Equality and diversity in local government

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Fair and effective local governance

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  • Introductions
    Reason for attending?
  • 9 previous pieces of legislation/over 100 stat instruments.
  • ALSO
    Protects against discrimination in the workplace and when using services
    Clarifies scope for positive action
  • Get ideas
  • Fairness and Freedom: Summary of the Final Report of the Equalities Review (Cabinet Office, 2007)
  • Race – refers to a group of people defined by their race, colour, nationality, ethnic or national origins. E.g. BME, Sikhs, Gypsies and Travellers, Welsh, Migrant Workers.
    Age – a person of any age e.g. 32 years old or range of ages e.g. 18-30. Children u16 are not covered by age legislation in goods, facilities and services;
    Disability – “a physical or mental impairment which has a substantial and long-term adverse effect on that person’s ability to carry out normal day-to-day activities”. E.g. dyslexia, cancer, alcoholism, HIV/Aids.
    Gender reassignment – any person in the process of transitioning from one gender to another. Includes pre-op, during ops and post-op.
    Marriage and civil partnerships – Civil partners must be treated the same as married couple on a wide range of legal matters. E.g. Parental rights, pension beneficiaries.
    Pregnancy and maternity – ‘the condition of being pregnant or expecting a baby’. Maternity refers to the period after the birth and is linked to maternity leave in the employment context. In the non-working context, protection against maternity discrimination is for 26 weeks after giving birth and includes treating a woman unfavourably because she is breastfeeding.
    Religion or belief – includes religious and philospohical beliefs including lack of belief (Athiesm). Generally, a belief should affect your life choices or the way in which you live for it to be included in the definition.
    Sex – a man or a woman.
    Sexual orientation – whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. E.g. Lesbian, gay, bi-sexual, straight (heterosexual), questioning.
  • Direct discrimination: someone is treated less favourably than another person because of a protected characteristic they have, are thought to have, or because they associate with someone who has a protected characteristic
    Direct ‘Associative’ Discrimination: This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
    Direct ‘Perceptive’ Discrimination: This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess the characteristic.
    It is not necessary to prove that the discriminator intended to discriminate.
    In order for someone to show that they have been directly discriminated against they must compare what has happened to them to the treatment a person without their protected characteristic is receiving or would receive.
    It is not direct discrimination against a male service user or staff member to offer a female service user or staff member special treatment in connection with her pregnancy or childbirth.
    It is not direct discrimination against a non-disabled service user or staff member to treat a disabled service user or staff member more favourably.
    Indirect discrimination occurs when an organisation has criteria, policies, procedures or practices which, although they apply to all employees or service users, have the effect of disproportionately disadvantaging people who share a particular characteristic.
    Intention is immaterial: what matters is whether actions/rules/criteria result in disadvantage to people protected by the Act compared with others who do not share that characteristic.
    You can use policies, practices or criteria that could amount to indirect discrimination provided that you can show that it is justified as a “proportionate means of achieving a legitimate aim”. (see objective justification)
    E.g. A policy which says that nurses and other medical staff cannot wear jewellery (religious or otherwise) in the workplace because this may pose a health and safety risk to the individual and their patients is unlikely to be indirect discrimination as it could be justified as a proportionate means of achieving a legitimate aim.
    Harassment : Unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Harassment does not apply to the characteristics of pregnancy and maternity or marriage and civil partnership.
    A person can complain of behaviour that they find offensive even if it is not directed at them.
    The complainant need not possess the relevant characteristic themselves.
    Individuals are also protected from harassment because of perception and association.
    Victimisation Victimisation occurs when a person is treated badly because they have made, supported or are suspected to have made or supported a complaint or grievance under The Equality Act. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. 
    Discrimination arising from disability is a new form of direct discrimination which occurs when a disabled person is treated unfavourably because of something connected with their disability and the unfavourable treatment cannot be justified.
