The Equality Act

 has changed the sex race and disability discrimination duties under the old Sex and Race discrimination legislation.

The Equality Act Part 11, s149-159, deals with the duties placed on public sector bodies and positive action duties (s158).

The public sector equality duty s149 replaces the duties that public bodies had under the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Act, and it brings in some key changes. It has been in force since April 2011.

The new section says that the public authority must in the exercise of its functions, have due regard to the need to do three things:

  • Eliminate discrimination, harassment or victimisation
  • Advance equality of opportunity between people who share a relevant protected characteristic, and those who do not – this duty is elaborated upon in the following way: having due regard to removing disadvantages suffered by people with the characteristics, meeting their needs where those are different from other people’s, and encouraging such people to participate in public life or other activates where representation is low.
  • Foster good relations between these groups by in particular tackling prejudice and promoting understanding.

 

Discrimination and protected characteristics…

It has also expanded the scope of the Public Sector Equality Duty from Disability, Race and Sex to cover the following categories: Disability, Race, Sex, Religion, Sexual Orientation, Marriage and Civil Partnership, Pregnancy and Maternity, Age and Gender Reassignment (or Transgender).

Discrimination here refers to treatment of a person within a category which is less favourable than the treatment of others in another category or the rest of the population in general.

The Equality Act could be said to strengthen existing law – as follows:

Section 1 places a new duty on certain public bodies (e.g. LAs) to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions;(eg the FACS threshold, de-commissioning, grant funding voluntary bodies etc). (not yet in force, as far as I know).

The duty to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage will apply to the listed public bodies, which have strategic functions – these include Government departments, local authorities and NHS bodies. In addition, the duty will apply to other public bodies which work in partnership with a local authority to draw up the sustainable community strategy for an area, when they are drawing up that strategy. These partner public bodies are specified in the Local Government and Public Involvement in Health Act 2007.

 

The underlying aim or objective of the PSED

The objective behind the duty is to ensure that consideration of equality issues forms part of the routine, day-to-day decision making and operational delivery of public authorities, and the purpose of the specific duties is to ensure better performance of the duty.

The specific duties will therefore be imposed on almost all of the public authorities subject to the duty. The only exceptions are a few very small organisations for which the imposition of the specific duties would not be proportionate or sensible.

How to comply – the essential mindsets

The following principles, drawn from case law, explain what is essential in order for the Equality Duty to be fulfilled. Public bodies should ensure:

  • Knowledge – those who exercise the public body’s functions need to be aware of the requirements of the Equality Duty. Compliance with the Equality Duty involves a conscious approach and state of mind.
  • Timeliness – the Equality Duty must be complied with before and at the time that a particular policy is under consideration or decision is taken – that is, in the development of policy options, and in making a final decision. A public body cannot satisfy the Equality Duty by justifying a decision after it has been taken.
  • Real consideration – consideration of the three aims of the Equality Duty must form an integral part of the decision-making process. The Equality Duty is not a matter of box-ticking; it must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision.
  • Sufficient information –the decision maker must consider what information he or she has and what further information may be needed in order to give proper consideration to the Equality Duty.
  • No delegation –public bodies are responsible for ensuring that any third parties which exercise functions on their behalf are capable of complying with the Equality Duty, are required to comply with it, and that they do so in practice. It is a duty that cannot be delegated.
  • Review –public bodies must have regard to the aims of the Equality Duty not only when a policy is developed and decided upon, but also when it is implemented and reviewed. The Equality Duty is a continuing duty.

Who has to have due regard? Decision makers, helped by:

  • Board/Cabinet members – in how they set strategic direction, review performance and  ensure good governance of the organisation.
  • Senior managers – in how they oversee the design, delivery, quality and effectiveness of the organisation’s functions.
  • Equality and diversity staff – in how they raise awareness and build capacity about the Equality Duty within the organisation and how they support staff to deliver on their responsibilities.
  • Human resources staff – in how they build equality considerations in employment policies and procedures.
  • Policy makers – in how they build equality considerations in all stages of the policy making process including review and evaluation.
  • Communications staff – in how they ensure equality information is available and accessible.
  • Analysts – in how they support the organisation to understand the effect of its policies  and practices on equality.
  • Front line staff – in how they use equality considerations in the delivery of services to the public.
  • Procurement and commissioning staff – in how they build equality considerations in the organisation’s relationships with suppliers.

 

The Regulations and Specific Duties which go with it…..

The government is empowered under the Act to impose specific duties on public authorities by regulations.

The purpose of the duties is to ensure better performance by the public authorities listed in the Regulations of their duty to have due regard to the matters set out in paragraphs (a) to (c) of section 149(1).

They achieve this, by requiring authorities to prepare and publish objectives, setting out what they intend to achieve in order to further the aims of the duty, and to publish information demonstrating their compliance with the duty.

