The bulk of the Equality Act came into force last October, replacing the previous anti-discrimination laws with a single piece of legislation. The implementation of section 149, introducing a new Public Sector Equality Duty (the duty), went out to consultation between 19 August 2010 and 10 November 2010. The Government Equalities Office has now published the outcome of that consultation: Public Sector Equality Duty and announced that section 149 and the supporting secondary legislation will come into force on 6 April 2011.
Section 149 will not only bring the three existing separate duties on public authorities (relating to race, disability and gender equality) into a single duty; it will also extend the ambit to cover age, sexual orientation, religion/belief, pregnancy/maternity and gender reassignment, so covering eight of the nine “protected characteristics” (all, in fact, except marriage).
Section 149(1) sets out the “general duty” on public authorities thus:
“A public authority must, in the exercise of its functions, have due regard to the need to –
- eliminate discrimination, harassment, victimisation and any other conduct ... prohibited by or under this Act;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
The Act explains that having due regard for advancing equality involves:
- removing or minimising disadvantages suffered by people due to their protected characteristics;
- taking steps to meet the needs of people from protected groups where these are different from the needs of other people;
- encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
The duty therefore requires organisations to consider how they could positively contribute to the advancement of equality and good relations, both in the workplace and in public service provision. It requires equality considerations to be reflected in the design of policies (external and internal) and the delivery of services, and for these issues to be kept under review.
Public bodies will be obliged to set objectives specifying how they will deliver on the general duty and then publish data to demonstrate whether and how they have achieved the outcomes. The new regime will be outcomes focused. Above all, though, the touchstone of the project is “transparency”:
- Transparency: public bodies will have to be open about the information on which they base their decisions, about what they are seeking to achieve and about their results. The data thus published will be available to the public, who can re-use it to hold public authorities to account.
- Workforce transparency: public bodies with 150 or more employees will have to publish data on equality in their workforces relating to, for example, the gender pay gap, the proportion of staff from ethnic minorities and the distribution of disabled staff throughout the organisation.
- Transparency in public service provision: public bodies will have to publish data to demonstrate how effectively they are eliminating discrimination, advancing equality and fostering good relations through the services they provide, commission and procure.
- Transparency about impact on equality: public bodies, as part of their normal business planning processes, will have to set equality outcome objectives, informed by the evidence and data they publish.
In light of the 373 responses received, the Government has amended the draft regulations to ensure that:
- public authorities publish sufficient information to show that they have complied with the general duty;
- public authorities report on their engagement with interested parties, with a particular steer towards engagement in relation to setting their equality objectives; and
- publication of information includes evidence of the analysis that the organisation carried out in order to assess the effect of its policies and practices on equality; a stronger steer away from formulaic, process driven impact assessments, towards genuine consideration of the issues.
The transitional provisions have also been amended to give public authorities a reasonable period from the commencement of the specific duties to prepare and start publishing relevant data. The earliest publication date will be 31 July 2011 (and at least annually thereafter).
The draft regulations – the Equality Act 2010 (Statutory Duties) Regulations 2011 – can be accessed here.
The Equality and Human Rights Commission has published five guides providing advice to the public sector on the duty which can be downloaded from EHRC - New public sector equality duty guidance.
The Commission’s Code of Practice for the duty, expanding upon the nuances of the specific duties, is still in the drafting phase and is, we understand, due to be laid before Parliament in Summer 2011.