STUART BRITTENDEN

PUBLIC SECTOR EQUALITY DUTY & SPECIFIC DUTIES

  1. The EqA 2010 fuses together the former public sector equality duties relating to race, disability and gender. It also takes a strident step in widening the scope of the public sector duties so as to create a single equality duty which covers age, sexual orientation, religion or belief, gender reassignment, as well as making it clear that it also covers pregnancy and maternity (which was formerly only impliedly covered by the gender duty).
  1. This paper addresses the nature and scope of:

(i)the general public sector equality duty;

(ii)the proposed specific duties (which are currently the subject of consultation until November 2010); and

(iii)the socio-economic duty (apparently) still under consideration…

  1. GENERAL DUTY

What is not covered?

  1. The single equality duty does not apply to marriage and civil partnership: section 149(7). Part-timers, trade union members (in respect of discrimination on grounds of membership/activities etc…), fixed term employees, and agency workers are excluded from the single equality duty (as well as from the ambit of EqA as a whole.

Rationale

  1. The former Labour Government recognised the fact that many public authorities were already taking steps to adopt an integrated approach to other forms of discrimination. The justification for the single equality duty was that it would:

‘provide significant rationalisation of benefits, promote the development of more personalised public services which better meet people’s diverse needs, and place the achievement of equality outcomes at the heart of our public services’.

What bodies are covered?

  1. Previously different approaches were adopted depending upon the type of discrimination in issue. Under RRA 1976, specific bodies subject to the public sector duties were listed. In SDA 1975 and DDA 1995 the duties applied to bodies which had functions of a public nature. The EqA combines both approaches. Accordingly, the equality duty can bite in one of two ways. Section 149 sets out the general equality duty which requires public bodies to have due regard to the need to eliminate discrimination, harassment, victimisation and any other prohibited conduct, as well as a requirement to advance equality of opportunity and foster good relations across the protected characteristics. Schedule 19 specifically lists public authorities covered by the duty.
  1. The list can be amended by a Minister of the Crown or by Scottish and Welsh Minister with the consent of the Minister. New bodies can only be added if they are exercising at least one public function (s.151). Prior to each amendment the Minister must consult ensure that the appropriate persons have been consulted with (s.152).
  1. In addition to those specifically listed, Section 149(2) imposes the same duties on others who exercise public functions, but only in respect of those public (as opposed to private) functions. Public functions are defined by reference to the definition contained in HRA 1998.
  1. The Duty does not extend to those listed in Schedule 18, for example the House of Commons and Lords, the Secret Intelligence Service and the General Synod of the Church of England. Paragraph 2 of Schedule 18 disapplies the equality of opportunity limb in relation to immigration functions in respect of race (except in so far as it includes “colour”). For example, the UK Border Authority, when taking immigration-related decisions, will not be required to give due regard to the need to advance equality of opportunity for people of different races, religious beliefs, or age, when taking those decisions. However, it will still be required to give due regard to the need to advance equality of opportunity for disabled people, for men and women, for people of all sexual orientations and transsexual people when making those decisions.
  1. In August 2010, the coalition produced a consultation document Equality Act 2010: The public sector Equality Duty Promoting Equality through transparency: A Consultation(August 2010). It proposes to exclude certain functions from the application of the general duty for some bodies (e.g. BBC, C4 and S4C), in relation to activities relating to the provision of a content service, as well as their commercial activities. The intention here is to ensure unfettered editorial independence. Draft regulations have been produced and are annexed to the consultation document.
  1. The government states in the paper that the consultation period will last until 10 November 2010. It proposes to publish its response within 3 months with the aim of bringing in the general and specific duties by April 2011 (para 8).

Scope of duty

  1. Section 149 (1) instructs public bodies to have regard to three specified matters in the exercise of their functions:

(i)eliminating conduct that is prohibited by the Act, including breaches of non-discrimination and equality rules in occupational pension schemes and equality clauses or rules in terms of work;

(ii)advancing equality of opportunity; and

(iii)fostering good relations between people who share a protected characteristic and people who do not share it.

Advancing equality of opportunity

  1. Section 149 (3) details what is meant by ‘having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it…’ as involving the need to:

(i)remove of minismise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(ii)taking 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; and

(iii)encouraging 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.

Fostering good relations

  1. Fostering good relations is also defined in section 149(5), and involves having due regard to the need to tackle prejudice, andpromote understanding.
  1. For example, the duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Somalian and white British residents living people in a particular area, with the aim of fostering good relations between people of different racial backgrounds.

