MIDDLESBROUGH COUNCIL
EXECUTIVE REPORT
Equality Act 2010 – Overview and resulting
changes to processes
Deputy Mayor
Assistant Chief Executive
21 December 2010
PURPOSE OF THE REPORT
- The purpose of this report is to summarise the work being undertaken across the organisation to ensure compliance with the requirements of the Equality Act 2010 (referred to as the Act within the rest of this report) where alterations to existing arrangements are required.
SUMMARY OF RECOMMENDATIONS
- It is recommended that:
§ the details of the Act and the actions being taken are noted
§ further papers be brought forward on individual aspects of the Act if required.
IF THIS IS A KEY DECISION WHICH KEY DECISION TEST APPLIES?
/ It is over the financial threshold (£75,000)It has a significant impact on 2 or more wards
Non Key / x
DECISION IMPLEMENTATION DEADLINE
4. For the purposes of the scrutiny call in procedure this report is
Non-urgent / xUrgent report
If urgent please give full reasons
BACKGROUND AND EXTERNAL CONSULTATION
6. The Equality Act was introduced by the previous government in an attempt to simplify and strengthen the numerous pieces of separate legislation that existed previously which had resulted in different levels of protections for different groups.
7. The majority of theAct came into force in October 2010. From April 2011 further duties will come into force and the Government is still considering whether to implement a number of additional provisions that were included within the Act. The main areas of change to the equality law framework are set out below.
Requirements now in place
Restrictions on asking health related questions during recruitment and selection processes
8. The Act introduces new rules to discourage employers from asking job applicants health and disability related questions except in specified situations. Apart from these specific exceptions[1], employers are only allowed to ask questions about health once a conditional or unconditional job offer has been made. It is still possible to make an offer that is subject to a satisfactory attendance record, however disability related illness cannot be considered a reason to withdraw a job offer and it can be quite difficult to identify whether an absence relates to a disability.
9. The Council’s recruitment and selection policy will be revised to reflect these requirements. Questions relating to sickness absence have been removed from application forms and reference requests. Pre-employment medical questionnaires will be undertaken once conditional offers are made, as per current practice.
Issues arising /Actions required
/ Current status / LeadRecruitment and retention processes and manager awareness of new rules / Revision of the recruitment and selection policy. / Ongoing – to be in place by 31/12/2010 / HR (Client)
Ensure recruitment procedures always set out the assessment process and offer reasonable adjustments relating to a disability throughout the process. / In place
Check offer letter processes meet the requirements of the Act. / Complete
Ensure all managers are aware of new restrictions on when health related questions can be asked as part of the recruitment process.
Revision of manager training on recruitment and selection processes. / Complete / HR (Client) / Mouchel training team
Extension of protection to all characteristics from third party harassment and changes to harassment definition
10. Previous legislation only protected people from third party sexual harassment by customers, suppliers etc as well as from colleagues. The Act extends this protection to all nine of the protected characteristics:
§ Age
§ Disability
§ Gender reassignment
§ Pregnancy and maternity
§ Race
§ Religion or belief
§ Sex
§ Sexual orientation
§ Marriage and civil partnership.
11. Previously documents referred to diversity strands, these are now referred to as ‘protected characteristics’ in the legislation and subsequent guidance that has been issued.
12. The Council already has policies in place to protect all staff from harassment and bullying whether it is by colleagues or from an external source such as a customer or a supplier. The Act now allows employees to complain (using the Council’s complaints procedures in the first instance) about behaviour that they find offensive, even if it is not directed at them and they do not possess the relevant protected characteristic.
Issues arising / Actions required / Current status / LeadReview harassment policies / A bullying, harassment and discrimination policy is in place to protect all employees from third party harassment; however policy wording is being reviewed to ensure it reflects the new legislation. / Ongoing – to be in place by 31/12/2010 / HR (Client)
Staff awareness / Ensure all staff are aware of the new definitions of harassment and expected standards of behaviour through communications. / Ongoing – to be in place by 31/12/2010
Meeting duties in relation to prevention of harassment / The Council currently only measures racist incidents witnessed by staff. The Act places a duty to protect all the protected characteristics from harassment, therefore this process will need to be revised to cover all hate crime. / Ongoing – to be in place by April 2011 / Corporate Performance Team
Changes to definition of discrimination for disability
13. Protection from discrimination for people who have a disability has been strengthened. The definition of disability in the Act has been amended made it easier for a person to show that they are disabled. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities that are personal to each individual. More detailed guidance on this is expected to be issued in Spring 2011.
14. Claims for indirect discrimination arising from a disability can now also be pursued. Indirect discrimination can occur when universal application of a policy, process or decision leaves someone with a disability disproportionately affected. The Act contains a number of specific measures including the following:
§ Schools are now required to provide auxiliary aids and services for disabled pupils, for example, special equipment and large-print books, where reasonable.
§ A local authority is not allowed to refuse a wheelchair-accessible taxi licence in its area solely because it has a policy of controlling the overall number of taxis.
Issues arising / Actions required / Current status / LeadExtension of indirect discrimination / Ensure HR policies reflect rights set out within the Act. / Ongoing / HR (Client)
Schools duties / Ensure that a revised Equal Opportunities policy is developed for schools to adopt that includes this. / Ongoing / Corporate Performance Team
Taxi licensing rules / Ensure processes reflect this requirement. / Complete / Taxi Licensing Team
Clarification of protection from perceptive and associative discrimination in addition to direct and indirect discrimination
15. The Act includes protection for each of the nine characteristics set out at paragraph nine from perceptive discrimination. Perceptive discrimination occurs when an individual is discriminated against because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
16. Associative discrimination has also been included in the Act for all of the protected characteristics. This protects people who are discriminated against because they are associated with another individual who has a protected characteristic.
