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Does Discrimination Exist in Nursing in the NHS?

Info: 5428 words (22 pages) Law Essay
Published: 7th Aug 2019

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Jurisdiction(s): UK Law


This chapter will introduce the definition of discrimination and the types of discrimination. The aim of this chapter in to review the main question, does discrimination still exists? Focusing on

Anti Discrimination legislations

Introduce the concept of Gender Inequality

Review discrimination that took place in 1990’s and 20th century in Nursing in NHS


What is discrimination? The term is generally defined as treating one less favourable than other. However Kenneth Boulding defines discrimination as “Phenomenon which is so pervasive in all human societies that there is no doubt it exists, however a unitary phenomenon but a complex of a no. of related forms of human behaviour and this makes it not only hard to define but frequently difficult to comprehend fully” (Chiplin and Sloane; 1982). Discrimination means treating someone “less favourable” than other (Grewal; 1990). Discrimination either happens direct or indirect.

Direct Discrimination

In terms of workplace direct discrimination transpires when an employer refuses a person the opportunity of employment because of his or her gender (Spicer and Spicer, 1995). Direct discrimination is “where person intends to discriminate” (Beloff 1976) Spicer is defining a definition in terms of workplace however both definitions of direct discrimination are similar in respect that they are being visible in discriminating other person. Direct Discrimination is evident where an employer discriminates female employee because of her gender, thus treating her less favourable than male employees. Direct discrimination is “fairly obvious due to its explicit nature” (Price, 2003).

Indirect discrimination

Indirect discrimination occurs when an employer create certain rules, procedures in his organisation that he can’t “visibly” discriminate. It is not apparent. Spicer and Spicer defines the term as “where an employer attaches a pre-condition to an opportunity which, at first sight appears to apply equally to either sex but which in fact imposes a barrier against one sex because a person of that sex is less likely to meet the precondition (Spicer and Spicer, 1995). “Indirect discrimination is when a working condition or rule disadvantages one group of people more than another (direct.gov). Such conditions can be in form of setting certain requirements that can be easily achieved by one group than other (Price, 2003). This type of discrimination arises in workplace when an employer sets condition in job application to be of fixed minimum height requirement for police force. Such is indirect discrimination as this condition can be easily met by men than compared to women. It is creating an invisible barrier for women in the workforce.

Anti- Discrimination Employment Legislations

Discrimination is unlawful in all cases. The equal opportunities laws such as the sex discrimination Act 1975, The Equal pay Act 1970, The Race Relations act 1976, and The Human Rights Act 1998 made discrimination unlawful against many grounds. The anti-discrimination laws intend to promote equal behaviour and eliminate any unfair practice in the employment. In terms of workplace, it is illegal to discriminate against the grounds of gender, marital status, age, disability, race, sexual orientation, colour, nationality, ethnic background, pregnancy and maternity leave, gender reassignment and if employee is on part-time or fixed contract.

Sex discrimination Act 1975

The quest for equality between Men and Women especially in case for women has been in many centuries. Since the increase of Women’s participation in labour market, they faced many inequalities thus highlighted discrimination against them. Equality for women (1974) drew large from US experience with Women dealing with discrimination. This act was not concerned about private relationships but rather social status of females in the society and the difficulties and disadvantages imposed on females. Thus this act was overlaid to prevent unfair treatments against gender (Spicer and Spicer, 1995; O’ Donovan and Szyszczak, 1998) Beloff states that this act applies to three kinds of discrimination. It is illegal to discriminate against men and women in the fields of employment, education and the provision of goods, facilities, services and premises. It is also discriminate against the ground of marital status in the fields of employment only (Beloff, 1976).

Modern term of this act provides equality for both men and women in term of access of employment, vocational training and employment, promotion and other terms and conditions of work. There is no qualifying period for this act as the protection of this act commences from first day of employment. The equality and human rights commission is the official body for this act to prevent any type of discrimination under this act and to support individual bringing claims. Other charities are also involved in this act to promote equality for both genders (CIPD, 2009)

Sexual Orientation legislation

This act was introduced in 2003 concerning many cases against sexual orientation. It implemented many sexual orientation aspects of EC General Framework directive (2000/78). This made it illegal to discriminate against sexual orientation. The term sexual orientation is defined as having sexual attraction of same sex (Gay/ lesbian), of opposite sex (heterosexual) and both sexes (biosexual) (CIPD, 2009).

