Equality and Human Rights Commission

The EHRC is a statutory non-departmental public body that aims to be:

an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.

We use our unique powers to challenge discrimination, promote equality of opportunity and protect human rights.

They publish several different types of advice, including authoritative Codes of Practice in line with their statutory powers.

In terms of guidance on equality monitoring, they touch on some aspects of equality monitoring in their publication: Good equality practice for employers: equality policies, equality training and monitoring Equality Act 2010 Guidance for employers Vol. 7 of 7.

However, it is far from complete and leaves many questions unanswered.

In November 2019, I asked the EHRC several questions about equality monitoring and data protection in the hope they would clarify the legal position and highlight best practice.

I said:

I am looking for guidance on the collection of equality monitoring information, particularly in the recruitment process.

I have read your guidance, Good equality practice for employers: equality policies, equality training and monitoring Equality Act 2010 Guidance for employers Vol. 7 of 7 (Updated April 2014). I understand the need to assess whether recruitment is reaching a broad range of applicants from across society with different protected characteristics, whether an organisation is recruiting employees who are disadvantaged or under-represented and that such data collected might be useful, for example, in a relevant employment tribunal.

Although your guidance mentions equality monitoring during recruitment, I have some questions that it does not answer.

The basis for equality monitoring aligns with the protected characteristics under the Equality Act 2010 (“the Act”). As such, can you clarify:

1. Should equality monitoring be asking about all protected characteristics? Is it good practice to do so?

2. Under what circumstances would it be appropriate to ask about just some protected characteristics but not others and what justification would you consider appropriate?

3. How important is it to use the language and terms taken from the Act? I have seen many examples that use different terms that I think can only confuse those completing the forms and must contaminate and degrade the data.

4. Is it acceptable that employers add additional characteristics (ie those that are not protected characteristics), perhaps because they don’t wish to discriminate on those additional characteristics?

5. If these additional characteristics are surveyed, should they be kept separate from questions about the protected characteristics?

I believe the collection of data on protected characteristics or additional personal data raises issues around compliance with the General Data Protection Regulation.

I understand from the Information Commissioner’s Office (ICO) that the monitoring data collected perhaps by being received on an employer’s mail/web server, or in the same postal envelope, as the job application form would be considered personal identifiable information until the equality monitoring form becomes truly anonymous. This anonymisation will hopefully be performed immediately on receipt (as is good practice)but an employer will need to ensure that they have removed sufficient elements so that the individual can no longer be directly or indirectly identified. If a person could use any reasonably available means on to re-identify the individual, it would not be truly anonymised and the employer would be processing personal information. I suspect many do not fully comply with this because of a lack of awareness or understanding. However, it remains the case that the employer could very well be processing the personal data contained in the monitoring form.

One technique I have seen is an employer providing a link to an independent survey website (eg SurveyMonkey) that ensures that the equality monitoring information cannot be connected to any specific job application (other than, perhaps, date/time of submission). This seems a sensible idea and, because it will be seen to be anonymous and voluntary, is likely to collect better information as your guidance states.

This raises several other questions:

6. Unless truly anonymised before any processing by the employer, is it permissible for an employer to gather this personal information for monitoring purposes?

7. Does that also apply to personal information that is in addition to information on the protected characteristics or that uses terms different to those used in the Act?

8. What would be the legal basis under the GDPR for processing such personal data? This may not be a question you can answer yourselves but can I suggest you discuss this with the ICO to agree on a common position and best practice?

I suspect I’m not the only one with questions like these that arise from trying to understand the law and form a view on best practice. Equality monitoring in recruitment is the first step for an employer to understand diversity as it affects their employees and prospective employees.

In considering my questions, will you also consider providing some guidance to employers and the public to help them ensure and understand best practice, for both public authorities and others?

Their response — in February 2020, after much prompting — was that they couldn’t answer my questions but said they were in the early stages of updating their guidance on PSED and Data Protection (in conjunction with the Information Commissioner’s Office). They have recently told me they are “finalising the guidance we have been developing with the ICO.” They didn’t specifically say that this would include monitoring.

So, it remains to be seen whether this guidance answers the questions I raised and I will update the website as and when their advice is forthcoming.

07 December 2020: The EHRC has told me: “We are hoping to get the updated guidance published by the end of December.”
This website is not intended as a substitute for their advice nor replace appropriate professional advice. It merely gives information about what the Equality Act says and gives examples of clear and understandable suggestions of what could be used in equality monitoring.