 

What’s the bottom line, under the new regulations?

The revised regulations introduced much greater flexibility to the earlier proposals. In particular, the earlier proposals included a number of prescriptive publication requirements, which were deemed by Ministers to be unduly onerous. Public bodies would have been required to publish all the details of their engagement with interested parties in determining their policies and their equality objectives; the equality analysis they had done in determining their policies; and the information they had considered when undertaking that analysis.

The revised regulations simply require public bodies to publish their equality objectives, and information to demonstrate their compliance with the duty. This information is likely to encompass some of the information set out above, but the revised regulations give public bodies much greater freedom and flexibility in meeting this requirement. This is in line with the Government’s broader approach to the public sector – to reduce bureaucracy and increase transparency.

Over a ten year period the net benefit from consolidating the equalities duties is expected to be in the region of around £110m to £205m (net present value terms) compared to the cost of the current duties.

Specific regulations applying to councils

  • Regulation 2 requires a public authority listed in the Schedules to publish information to demonstrate its compliance with the duty. A public authority listed in Schedule 1 must do this not later than 31 January 2012 and at least annually thereafter.
  • Regulation 2(4) requires public authorities listed in the Schedule to publish information relating to persons who share a relevant protected characteristic who are affected by their policies and practices.
  • Regulation 3 requires each public authority listed in the Schedules to prepare and publish one or more specific and measurable equality objectives, that it thinks it should achieve to further the aims set out in the duty. They are required to publish these objectives no later than 6 April 2012 and at least every 4 years thereafter.

Equality impact assessments

Before the Equality Act 2010, public bodies had a responsibility under the law to comply with the Disability, Race and Gender Equality duties in making policies or carrying out functions, by carrying out what is known as an equality impact assessment (EIA).

An EIA simply meant assessing how the policies and decisions of a public body are likely to affect or have affected people in a protected category, e.g. older or disabled people; looking for ways to promote equality; and removing any negative aspects that may be discriminatory. It is done by gathering information on the impact of the policy or function, consultation with relevant individuals or organisations and analysis of its effect. An EIA has to be far-reaching and comprehensive, analysing the potential of the policy to give rise to discrimination.

Under the Equality Act 2010, public bodies no longer have a legal duty to carry out an EIA, but most have continued to do so and this is likely to continue to be seen as good practice in compliance with the Public Sector Equality Duty.

Also, although public bodies no longer a legal duty to carry out an EIA, an individual or organisation that believes a Government body has not carried out an EIA before making a policy or decision, may still apply for judicial review of the policy or decision if it is likely to result in discrimination.

 

To do an EIA or not to do an EIA, that is the question…….

“8.15 The specific duties will require a public authority to publish information to demonstrate its compliance with the duty. This is likely to include details of the analysis it undertook and the information on which it was based. It is also likely to include details of any engagement or consultation that it undertook in complying with the duty.

The Government did not wish to impose a burden on public authorities to publish details of every single meeting that it has with its staff and members of the public, and every single document that it considers during the exercise of a function. Public authorities should be able to decide what information would be proportionate to disclose for this purpose and the public should be free to challenge authorities if they require more or for it to presented differently. They simply signal flexibility to public bodies, in how they demonstrate their compliance with the regulations. The Government believes this is the right approach.

Views on the effect of the revisions on EIAs

  • “…8.12 There was much less agreement as to whether the revised regulations would achieve greater transparency and accountability. In particular, a number of voluntary and community organisations were concerned that removing the requirement to publish details of equality analysis, information, and engagement would mean that such analysis and engagement would simply not happen.
  • 8.13 The Government has noted this view, but does not share it, and strongly believes that the case law from the previous equality duties supports this position.
  • 8.14 The duty requires public authorities to have due regard to the matters set out in section 149(1) of the Act and it is implicit that when exercising their functions they will need to consider any impact on people with relevant protected characteristics. Case law  on the previous equality duties established that active consideration of the likely effects of different policies and programmes on people with relevant protected characteristics is inherent in having ‘due regard’ to the matters set out in section 149(1); and that in some cases this may require some evidence gathering, and engagement or consultation with people affected by its decisions.”

 

Myths and truths:

The Equality Duty does not impose a legal requirement to conduct an Equality Impact Assessment – nor is there is any practical need to conduct one. Compliance with the Equality Duty involves consciously thinking about the three aims of the Equality Duty as part of the process of decision-making. That will entail understanding the potential effects of the organisation’s activities on different people, but there is no prescribed process for doing this. Keeping a simple record of how decisions were reached will help public bodies show how they considered the Equality Duty. Producing an Equality Impact Assessment after a decision has been reached will not achieve compliance with the Equality Duty.