Equal pay Act 1975

This act introduces the concept of equal pay for equal value. Equal pay act has been amended by Sex Discrimination Act 1975 and has been strengthened by equal pay (amended regulation by Sex discrimination Act 1975 – section 1 1983/1974).

This law assign women the right to be paid equally as compared to Men in terms of Work, work related as equivalent by analytical study and work of equal value. The right applies to all the employees and also to anyone with contract personally to carry out any work or labour. Therefore it is illegal for an employer to discriminate against employees by paying them differently who works same job; work of equal value (CIPD, 2010).

Gender Inequality

Bailyn (2006) defines Gender Equality as a “social order in which women and men share the same opportunities and the same constraints on full participation in both the economic and the domestic realm”. The term gender inequality refers to where both men and women share different opportunities where one is more favourable than other.


Nursing has been a profession through out the history and is known to be “female-dominated”. Stereotypes narrow our thinking and in the mind of society nursing is a feminized thus creating certain sociological and psychological barriers in society mind when accepting Male nurse in the profession. Such behaviour includes referencing all men as “sexual predators” that they cannot be left alone in supervision of female patient (BBC, 2006). Although there has been a huge increase of Male nurses in the profession, there is still hyper-visibility of Female in the profession, highlighting Men had not been fully accepted in the profession. Despite being female-dominated profession both Female and Male nurses are victims of discrimination in certain scenario in this profession as they will be discussed later on this chapter.

National Health Service also known as NHS is the government funded health care system in Britain and is known to be the largest employer in the Europe (nds.coi.gov, 2008). The company is based in four regions of Britain; England, Scotland, Northern Ireland and Wales. Although four regions of NHS are managed separately; they remain same in many aspects. NHS currently employs more than 1.7m people and of which 400,000 are nurses (NHS, 2009); demonstrating Nurses are the most important group of workers in NHS. In nursing hierarchy, nurses are categorized in different grades according to their pay, qualifications and nursing experience. Grade D- F nurses represents professionally qualified nurses which involves high level of patient care while Grades G – I are supervisor and Managerial positions involving low level of patient care (geniushealth.com, 2009). Further detail on requirements of each specific grade is shown in Table 1.



A – C

Are known as unregistered Nurses.


Newly qualified staff registered Nurses


experienced staff with usually one to two years experience in the specific specialty area they are working


Also known as senior staff nurses and are regularly in charge of shifts. F grades also usually have specific post graduate education and training in order to apply for this position


also Known as Sister or Charge Nurses with a major component of their job involving management skills as well as being clinical specialists in the areas they are managing


Modern Matrons and their primary focus is management with a clinical focus and is usually specialist nurse who have both vast clinical and managerial experience in their specific specialty.


Grade also known as Modern Matrons and their primary focus is management with a clinical focus and are usually specialist nurse who have both vast clinical and managerial experience in their specific specialty

Table :NHS Nursing grading structure. Source: geniushealth.com, 2009

Discrimination in 1990’s period

Figure Part-Time employment rates of women and men in employment market in 1996. (Source Eurostat, statistics in focus No.8, 1997There is a huge inequality gap in the market since the entrance on women in employment and continued to persists in 1990’s. According to Equal Opportunities Annual report for Men and Women 1997, women still continues to remain under-represented in terms of equal pay and unemployment. While those employed are more likely to be seen as working part-time or engaged in weekend, morning or evening work because of family commitments. Family commitments play an important in female career which leads them to having part-time job to manage both professional employments and personal commitment. Looking at figure, it evidently shows women have high part-time employment share than men in U.K. Although there has been increase of both genders in employment market, the growth in the employment rate has not been matched by growth in volume of working time (labour input) (Equal Opportunities for Men and Women Annual report, 1997)

The above graph highlights women are increasingly seen working part-time than compared to Men. The reasons revealed in the report women have high work pressure by combining both domestic and working hours (Equal Opportunities for Men and Women Annual report, 1997).

