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Equality and the REF 2021 consultation

Does the potential for the use of headcounts in determining REF2021 submissions run the risk of breaching equalities law? James Hand highlights the potential issues.
This article is more than 6 years old

James Hand is an Associate Senior Lecturer in the University of Portsmouth Law School. His research is focused on discrimination law and employment law.

Equality and diversity are clearly important issues for the Research Excellence Framework team – the existence and comparatively early announcement of the Equality and Diversity Advisory Panel (EDAP) is one testament to that – but the consultation over the summer raised the prospect of ‘designing in’ discrimination to the fundamentals of the process.

At the HEFCE webinar on 19th July, REF supremo David Sweeney mentioned that there had been lots of feedback on equality and diversity, that the REF team was aware of equality problems beyond the REF, and that it was something they were taking very seriously.  However, suggestions that have emerged, and the phraseology used in the consultation, point to a risk of embedding discrimination in the foundations of the new REF.

Who counts?

There has been some debate about using headcount, or FTE, or a combination of both, to determine the number of submissions an institution would make to a Unit of Assessment.  By its very nature, the use of headcount rather than FTE in setting a figure runs the risk of discrimination against fractional staff. While working less than full-time is not directly a protected characteristic under the Equality Act 2010, part-time workers are protected from detriments by their employer under separate legislation. Employers and, through the public sector equality duty, HEFCE will need to think carefully about the risk of indirect sex or disability discrimination – as women and people with disabilities (both protected characteristics) may be more likely to work part-time.

Under REF 2014, part-time working was one of a number of special circumstances that could be taken into account. The earlier consultation on REF 2021 held out ‘flexibility’ as the means to simplify the process and avoid the need to take account of special circumstances.  While part-time staff may be covered by taking account of FTE in calculating the number of required outputs for the UoA (were that to be used), a similar amount of time missed through, for example, parental leave would be accounted for through flexibility (i.e. somebody else potentially submitting more to make up for that person’s ‘missing’ time).  However, there is now talk of part-timers adding proportionally more to the institutional burden than their full-time colleagues which would be a clear retrograde step if it comes to pass. The REF team would, by using headcount, be sending out a message to institutions that a greater complement of full-time staff would reduce the number of outputs, effectively encouraging them to discriminate (and even if they do not, the staff may nonetheless feel – and, indeed, be – an extra ‘burden’ on their colleagues).

Special circumstances

There is a possibility that special circumstances may still play a part with regard to the apparently inevitable minimum of one publication per researcher, though Kim Hackett in the webinar referred only to the minimum and not the total number. And David Sweeney seemed to row back from that toward the end of the webinar – describing reductions as only being likely in ‘extreme circumstances’. Parental leave, disability and, indeed, part-time working are not extreme – and the restricted use of special circumstances is thus likely to miss out many groups when it could be the solution to the equality problem if it were to be used for the total outputs figure. While the minimum of one is not likely to constitute as great a detriment to those groups than their increasing the UoA target figure, the choice to mandate a minimum brings with it such theoretical discriminatory concerns.

An optimistic note

The issue of portability also has equality implications but here the soundings are more positive. It is arguable that non-portability is indirectly discriminatory against younger people, and to a lesser extent women, due to the numbers in these categories on fixed-term contracts. It is also arguable that there is a legitimate aim in trying to allocate the REF benefit to the institution that paid for the work and it could, subject to proportionality (and necessity), therefore be considered justifiable indirect discrimination. However, allowing both institutions to take the credit (perhaps limited to two papers or whatever the average turns out to be) is a simple and non-discriminatory way of solving this issue, although it would appear that the proposal is for this to be a transitional arrangement and so the problem may be set to reappear come REF 2026.

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