age; disability; As was the case with the separate duties, the Equality Act sets out a general duty, supplemented by specific duties and regulations.

Transcription

1 5AFJA >AH / - 27* ) 16;,76; 9D=J FK> E? IA?J H HC= EI=JE I AA@ J M Public sector organisations will be familiar with the three separate equality duties which covered first race, then disability and finally gender. However, the Equality Act 2010 replaces these with a new consolidated and extended single public sector equality duty: As was the case with the separate duties, the Equality Act sets out a general duty, supplemented by specific duties and regulations. The general duty is set out at section 149 Equality Act: "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 that is 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 general duty consists of three individual parts. The first part, which focuses on having due regard to the need to eliminate discrimination, applies to all of the protected characteristics, namely: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation. The second and third parts are limited in their scope to having due regard to advancing equality of opportunity and fostering good relations between people who share relevant protected characteristics and those who do not. For these purposes, marriage and civil partnership is not a relevant protected characteristic; therefore, these parts of the duty do not extend to marriage or civil partnership.

2 The Government Equalities Office ("GEO") says that the equality duty is intended to support good decision making. It encourages public bodies to understand how different people will be affected by their activities, so that their policies and services are appropriate and accessible to all and meet different people's needs. By understanding the effect of their activities on different people, and how inclusive public services can support and open up people s opportunities, public bodies can be more efficient and effective. The GEO has said that the main purpose of the duty is to "bring about a culture change so that promoting equality becomes part of public bodies' core business". The case law on the previous equality duties will remain relevant when interpreting the new single duty. "Due regard" means consciously thinking about the three aims encompassed by the duty as part of any decision making process, crucially before reaching a decision. This point was reiterated in the recent case of R (Luton Borough Council) v Secretary of State for Education. The Administrative Court held that the Secretary of State for Education acted unlawfully in his decision to cancel some projects under the Building Schools for the Future programme because he failed to have due regard to discharging the statutory equality duties. The Secretary of State had not provided satisfactory evidence that any regard was had to the relevant duties and he could not rely on an Equality Impact Assessment carried out after the decision had been made and communicated. The Court said that a major purpose of the requirement to have due regards to the needs of the prioritised groups before a decision is made, not after, is to avoid them being inadvertently disproportionately disadvantaged. The reference to "advancing" equality of opportunity replaces "promoting" equality of opportunity in the existing public sector duties. Having due regard to advancing equality of opportunity will involve having due regard to the need to: remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of those 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. This new provision is intended to move from a process based approach to one which focuses on the achievement of outcomes. The Equality Act explains that having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to: tackle prejudice, and promote understanding. The Equality Act allows more favourable treatment of particular groups for the purpose of the public sector equality duty, provided this is not unlawful positive discrimination. This is intended, in particular, to ensure that reasonable adjustments for disabled people are not prohibited. The Explanatory Notes to the Equality Act give the following examples of the use of the duty to foster good relations: the duty could lead 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; the duty could lead 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; the duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shia Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs. The general duty applies to a "public authority" as defined in the Act, which covers the bodies specified in schedule 19 to the Equality Act. Broadly, this covers: Minister of the Crown; Government departments; the armed forces;!

3 health authorities including strategic health authorities, primary care trusts, NHS trusts, special health authorities and NHS foundation trusts; local government bodies including councils and referral development agencies; governing bodies of educational establishments and institutions; police authorities; ACAS, the Bank of England, the Civil Aviation Authority, the Competition Commission, the Financial Services Authority, the National Audit Office and the Office of Communications; education bodies including the governing body of an educational establishment maintained by an English local authority, governing bodies of higher education institutions, The Higher Education Funding Council for England, The proprietor of a City Technology College, a City College for Technology or the Arts, or an Academy; the Children and Family Court Advisory and Support Service, the Judicial Appointments Commission, the Legal Services Board and the Legal Services Commission; the BBC and Channel 4, in relation to some functions; the Commission for Equality and Human Rights; the Information Commissioner; the Homes and Communities Agency, Natural England, the Office for Tenants and Social Landlords and the Olympic Delivery Authority; Some regulatory bodies in respect of their public functions eg the Association of Authorised Public Accountants, the Association of Certified Chartered Accountants, the Association of International Accountants, the Chartered Institute of Patent Attorneys, the Council for Licensed Conveyancers, the General Chiropractic Council, the General Council of the Bar, the General Dental Council, the General Medical Council, the Health and Safety Executive, the Insolvency Practitioners Association, the Institute of Chartered Accountants, the Institute of Legal Executives, the Institute of Trade Mark Attorneys, the Law Society of England and Wales, the Nursing and Midwifery Council and the Office of the Immigration Services Commissioner. A person or organisation who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the same matters. The list of organisations potentially covered by the duty is therefore much wider than the list set out above. " # The duty is likely to be relevant for public authorities in most aspects of their day-to-day work, including when they are: acting as an employer; developing policies; setting budgets; making public appointments; managing premises; designing and delivering services; commissioning and procuring goods and services. However, the duty will not apply to every decision taken by a public authority. In London Borough of Brent v Corcoran the Court of Appeal held that there was no breach of the race equality duty or disability equality duty where a local authority evicted two individual's from a travellers' site due to breaches of the terms of the licence. The Court of Appeal said that "there are decisions that clearly have nothing to do with race, still less racial discrimination and in such circumstances the duty does not arise". There are six principles to which a public authority should have regard in order to comply with the duty: the decision maker who has to take decisions that do or might affect a particular group must be made aware of his duty to have due regard to the identified aims; the due regard must be fulfilled before and at the time that a particular decision is being considered; the duty must be exercised in substance, with rigour and with an open mind. It must be integrated within the discharge of the public functions and is not a question of "box ticking"; the duty is non-delegable; the duty is a continuing one; it is good practice to keep an adequate record showing that the equality duties had been actually considered and pondered. $ % &