Gender Inequality

Nursing profession has been facing shortages in 1990’s period while NHS is the largest employer in Britain; it accounts 90% of qualified female nurses as demonstrated by (NHS Women’s unit; 1995, Seccombe and Ball; 1992, Seccombe and Smith; 1997, Seccombe et al; 1993, Wyatt and Langridge; 1996). Being a female dominated profession however there is a high gender imbalance of Male nurses in high grades (G –I).While grade G is higher grade but grade H and I represents managerial and senior positions. There is a high gender inequality of Men being in senior as Male nurses’ only accounts less than 10% of nursing are highly represented in top hierarchy of NHS (Seccombe and Ball, 1992). Female nurses occupy 27% of low qualified grade in comparison to male nurses 14.7% (Wyatt and Langridge, 1996). At higher grades, Male nurses occupy 32% while female nurses occupy 17% (Beardshaw and Robinson, 1990). In addition to this 37 % of male nurses occupy chief nurse posts and in some regions it is as high as 50% (Parkyn 1991). The authors above are presenting evidence of female being treated lower than Men in female-dominated profession. There is high gender imbalance of male in senior positions.

According to PSI survey conducted in England and Wales NHS it confirmed that Men are more likely to be found in higher grades than female nurses and were likely to be “twice as likely” as women to be senior grades H and I. (PSI, 1998). The BBC further approve of this source by stating Male nurses take over female nurses in career ladder.

Career Progression

Furthermore there is not only gender inequality in higher grades but Gender imbalance on time it takes to reach higher grade. Research by Davies and Rosser (1986) observed that the average length of time to reach a nurse officer post for men was 8.4 years compared to 17.9 years for females. Although recent research shows that career gap has been narrowed, there’s still considerable difference for both gender to reach first nurse officer post. The figure revealed that it took 6.9 years for Men while for Women it is 11.4 years Davies and Rosser (1986). This big career gap between genders was not explained in terms of qualification and years of nursing experience but however assumption by managers that Women are not suitable for managerial role. Managers assume that Women do not hold necessary managerial skills and abilities to fill high level of posts (Lane and Percy 2003). Managerial/ senior post required high level of commitment and long hours of working which many women cannot hold due to their family commitment. Davies and Rosser states that nurse were required to fit a highly inflexible career path if they were to progress (Davies and Rosser, 1986). This is namely full-time career with no career breaks. However Women are to take career break at certain point of their life for maternity leave and other family commitments such as looking after dependant children. It further looks that such requirements are for “Male work-life pattern” as while in theory it is acceptable for both gender to work but in reality the high profile jobs requirements are arranged in a way that only male can achieve it with full time commitments and no career breaks (Halford et al., 1997). Such arrangement of working pattern is called Institutional discrimination. Lane (2000) expresses that it is the institution which binds the employer who can only make decisions within the confines of such institutional arrangements as the low status of part-time work (Lane, 2000). Wyatt and Langridge further proves the evidence of Intuitional arrangement within NHS where the culture in NHS is characterized by extreme workload, long working hours and high level of geographical mobility. All these factors contribute to “surrogate male career” which women cannot adopt due to family commitment. This leads to female nurses to choose flexible career which requires family friendly hour’s namely part-time job which has few promotional opportunities (Rubery and Fagan, 1993; court, 1995; lane, 1999; labour market trend, 2000).

Men fail to acknowledge such prejudices regarding inability of women are just ‘assumptions’ and criticise them as “migrant certificate gathers” who fails to advance nursing hierarchy as fast as men (Hardy, 1986). Clearly Men do not perceive struggles faced by women regardless their employment status. This leads to a question raised by Nuttall, “Are men more suitable for leadership while women are suited to being led and to being ‘worker bees?’” (Nutall, 1983).

PSI survey acknowledges this by stating that amongst its finding it revealed that men move up the hierarchy more quickly than compared to women despite having fewer qualifications. Women tend to have better nursing qualifications then men are as just as committed as men but still have to go through long process to move up the hierarchy. Evidently this confirms visibility of direct discrimination in the NHS (PSI, 1998; BBC 1998).