  • Supported in a wide range of qualitative studies, including some carried out in the South West
    Housing:
    SW averagesPP&T
    Owned 73%52%
    Private renting 14% 29%
    LA/Social 14% 6%
    No tenure --15%
    Experiences of homophobic/transphobic incidents in the past two years - 68% had not reported to anyone
    Domestic violence – Over 80% had not reported to anyone
    Ongoing, low-level homophobic abuse creates a climate of fear.
  • 34% of trans people consider suicide
    The National Mental Health Development Unit, was launched in April 2009 and closed in March 2011. It was funded by both the Department of Health and the NHS. The Unit’s website is still accessible, and collates data about mental health in relation to the Equality Act protected groups.
  • Pride, Progress and Transformation – a region-wide survey by ESW among lesbian, gay, bisexual and transgender people carried out during 2010
    The survey resulted in four thematic reports which can be downloaded from the Equality South West website: www.equalitysouthwest.org.uk
    Health and Well Being
    Safety-and-Security
    Visibility Dignity Respect
    Knowledge Voice Influence
  • Local Government Association
  • The Duty also applies to organisations undertaking public functions on behalf of a public bodies
    Due regard to advance equality means:
    take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
    encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
    remove or minimise disadvantages that are connected to a relevant protected characteristic;
    Wider legislative context
    Public Law principles: Public authorities must
    act lawfully and reasonably
    follow fair procedures
    Public Services (Social value) Act 2012 – when awarding contracts - looking beyond the price of each individual contract to consider what the collective benefit to a community.
  • Specific Duties – as set out in the Regulations
    1) Each public authority listed in either Schedule to these Regulations must publish information to demonstrate its compliance with the duty imposed by section 149(1) of the Act.
    (2) A public authority listed in Schedule 1 to these Regulations must publish the information—
    (a) not later than 31st January 2012; and
    (b) subsequently at intervals of not greater than one year beginning with the date of last publication.
    (3) No relevant
    (4) The information a public authority publishes in compliance with paragraph (1) must include, in particular, information relating to persons who share a relevant protected characteristic who are—
    (a) its employees;
    (b) other persons affected by its policies and practices.
    (5) Paragraph (4)(a) does not apply to a public authority with fewer than 150 employees.
    Equality objectives
    3.—(1) Each public authority listed in either Schedule to these Regulations must prepare and
    publish one or more objectives it thinks it should achieve to do any of the things mentioned in
    paragraphs (a) to (c) of subsection (1) of section 149 of the Act.
    (2) The objectives must be published—
    (a) not later than 6th April 2012; and
    (b) subsequently at intervals of not greater than four years beginning with the date of last
    publication.
    (3) An objective published by a public authority in compliance with paragraph (1) must be
    specific and measurable.
  • Drawn from accumulated case law in relation to previous equality duties covering race, disability and gender and applicable to the new single duty.
    Scrutiny panels/committees need to be aware of, and vigilant in relation to compliance, including scrutiny of EIAs.
  • Five minutes for reading through and noting
    Ten minutes for report-back
    Case 4 - particularly controversial
  • Point 1 calls for a preliminary assessment
    - Does the policy affect services to patients or working conditions/patterns of staff ?
    If so does it meet the needs of / might it affect differentially any of the protected groups?
    2. See pack for Somerset CCG Equality Impact Assessment Guidance and Initial Information form.
    There are important issues affecting the well-being and concerns that arise in relation to health and care for older people who share protected characteristics. ESW compiled a report (Ageing and Diversity in the South West ) http://tinyurl.com/ageing-and-diversity-SW highlighting some of these issues in 2010.
    4. The Equality and Human Rights website has a wide range of guidance documents and research reports. Some of these are on ESW website.
    http://www.equalityhumanrights.com/uploaded_files/eiaguidance.pdf
    5. There is a standard template for NHS Equality Impact Assessment:
    http://www.nhsemployers.org/SiteCollectionDocuments/EqIA_template200109.pdf
  • Because the general equality duty requires you to analyse the effect of your organisation's functions on all protected groups, public authorities will not be able to meet the duty unless they have enough usable information. This points to the need for experiential/qualitative information. not just statistics.
