
