Employment status

Figure : Relationship between Clinical grades and employment status.The research by Davies and Rosser 1986 observed that Women are not only disadvantaged in terms of career-jump, gender imbalance but employment status of female nurses also has negative effect in career progression. The study revealed that while it took 17.9 years for female nurses to reach first nurse officer post but for part-time status (women with children) the figure is 23 years. The study by Mackay (1989) evidenced that part-time nurses does not enjoy same benefits as full time nurses and were regarded as “second class” workers (Mackay, 1989). They were not given first priority in terms of offering training, courses and promotion and thus most part-timers are seen in lower grades.

Figure 2 reveals the findings of Lane study confirming that employment status indeed in NHS is more favourable towards full-time employees. The chart highlight that most of the part-time nurses are located in lower grades D – F while 7% of nurses are seen in higher grades are seen in higher nursing grade G however they are not seen managerial and senior positions of nursing grades H – I ( Lane, 2003; Lane ,1999;Lane 2000).

Lane further observed that women are disadvantaged in the NHS irrespective of their employment status. She expressed that while “Family commitment” is the top priority for both employment status types (Full-timers and Part-timers) they still experience difficulties which affect their career progression (Lane, 1999; Lane, 2000; Lane and Piercy 2003). While part-time nurses are located in lower grades, they discover they are unable to access training and courses organised by the NHS. The timings of theses are structured in a way that clash with their working hours and domestic hours. The nurses are unable to attend these courses which provide them further training and knowledge regarding their job which may lead to promotion but however they were denied these opportunities. While full-timers are allowed to take to attend training courses within working hours but this does not apply for part-timers and were instructed to attend this with in their non-working hours. Part-time nurses expressed their dissatisfaction regarding this and claimed their non-working hours are spent in child care. (Lane, 1999; Lane, 2000; Lane and Piercy 2003)

Moreover part-timers also experience “downward occupational mobility” (Lane, 1999). This term refers to the process by which nurses who wishes to return to work after maternity leave learn that they are to work grade lower than they were employed before the maternity leave (Seccombe and Patch, 1995) . However if nurses wishes to return as full-time employee after maternity leave they face problems related to the lack of childcare provision, effect of inflexible working hours on combining domestic and working hours (Lane,1999; Lane and Piercy, 2003)

The study by lane presented another classification of employment disadvantage for women. Table 2 shows significant relationship between women with child status and current grade. The table shows that small proportion of women with dependant children had reached higher grade. Those with dependant children 37% are located in lower grades but only 22% are seen in higher grade. This clearly provides evidence that NHS trust lack suitable flexible hours that can meet the needs of both types of women with children and women with no dependant child. It clearly provides the evidence of indirect discrimination that hospital created such shifts that can only accommodates the needs of women without children so they can commit fully with the organisation.

Dependent child status

Grades D – F %

Grades G – I %

No dependent children



With dependent children



Table :

Direct Discrimination took place in Wiltshire Healthcare NHS trust where two nurses were forced to quit the work because they were mothers. The two nurses claimed that they were forced to quit the work before the new shifts were introduced in the hospital. Christin Clunie and Alison Hale accepted the redundancy as they expressed they would be unable to work in new shifts as it was unmanageable. The new shifts would not leave them any time to manage their child care duties and other personal commitments. However although they were victim of sexual discrimination, their claim has been dismissed by the tribunal. The Employment tribunal did take on fact that new shifts were unmanageable for all nurses and it should introduce new employment policies that are family-friendly to them. The tribunal stated to the NHS trust if they failed to employ new family friendly policy they could be faced “flood of discrimination claims” (BBC, 1999).

Institutional discrimination

“Institutional discrimination is concerned with discrimination that has been incorporated into the structures, processes and procedures of organisations, either because of prejudice or because of failure to take into account the particular needs of different social identities” , (faculty.londondeanery, 2008). Nursing is a historically introduced as feminine career and yet it shows that women goes through more troubles than men in the career despite their employment status. Women are seen in lower grades because employers prejudice of their inability to perform high level job commitments. If female nurses are working full-time, they have difficulty in terms of dividing their time for work and family commitments.