    There are many research reports that identify the issues faced. Familiarisation with national or local research and engagement with people from protected groups is a useful way of identifying potential issues of concern.
    If public authorities have not yet achieved a culture where employees or service users are ready to be asked about aspects of their identity (e.g. sexual orientation, transgender identity, religion or belief,) they should take steps to create a culture of trust in which this information could be collected.
    It is essential to be clear why equality monitoring information is being collected, what it will be used for, and how privacy will be protected.
  • Objective justification is a tough test which requires that employers and service providers will not be able to make arbitrary decisions which are not supported by evidence.
    Proportionate: The discriminatory effect of any proposal should be significantly outweighed by the importance and benefits of its legitimate aim, and the
    Employer/service provider should have no reasonable alternative.
    Legitimate aims: Economic factors such as business needs and efficiency may be legitimate aims, but arguing that it could be more expensive not to discriminate will not in itself be a valid justification. (dti)
    ‘Objective justification’ also required when considering policies that propose taking positive action to address under-representation of protected groups in those using services designed for universal use..
  • http://bridgelearning.org.uk/wp-content/uploads/2012/01/The-Bridge-equality-posters-201210.pdf - for examples of posters
  • Equality and diversity in local government

    1. 1. Equality and diversity: Fair and effective local governance
    2. 2. Aims • To gain an understanding of the Equality Act 2010 and the implications for councillors’ decision making – Clarify what is meant by ‘equality’ – Appreciate the impact of discrimination on individual health and wellbeing – Understand the principles and purpose of equality analysis (Equality Impact Assessment) • To stimulate thinking about how to embed equality and diversity into policy and practice
    3. 3. Why the Equality Act 2010? • Gaps and anomalies in discrimination protections persisted • Harmonised, simplified and strengthened discrimination law to support progress on equality • Consolidated action against ‘Institutionalised discrimination’ into a single public sector equality duty.
    4. 4. Key provisions of the EA 2010 • Identifies nine ‘protected characteristics’ • Defines unlawful discrimination in relation to these • Creates a single Public Sector Equality Duty
    5. 5. Discussion: What do we mean by equality?
    6. 6. “An equal society protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish... “An equal society recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be.”
    7. 7. Nine ‘Protected Characteristics’ Age Race isability D Marrriage Ma iage and Civilil and Civ hip Parrnerrship Pat tnes ex S Pregnancy Pregnancy and and Maternity Maternity Sexua l Orien tation Relig ion or Be lief Gender nt assignme Re
    8. 8. Forms of unlawful discrimination Direct E.g. Excluding a person from, or creating obstacles to accessing goods or services because of a protected characteristic. Indirect E.g. Requiring complaints/comments to be registered in written English. Harassment E.g. Abusive comments about a person’s gender identity or sexuality. Victimisation less favourable treatment of a discrimination complainant or someone supporting a complainant
    9. 9. The human consequences • Often people who are discriminated against find it hard to admit it to themselves or others, but ... • Discrimination is a recurring fact of life for many - affecting mental health and destroying sense of security and belonging • Young LGB and Trans people can experience rejection from those closest to them, often resulting in homelessness ...
    10. 10. National Mental Health Development Unit
    11. 11. LGB&T survey • At home: “...The worst prejudice has come from religious friends and relatives.” • At work: “I was continually called names at work and physically assaulted, but was not backed up by the management, leading to a mental breakdown and ill-health retirement.” • In the public sphere: “The biggest problem I face is assumption of heterosexuality.”