Complying with the duty

  1. In order to comply with the public sector equality duty, it may be necessary for the public body to make use of exceptions which permit different treatment, and use the positive action provisions in Chapter 2 of Part 11 where they are available: section 149(6). However, that does not permit more favourable treatment in circumstances where this is prohibited by the Act.

Some examples

  1. The Explanatory Notes accompanying the EqA provide a number of examples of how the duty could be applied in practice, for instance, the duty could result in:
  • a local authority to target training and mentoring schemes at disabled people to enable them to stand as local councillors, with the aim of advancing equality of opportunity for different groups of people who have the same disability, and in particular encouraging their participation in public life.
  • a local authority to provide funding for a black women’s refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women, and in particular meeting the different needs of women from different racial groups.
  • a large government department, in its capacity as an employer, to provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff.
  • a local authority to review its use of internet-only access to council services; or focus “Introduction to Information Technology” adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people.
  • a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.
  • a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shi’a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs.

17.Other examples of positive action might include:

  • Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.
  • An NHS Primary Care Trust identifies that lesbians are less likely to be aware that they are at risk of cervical cancer and less likely to access health services such as national screening programmes. It is also aware that those who do not have children do not know that they are at an increased risk of breast cancer. Knowing this it could decide to establish local awareness campaigns for lesbians on the importance of cancer screening.

Enforcement

  1. Failure to comply with the public sector equality duty is not actionable in respect of individual legal rights. Any recouse has to be by way of judicial review. The Explanatory Notes give the following example:
  • A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. She would need to consider whether to pursue judicial review proceedings.

II.SPECIFIC DUTIES

  1. The EqA retains the former structure of imposing a general duty in the form of the SED and supplementing this with specific duties which are designed to buttress/support the general duty.
  1. The EqA is silent as to the specific duties which are to be imposed. Instead, section 153 confers a power to impose specific duties by means on a public authority listed in Schedule 19 of secondary legislation. The specific duties are legal requirements designed to help public bodies meet the general duty.
  1. Section 155 also empowers a Minister to impose specific duties upon a public authority ‘in connection with its public procurement options’. The reason why public procurement is given special attention is obvious. Approximately £220 billion is spent annually by the public sector on goods and services. According to the former Labour Government, it is:

‘well established that public procurement can and should be used to support social policy objectives, including equality… whilst there are pockets of good practice in using public procurement to promote equality, we believe public procurement should be used more consistently to help achieve equality objectives’.

  1. The Explanatory Notes accompanying the EqA provided some examples in respect of how specific duties could apply as regards procurement.
  • A person exercising such power may decide to impose a specific duty that requires specified public bodies to take into account particular national priorities set out in a Public Service Agreement when setting their equality objectives.
  • A person exercising the power may decide to impose a specific duty which requires contracting authorities to set out how they will use their procurement functions to better meet the requirements of the public sector equality duty.
  1. In June 2009 the former government set out proposals for specific duties and published an updated policy statement in January 2010 setting out the then proposed approach. The coalition has developed a new approach in the consultation document Equality Act 2010: The public sector Equality Duty Promoting Equality through transparency: A Consultation(August 2010). The changes reflect the shift in ideological approach:

‘Our new approach also takes into account the Government’s clear aim of replacing top-down interventions from the centre with local democratic accountability driven by transparency and decentralisation…’ (para 3.5).

  1. The ideological change is emphasised in Chapter 4 of the consultation paper. Para 4.2 sets out the changed demographic landscape, pointing out that in 1984 there were 660,000 people in UK aged 85+. The numbers have nearly doubled, reaching 1.4 million in 2009. By 2034 the number of people aged 85+ is projected to reach 3.5 million, accounting for 5% of the total population. The proportion of people from ethnic minorities in UK has increased from 8% in 2001 to 12% in 2008. The government stresses that ‘as our society becomes increasingly diverse, it becomes even more important that public bodies reflect the diversity of the population and ensure that public services meet diverse needs’ (para 4.2).
  1. In terms of the rationale for public sector duties:

‘Public bodies have huge potential to create a fairer society through the way they deliver their services, the people they recruit, and the jobs and training they offer to their staff. They also have effective levers to encourage businesses, civil society organisations and other bodies to use their creativity and resources to bring about a lasting change of culture through the way in which they commission and procure services’ (para 4.3).