Goss and Brown (1991) argued number of barriers to women’s progress including the limited availability of part-time and flexible working at senior level and the limited availability of child minding services. Further factors were identified, stating the senior job role has male culture that required long working hour’s adding as barrier to women progression. Goss and Brown (1991) recommended strategy that will raise profile of equal opportunities within the NHS and apply them into management practice and monitoring (Goss and Brown 1991).

In the same year, (1991) Equal Opportunities acknowledged the need of ‘Equal Opportunities’ with in the NHS produced a report on the base of survey of NHS in England, Wales and health board in Scotland. The report verified although equal opportunities policies were common but however was not practised in reality within the NHS. The report called for National Equality programme which will set Equality targets and the establishment of NHS equal opportunities unit (Equal Opportunities unit, 1991).

Managers altitudes

The study by Lane (2003) also revealed that managers have poor altitudes towards part-time nurses especially toward family commitment. She observed that managers have two mind-sets (Commitment mindset and ability mindset) in the organisation and both have denied the existence of gender inequality within the NHS.

The commitment mindset has strong emphasis on “Choice”. Managers believe that those employees who were fully committed to the organisation need not to work in part-time grades hence the lower grades. The choice is upon the employees whether to work as full-time or part-time. They believed that full-time employees are more committed, career-orientated and are able to take high work-load and therefore more full-timers are seen in higher grades than part-timers (lane, 2003). However Hakim (1996) argues while full time nurses may be fully committed similar experience does not apply for part-time nurses as many nurses regard their work as ‘no more than social club’. Part-time work is the only opportunity for female staff to work and socialize because of its convenient and flexible hours and option of friendly atmosphere. His survey provides the evidence part-time employees do not see themselves as ‘having a career’ (Hakim, 1996). The job is of their own choice and preference (Hakim, 1991)

Managers with “ability” mindset present disadvantages to all women in nursing irrespective to their employment status. The fact that there is high gender disparity of Male nurses in higher grades because managers believe that women did not proper skills and abilities to carry managerial work. Managerial works have of culture of “macho”. They believed that each gender have a predefined role in the society, Men as managers are born not made while women are housewife therefore more suitable for carrying domestic work (Lane 2003). Bevan and Thompson (1992) argue that males tended to favour and aspire towards qualities that have an element of competitiveness, energetic, intelligence, individualistic. All qualities that is preferred for managerial / senior positions in nursing. While female prefer work of more co-operative and consensual nature that requires thoughtfulness, flexibility and honesty. They concluded that female are measured against ‘male cultural model’ (Bevan and Thompson, 1992) hence the born of inequalities in workplace.

Wilson (2005) further argues that while women do not perceive themselves as different as men however men are more perceptive towards them and view them having different and unfair qualities (Wilson, 2005).

Evidently it is clear that the main barriers in women’s employment practice are inadequate child profession, inflexible working practises, insufficient training provision for certain groups and negative management altitudes (EOD, 1991; Disken et al 1995). It is argued that the existence of these barriers would not only restrict the type of employment in which women could engage in first instance but more covertly and persuasively they would also negatively effect women’s acquisition of skills which would enable them to progress up career hierarchy..” ; It furthers evidences that employers prejudice affects women’s career development. Centre to the popular belief is “Victorian model of family” where women are seen as housewife while Men are breadwinners (Price, 2003).

Measurements taken to promote Equality

Opportunity 2000

The inequalities faced by Women have been noticed by the government which called for action. The government and large Businesses introduced a new voluntary campaign aimed at increasing quantity and quality of women’s work in NHS England by the year 2000. The campaign was introduced as Opportunity 2000 and consisted of eight goals to be completed by the end of 1994 as landmark towards 2000. This was designed to end inequalities faced by women in NHS regarding inflexible working hours, Gender Imbalance of Men in senior positions and limited availability of childcare facilities’ (Corby, 1997).

From the eight goals, three goals focused around nursing and midwifery as it is the largest (90%) occupational group in NHS. The goals related to nursing were as follows:

“Introduce a programme allowing women aspiring management positions to go through a development centre with a view to establishing their own personal development needs.