    12. 12. Responsibilities of councillors “Councillors are expected to understand the impact of cutting budgets and to mitigate potential negative outcomes, especially the cumulative impact on specific groups of people. Getting this right will ensure fairness and equality of opportunity for local people.” (A guide for new councillors 2013/14: Local Government Association http://www.local.gov.uk/c/document_library/get_file?uuid=4477f9ae-e3cb-4f29-b135 )
    13. 13. The role of officers/advisers • To understand the legislation and the impact of discrimination, and to treat everyone with respect and dignity • To gather, analyse and use equality data • To arrange consultation/engagement with communities of interest, particularly most excluded • To present policy options with a thorough equality analysis - ideally identifying how equality can be promoted
    14. 14. Why a Public Sector Equality Duty? “It is incumbent on every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities.” (Lord William MacPherson, Stephen Lawrence Enquiry repor, 1999)
    15. 15. What it says ... A public authority must, in the exercise of its functions, have due regard to the need to— a.eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act; b.advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; c.foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
    16. 16. Specific Duties under the PSED • Annual publication of equality information to demonstrate compliance with the Duty • To include equality data relating to – People affected by policies and practices – Employees where more than 150 • Prepare and publish one or more specific and measurable equality objectives not less than every four years.
    17. 17. ‘Due regard’ - case law principles 1. Decision-makers must be made aware of their equality duties 2. Equality must be considered at the time decisions are made 3. Analysis must be rigorous - the impact of the proposal or decision must be properly understood 4. The duty to have due regard cannot be delegated 5. The duty is ongoing – it must continually be revisited and borne in mind. 6. Where negative effects are identified potential mitigation must be considered 7. The process of having due regard should be documented and transparent
    18. 18. Examples from case law discussion • Read and note key points from your example/s • Comments?
    19. 19. Knowing your people The importance of equality analysis/ equality impact assessment
    20. 20. Equality analysis (EIA) - guiding principles 1. An equality analysis should be carried out if a policy is relevant to equality; the most relevant policies should be assessed first and most thoroughly. 2. The time and effort involved should be proportionate to the relevance of the policy. 3. The quality of an equality impact assessment is measured not by length but by the quality of the analysis, the action taken as a result and the outcomes achieved 4. Good equality analysis /EIA requires good evidence/ understanding
    21. 21. Equality analysis – guiding principles 5. Lack of data is not an excuse for not assessing impact – where relevant data not available it must be gathered. 6. Information and insights from involvement and consultation are essential - should usually be carried out as part of the main policy development process. 7. Equality analyses should always include an action plan. 8. The analysis must always inform the final decision on a policy. 9. Unless a policy is already perfect for equality (which is highly unlikely), an equality analysis /EIA should lead to policy change.
    22. 22. Objective justification An employer or service provider is not liable for some kinds of discrimination if there is 'objective justification’. Some key points from the case law are: • The 'legitimate aim' must represent a real, objective consideration. • The action taken must be 'proportionate'. Courts take into account the seriousness of the discriminatory impact: The more serious the impact, the more convincing the objective justification must be. • It is also relevant whether due regard has been paid to fulfilling the aim through alternative means.
    23. 23. Some key messages • Publicity – make diversity and inclusivity visible (website, posters, published policies) – invite feedback? • Ensure gaps in equality data are identified and addressed (monitoring, research, surveys, consultations/engagement) • Apply ‘due regard‘ across all public functions (e.g. commissioned services, grants to local charities) • Identify and assess equality issues before decisions are made and when reviewing outcomes • Ensure staff are appropriately awareness trained • Remember why it matters!
    24. 24. LGB&T survey : findings • LGB&T people more likely to vote than general population: • Voting intentions strongly influenced by party attitudes to diversity. • Diversity of methods, anonymity, and trust are key to effective consultation and complaints feedback • Anticipated prejudice affects civic and voluntary activity
    25. 25. Useful information Equality and Human Rights Commission http://www.equalityhumanrights.com/uploaded_files/EqualityAc t/PSED/ehrc_psed_policy_making_web.pdf Local Government Association http://www.local.gov.uk/search/-/results/Equality%20and%20Dive Government Equalities Office https://www.gov.uk/government/publications/equality-act-guidan

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