The Equality Duty does not mean that public bodies have to examine equality issues where they are not relevant to the matter in hand. Where it is clear from initial consideration that a policy will not have any effect on equality for any of the protected characteristics, no further analysis or action is necessary. For example, if a public body is conducting a review in relation to an issue which has no implications for equality – such as an evaluation of the effect of coastal pollution on marine life – undertaking a formal consultation or analysis addressing equality issues where it is evident that the Equality Duty is not relevant would be pointless and is not required.

The Equality Duty does not require public bodies to take disproportionate action on equality. Public bodies should take a proportionate approach when complying with the Equality Duty – in practice, this means giving greater consideration to the Equality Duty where a function or policy has the potential to have a substantial effect on discrimination or equality of opportunity for the public or the public body’s employees, and less consideration where the potential effect on equality is slight.

The Equality Duty does not require public bodies to treat everyone the same. Rather, it requires public bodies to think about people’s different needs and how these can be met. So the Equality Duty does not prevent public bodies providing women-only services – for example, for female victims of sexual violence or domestic violence. Indeed, such services may be necessary in order to ensure women have access to the services they need.

The Equality Duty does not require public bodies to treat all religions as being equal or to treat all religious festivals equally. For example, a public body displaying a Christmas tree every year in its reception area would not be a breach of the Equality Duty.

The Equality Duty does not require public bodies to make services homogeneous or to try to remove or ignore differences between people. So, for example, it does not mean that a public body must stop providing age-appropriate services for people of different ages, or that it can no longer commission some services to be provided by different faith organisations. Faith organisations are sometimes well-placed to deliver services which meet the particular needs of their  community.

Enforcing compliance with the Equality Duty

There is no explicit requirement to refer to the Equality Duty in recording the process of consideration but it is good practice to do so. Keeping a record of how decisions were reached will help public bodies demonstrate that they considered the aims of the Equality Duty.

The Equality Act makes very clear that any proceedings for enforcement of the Public Sector Equality Duty must be in public law. This means it has to be done through judicial review, in the High Court.

An individual cannot bring an action against a public body for breach of an individual contract, e.g. you cannot use the Public Sector Equality Duty to sue your council for failing to pay you for gardening services rendered. For this you would have to go to the normal courts.

The EHRC can institute judicial review proceedings where it believes that there has been a breach of the provisions of the Equality Act in general by a public body. It also has a specific power to make an application for judicial review where a public body has breached the general and/or specific duties of the Public Sector Equality Duty.

The EHRC also has a power to intervene in judicial review claims filed by individuals and organisations to help in clarifying the law. In this context its role is neutral (i.e. it does not support one side or the other).

What the EHRC can do

As the body with legal responsibility to enforce compliance with the duty, the EHRC will assess the complaint and, if is seen to be substantial, it will take up the complaint under its own procedure in the following ways.

Compliance notices: It will assess the public body’s compliance with both the general and specific duties and issue what is known as a compliance notice, where there has been a breach of either or both of the general and specific duties. In addition, where it suspects the duty has been breached it may enter into an agreement with the body requiring it to take certain steps to comply with the duty, for which it would agree not to issue a compliance notice.

Judicial review: A person whose rights have been affected by a breach of duty is able to make an application for judicial review to the High Court. Judicial review is the application an individual or organization can make to the Court, challenging an action by a public body, where it is believed the action has been lawful.

How the duty applies to older people

Equality protection was extended to include age and in particular the duty of public bodies to consider persons in the age category. Older people thus now have the full  protection previously accorded to other categories.

It is important to make it clear that the Public Sector Equality Duty as it relates to older people is in addition to rights that they have under the other parts of the Equality Act, such as equality in employment, goods and services, etc.

What this means, is that people can:

–     require public bodies to have due consideration to age equality in making policies and decisions – like quality of life and aspirations and spending patterns, for instance – why is ‘24 hour care’ an adequately expressed care plan, for an older person, when it wouldn’t be, for a younger one?

 

–     challenge a decision or policy of a public body, where it has failed to consider the impact of the decision on older persons (either by not carrying out an equality impact assessment or not considering the results of the equality impact assessment, where it has carried out one).

In summary, the new Public Sector Equality Duty has given older persons (the age category) the right to have their interest considered by a public body when decisions are being made, using all the facilities available under the Equality Act and its supporting regulations, as well as other existing judicial and legal means.

Please note that the Public Sector Equality Duty – after all this – is now the subject of an early review, by the Coalition government, before the reporting duties have even been and gone. Perhaps the recent spate of judicial reviews must have had something to do with that!

  • “…the duty has also come with some degree of administrative and regulatory burden; publishing information and objectives takes up management time.”
  • This has clearly influenced the Government’s decision to review the PSED to see whether “it is operating as intended”.
  • To date however, the Government has not provided any further details on the remit of its review. Public authority employers will therefore have to await further announcement before they consider what effect the review might have on their business practices.

 

 

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