Introduce initiatives on recruitment and retention to ensure that the number of qualified nurses and midwives leaving the profession does not rise.

Ensure that following maternity leave or a career break all women, including those returning to nursing part-time or as a job share are able to return at a grade commensurate with their leaving grade and to work of a similar status”

(Corby, 1997)

Although the need for equality between Men and Women has been expressed however the goals failed to meet the deadline. Number of factors associated the failure of Opportunity 2000;

Managers gave low priority to the programme. This example was seen where newly appointed H.R director of NHS Ken Jarrod failed to mention Opportunity 2000 in his interview to personnel Management in 1994 (McLachlan, 1994).

The trust did not produce an action plan which enlists how the goals can be achieved by setting sub-targets to achieve over all goals. This demonstrates poor organisation and planning of the campaign.

Opportunity 2000 was not communicated effectively through out the NHS in England. Many units of NHS confirmed that they were not aware of this programme as this was not advertised very publicly (Corby, 1997).

The employment tribunal

The employment tribunal has been more active in late 1990’s and in 20th century. The role of Employment tribunal is designed to deal with claims against employers that are presented forwards by the employees relating to their employment or its termination. It deals with claims such as; “unfair dismissal claims, Discrimination claims (sex, religion, race, disability, sexual orientation, age or belief), Equal pay Claims, Claims relating to deductions from wages” (CIPD, 2010). The role of employment tribunal helped the victims to win their discriminated claims against their employers and enforce new rules that promote equality and diversity in the employment. The successful example of such cases will be discussed next.

Maternity and Paternity rights

The constant complains of inflexible working and more stress on women has led to development of paternity rights. The law enables both Men and Women taken to Paternity and Maternity leave to manage flexible working and work-life balance. The maternity and paternity has widely been incorporated in Employments Rights Act 1996, Employment Relation Act 1999, the employment Act 2002 and work and families Act 2006. Maternity rights entitle women to maternity leave, maternity pay and other rights if they fulfil relevant criteria and vice versa for Paternity Rights only if they fulfil certain criteria (CIPD, .

Discrimination in 20th Century (2000 – 2009)

According to the BBC, Grade D nurses can see a pay rise nearly 49%. This moved was considered as an employment tribunal considered many claims against women in regard to unequal pay than those of male builders working in NHS. It also compared the work against as craftsmen, joiners and maintenance assistant employed by NHS in the same region as their work was considered equal value as nurses. The employment tribunal confirmed that women has been discriminated against for years thus called for equality in terms of pay for both Male and female in NHS (BBC,2002)

Although Grade D nurses sees a rise in their pay, the female dominated occupation ‘Nursing’ is discriminated against other professions which call for equal work such as police and social workers. According to Nursing standard, nurses earns less than police, teachers and social workers highlighting earnings of male dominated professions is higher than female dominated although both produce work of equal value depending on their position in Career hierarchy (Nursing Standard, 2007).

A nurse was fairly dismissed from the company (Jack and Jill Nursery) because she was pregnant. The women expressed that she was not awarded any maternity pay and was dismissed within a week notice. Under the sec discrimination Act, it is illegal to treat pregnant women different than ordinary people. The role of employment tribunal helped the victim to win the case and compensation of £7500 (BBC, 2004).

Another discrimination case has been won against a former male student nurse. Andrew Moyhing claimed that he was being treated unfairly in the NHS than compared to its female co-workers. He complained that he was being chaperoned unnecessarily when examining a female patient where as this rule didn’t follow the female nurses. Female nurses were un-supervised when examining both male and female nurses. However the employment tribunal ruled that NHS has breached sex discrimination Act won a limited victory of £750 compensation. Interestingly the employer NHS denied the unfair treatment stating “Mr. Moyhing had displayed an exaggerated and unduly sensitive reaction to being chaperoned” (BBC, 2006). This case clearly shows that stereotypes still exist in 20th Century where equal opportunities are common. The gender differences are still perceived as same as it was in early years where Men are seen as sexual predators.

In 2004 nursing practitioner Sharon Hartley and overall more t

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