Issues arising / Actions required / Current status / LeadNew protections from associative and perceptive discrimination / Revision of bullying, harassment and discrimination policy to ensure new definitions of discrimination are included. / Ongoing – to be in place by 31/12/10 / HR (Client)
Awareness raising of Act provisions to managers, staff and employee focus groups. / Ongoing
Changes to gender reassignment definition
17. The Act removes the requirement that a person has to be medically supervised to qualify for protection. They will now be protected from discrimination, harassment and victimisation if they are proposing to undergo, are undergoing or have undergone gender reassignment treatment.
Issues arising / Actions required / Current status / Lead officerEnsure policies reflect this / Review relevant HR policies. / Complete / HR (Client)
Staff awareness / Equalities training is included as part of customer service training and includes treating all people with respect and dignity. / In place
Duties due to come into force from April 2011
Creation of a Single Equality Duty
18. The integrated Equality Duty requires public bodies (and private bodies that deliver a public function) to consider the needs of diverse groups when designing and delivering services so people can get fairer opportunities and equal access to services. The duty covers all the protected characteristics as set out in paragraph five with the exception of marriage and civil partnership.
19. The duty does not create any private rights and it will not be possible for an individual to claim damages. The protected characteristics subject to the single equality duty are:
§ Age
§ Disability
§ Gender reassignment
§ Pregnancy and maternity
§ Race
§ Religion or belief
§ Sex
§ Sexual orientation.
Issuesarising / Actions required / Current status / Lead
Existing Equality Impact Assessment (EIA) processes will not reflect the requirements of the Act from April 2011 / Review the EIA process / Complete / Corporate Performance Team
Strategic equality and diversity documents / Review strategic documents such as the Single Equality Scheme and the Diversity policy to ensure they meet Act requirements. / Ongoing
Requirement to “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 disproportionally low”. / Part of ongoing Community Regeneration activity.
Links into the Big Society transformation review. / Ongoing / Director of Regeneration / Principal Corporate Development Officer
Changes to requirements placed on the Council to publish equalities data
20. Public bodies with 150 or more employees will be required to publish certain equalities data about employees. The government have indicated that the following data will be required:
§ the gender pay gap figure
§ the proportion of BME employees
§ the distribution of disabled employees throughout the organisational structure.
21. Further detailed information is awaited on how data should be calculated. By 4 April 2011 the Council will also be required to publish “assessments of the impact of its policies and practices and the likely impact of its proposed policies and practices” i.e. equality impact assessments.
Issues arising / Actions required / Current status / LeadEIA publication / EIAs should be published separately on the website to pick up those decisions taken by CMT that do not get added to commis – CMT direction required. / Ongoing / Corporate Performance Team
BME employees data / Once detailed guidance is issued in January on how this should be calculated, arrange for publication on the website*. / Ongoing
Disabled employees data / Once detailed guidance is issued in January on how this should be calculated, arrange for publication on the website*. / Ongoing
Publish the gender pay gap figure / Identify the gender pay gap figure and whether additional information and data is required to contextualise it and arrange for publication on the website by 4 April 2011 and annually thereafter. / Ongoing / Director of HR / Assistant Chief Executive
* Following publication of the data in April to meet the requirement of the Act to publish this by 4 April 2011, it may be possible to incorporate this within the annual publication of the workforce data monitoring report (published every June).
Positive Action in recruitment and selection
22. Currently organisations are allowed to target under-represented groups in recruitment campaigns. This aspect of positive action has been in place for some time. It is designed to:
§ alleviate disadvantage experienced by people who share a protected characteristic
§ reduce under-representation in relation to particular activities
§ ensure groups’ particular needs are met.
23. In addition to reiterating the provisions above (which replaced previous legislation on 1 October 2010) the Act contains provisions to allow this to continue alongside a new feature, positive action within recruitment and selection. This would allow positive action to be applied to a situation where two candidates are both equally suitable for the role but one is from an under-represented group within the organisation’s workforce. The Coalition has now confirmed that from April 2011 employers will have the option of using positive action to address under-representation in the workforce.
24. Whilst the intentions of the legislation are laudable, implementation of this provision could be fraught with difficulties. It is extremely difficult to determine whether candidates are as equally suitable as each other and there is the potential for discrimination claims to be filed by unsuccessful candidates who feel the policy has been misapplied. The position has therefore been taken that any plans to implement this must be approved by the HR team.
Aspects of the Equality Act 2010 still being considered by Government
Dual discrimination
25. The Act will allow complaints of direct discrimination on up to two combined protected characteristics, e.g. disability and gender, or disability and race.
Measure not coming into force
Duty to consider socio-economic impact at a strategic level
26. On 17 November Theresa May, the government Minister for Women and Equalities confirmed that the duty to assess the socio economic impact of Council plans at a strategic level would not be enacted by the Government. However this is a function that is already undertaken within the Council as part of core business planning processes.
EQUALITY IMPACT ASSESSMENT
27. Not applicable. This is a summary report of individual actions being taken to comply with the requirements of the Equality Act. Where applicable, separate reports on those actions have been prepared for member consideration and will be impact assessed if appropriate.
OPTION APPRAISAL/RISK ASSESSMENT
28. Not applicable – policy / process changes are statutorily required.
FINANCIAL, LEGAL AND WARD IMPLICATIONS
29. Financial - there are no direct costs to the Council as a result of this report as it is for information only.