  1. However, the methodology is again markedly different from that envisaged by Labour:

‘The Government believes that public bodies will perform best if they are free from unnecessary red tape and allowed to concentrate on their core functions. We must remove time-wasting bureaucracy and strip out unnecessary prescription, processes and monitoring regimes to free up resources for front-line services’ (para 4.4).

  1. The core principles underpinning the specific duties are set out at para 4.8:

(i)transparency – the proposals ‘empower citizens … to hold public bodies to account by requiring them to put their data relating to equality in the public domain using open, standardised formats and licences’;

(ii)choice – more freely available date will enable people to compare public bodies and where possible, choose between providers;

(iii)devolved power – the proposals seek to empower public bodies to identify and work towards achieving their own priorities, encouraging innovation and ownership by limiting Whitehall interference/prescription;

(iv)measurable results – the proposals seek to ensure that public bodies focus on achieving improved results by requiring them to be transparent about the objectives. The publication of robust data will allow the public to hold them to account for progress made in eliminating discrimination, advancing equality and fostering good relations.

Specific Approach

  1. The Government has shied away from requiring public bodies from engaging with people from protected groups. It is something which ‘most public bodies should do from time to time in order to carry out the general duty’ but they should retain ‘flexibility’ to decide for themselves when and how to engage with citizens (para 5.7).

Workforce transparency

  1. Public bodies with 150+ employees will be required to publish data on equality in their workforces. The EHRC Code of Practice will specify what data should be published, e.g. gender pay gap, BME staff, and the distribution of disabled employees. The data should be published annually and be accessible (para 5.10).
  1. It is recognised that public bodies may not have achieved a culture in which employees are ready to provide personal information such as their sexual orientation or religion. Therefore it is not proposed at this stage that there be a requirement to routinely collect data on such ‘sensitive personnel issues’ (para 5.11).

Transparency in public service provision

  1. Public bodies will be required to publish data that will enable people to judge how effectively they are eliminating discrimination, advancing equality and fostering good relations through the services they provide, commission and procure (para 5.13).

Transparency as to outcomes

  1. Public bodies not only will have to be transparent about their equality data, but also about the equality outcomes they are working towards. They will be required to set out equality objectives, which should be ‘specific, relevant and above all measurable’. This approach is in line with the government’s emphasis on ‘democratic rather than bureaucratic accountability’ (para 5.15). It is envisaged that these objectives will be set and reviewed at least every 4 years (para 5.16).

Departure from Labour proposals

National Priorities specified top-down

  1. The Labour government proposed that public bodies should be required to have regard to equality priorities decided at a national level by the relevant Secretary of State when setting their equality objectives. This has now been dispensed with on the basis that ‘public bodies should be free from the central diktats that so often skew priorities, divert resources and hinder the ability to react more rationally to local needs. Putting trust in public bodies by reducing Whitehall interference will give them flexibility to respond effectively to local needs, supported by local data. Therefore, we do not propose that Secretaries of State should set top-down targets or national equality priorities…’ (para 5.19).

Public Procurement

  1. Whilst acknowledging that up to £220billion is spent by the public sector each year on goods and services (15% of UK GDP), the government does ‘… not believe it is necessary to impose burdensome additional processes on public bodies telling them how to conduct their procurement activity: they will be judged on the outcomes that they deliver’ (para 5.21).
  1. It seems that the potential impact that was envisaged by section 155 (specifically providing for duties to be imposed in respect of public procurement functions) has been undone by a shift in ideology (and a short paragraph in a consultation document). Given the budgetary constraints affecting the public sector, the danger is that cost will trump the objective of enhancing/promoting equality.

Action Planning

  1. Initially it was proposed that public bodies should set out the steps that they propose to take in order to achieve equality objectives. The Government believes that this is now redundant because citizens will be able to see how a public body is performing on equality and whether it is meeting the objectives it has set itself (para 5.22).

Secretary of State reporting on disability

  1. The Labour government proposed that the Secretary of State would have a reporting duty in relation to disability, requiring a report to be published every 3 years on progress towards equality for disabled people across their policy areas, and their plans to coordinate action to bring about progress. Whilst recognising that coordinated action across the public sector, and transparency on progress are crucial to success in tackling such barriers, the government does not believe that the reporting duty is needed to further these aims. Transparency and accountability will enable disabled people to track and scrutinise progress. Additionally, the EHRC publicly reports every 3 years (para 5.24).

Transitional Arrangements