The Public Sector Equality Duty England (and non-devolved bodies in Scotland and Wales)
This presentation is based on the final specific duties regulations which came into force on 10 September 2011.
Issues to be covered Protected characteristics Benefits of the equality duty General equality duty The specific duties Commissioning and procurement Monitoring and enforcement Messages for public authorities
Protected characteristics (or protected groups) Age Disability Pregnancy and maternity Religion or belief Race Sex Sexual orientation Gender reassignment Marriage and civil partnerships (but just for the first aim of the duty)
Benefits of the equality duty Help public authorities avoid discriminatory practices and integrate equality into their core business. Ensure services are more appropriate to users which are more efficient and cost-effective, improving public satisfaction. Build a supportive working environment to increase productivity. More representative organisations can draw on a broader range of talent. Using up to date equality information can lead to better decision-making and policy development.
In the exercise of their functions, public authorities must have due regard to the need to:
Eliminate unlawful discrimination, harassment and victimisation and any other conduct that is unlawful under the Equality Act.
Advance equality of opportunity
Foster good relations
Advancing equality Remove or minimise disadvantages suffered by people with protected characteristics due to having that characteristic. Take steps to meet the needs of people with protected characteristics that are different from people who do not have that characteristic (including taking account of a disability). Encourage protected groups to participate in public life and in any other activity where participation is disproportionately low.
Fostering good relations Tackle prejudice Promote understanding
Who the general duty applies to Public authorities listed in Schedule 19 of the Equality Act (e.g. local authorities, FE and HE bodies, schools, health bodies, police, fire and transport authorities, government departments). Public, private, or voluntary organisations carrying out public functions (including on behalf of a public authority). The Equality Act uses the same definition as the Human Rights Act 1998 (which was used for the gender and disability equality duties).
Assessing relevance Public authorities covered by the general equality duty should consider all their functions to determine which are most relevant to the aims of the general equality duty and to the protected groups. Some functions will be more relevant to certain protected groups. There is no prescribed process for determining or documenting relevance (further advice is set out in our guidance).
Equality information Equality information is useful for assessing relevance, setting objectives, planning engagement and for assessing the impact of your policies and services on equality and good relations. Collect and use information across your functions, across the aims of the general equality duty, and across the protected characteristics. Identify any information gaps and take steps to fill them. Establish a timeframe for collecting any new data.
Sensitive equality information Where employees and service users are not ready to be asked about certain characteristics (e.g. sexual orientation), take steps to develop a culture of trust so this can be done in the future. If this information is collected, explain why it is being collected, how it will be used, and how privacy will be protected. Analysing national or local research and engagement with protected groups is also useful for identifying issues of concern.
Assessing the impact on equality Assessing the impact on equality of your policies and practices is an important part of complying with the general equality duty. The general equality duty does not specify how you should undertake your assessments. Case law from the previous duties indicates that these assessments should be done before decisions are made, and that a written record is useful for demonstrating compliance.
Some case law principles Those who exercise functions must be aware of the duty’s requirements and decision-makers must be fully aware of the implications of the duty when making decisions about policies. The duty must be complied with before and at the time a policy is under consideration and decisions are taken. Consideration of equality matters should be an integral part of decision-making. The duty must influence the final decision. Third parties exercising public functions for a public authority must comply with the duty.
Commissioning and procurement The general equality duty applies to procurement and commissioning by authorities listed in schedule 19, regardless of the value of the contract. The general equality duty applies to procurement and commissioning by organisations who are delivering public functions (but only in relation to their public functions). The Commission is planning to publish a guide to equality and procurement early in 2012.
The specific duties The purpose of the specific duties is to help public authorities meet the general duty. Meeting the specific duties alone is not sufficient to meet the general equality duty.
Who the specific duties apply to The specific duties in England apply to all public authorities listed in Schedule 1 of the specific duties regulations. This covers most (but not all) of the public authorities listed in Schedule 19 of the Equality Act 2010.
Specific duties (England) 1. Publish equality information: Public authorities to publish information to demonstrate compliance with the general equality duty by 31 January 2012, then annually. Schools and pupil referral units should do this by 6 April 2012. Public authorities with under 150 employees are not required to publish information on their employees (but should collect this to help develop their objectives and assess the impact of their employment policies on equality).
This information shall include information relating to people from protected groups who are:
Affected by its policies and practices
All information should be published in an accessible manner. It can be published individually or as part of another document.
Specific duties (England) 2. Prepare and publish equality objectives Public authorities (including schools and pupil referral units) to prepare and publish one or more equality objectives it thinks it should achieve to meet the general equality duty, by 6 April 2012, and at least every four years after that. Ensure the objectives are specific and measurable.
Monitoring and enforcement The Equality and Human Rights Commission is responsible for monitoring and enforcing the equality duty. Individuals with an interest can apply for judicial review in relation to a breach of the general equality duty. The range of enforcement tools set out for the Commission under the Equality Act 2006 still apply to the equality duty. These include: compliance notices, judicial review, section 31 assessments, section 23 agreements and legal interventions.
Messages for public authorities Clear leadership is crucial (including informing staff of their obligations). Build on your work on the race, disability, gender duties. Take action proportionate to the relevance of an issue to equality and to good relations. The equality duty applies across your work (e.g. services, policy-making, employment, planning, procurement, statutory decision-making).
The equality duty in Scotland and Wales The general equality duty is the same for England, Scotland and Wales and it came into force at the same time. The specific duties are different for the three countries. Separate codes of practice will be available for all three countries in 2012.
Guidance is available at: http://www.equalityhumanrights.com/advice-and-guidance/public-sector-equality-duty/guidance-on-the-equality-duty/