4 As with the former equality duties, the general public sector equality duty is underpinned by specific duties set out in Regulations, which are intended to operate as a means to better performance of the general duty. The aim of the new specific duties is to move away from a process-driven approach to one which is more focused on outcomes, allowing public bodies more autonomy to decide for themselves how best to deliver equality of opportunity. There have been three public consultations on the draft specific duties and they have changed significantly during that process. The specific duties are now set out in the Equality Act 2010 (Specific Duties) Regulations 2011 ("Regulations"), which came into force on 10 September The Government has stated that the aim is to shift public bodies from bureaucratic accountability to democratic accountability, with a key focus on transparency. The Regulations impose just two specific duties: public-bodies listed in the Regulations should publish information to demonstrate their compliance with the equality duty; public bodies listed in the Regulations should set themselves equality objectives. ' $ All public bodies listed in the Regulations except schools have to publish information to demonstrate their compliance with the general duty by no later than 31 January 2012 and at least annually thereafter. Schools must do the same by 6 April 2012, and at least annually thereafter. Public authorities with 150 or more employees must publish information relating to its employees who share a relevant protected characteristic and other persons affected by its policies and practices who share a relevant protected characteristic. Information must be published in such a manner that it is accessible to the public. The Equality and Human Rights Commission and the Government will provide guidance for public bodies to help them decide what information to publish. '( Each public body listed in the schedule to the Regulations must prepare and publish one or more specific and measurable equality objectives. For example, they might aim to increase the percentage of people from ethnic minorities whom they employ to reflect the local population; or they might aim to increase the percentage of older people who access a service over that period, to ensure that the service genuinely promotes equality of opportunity for all. All public bodies are required to publish those objectives by no later than 6 April 2012, and at least every four years thereafter. All public authorities listed in the schedule to the Equality Act 2010 (Specific Duties) Regulations 2011 must comply with the specific public sector equality duties. These include government departments, local authorities, NHS bodies, schools, further education institutions, higher education institutions and the police. However, not all public authorities that are covered by the general public sector equality duty must comply with the specific duties and private sector organisations that carry out public functions do not have to comply with the specific duties (although they must comply with the general duty in relation to their public functions). The Code of Practice for the Public Sector Equality Duty is in the drafting phase and is due to be laid before Parliament this autumn. $ A failure by a public authority or a body exercising a public function to which the duty applies does not give rise to a private law cause of action. Claims to enforce the duty have to be made by an application for judicial review. " ' ' $ " # The duty is a duty of consideration rather than a duty to take any specific steps (save those imposed by the specific duties). However, the sorts of steps which a public authority could be expected to consider taking to comply with the duty in its capacity as an employer include: monitoring its workforce in order to be able to identify whether policies are indirectly discriminatory; training to prevent harassment; training on equality and diversity; ensuring staff facilities are inclusive; )!

5 encouraging under-represented groups to participate in career-advancement training; encouraging applications from under-represented groups; providing staff with education and guidance on issues relating to minority groups eg different cultural or religious norms. +,-.+ "+//+01 Partner T +44 (0) Sandra.wallace@dlapiper.com To comply with the duty, public bodies will need to assess the effect of their proposed decisions on different groups of people. In order to do that effectively they will need to have sufficient data available. They should also consider proportionate ways of mitigating any detrimental impact on a particular group or groups. It will help public authorities to demonstrate compliance with the duty if they keep detailed written records of the equality considerations they have taken into account in coming to a decision, by reference to the duty. There are a number of cases where the courts found that the old public sector duties had been breached where there was no audit trail indicating a proper assessment of the impact of a proposed decision on a particular group. Public bodies are likely to face close scrutiny of their decisions in the context of significant public sector cuts. The duty offers charities and other campaigning bodies a powerful tool to challenge cuts to front-line services in particular. The court in R (Rahman) v Birmingham City Council said "Even where the context of decision making is financial resources on a tight budget, that does not excuse compliance with the [public sector equality duty] and indeed there is much to be said for the proposition that even in these straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater". $ % *

6 This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper UK LLP and DLA Piper SCOTLAND LLP will accept no responsibility for any actions taken or not taken on the basis of this publication. If you would like further advice, please speak to your DLA Piper contact on NB For copyright and/or technological reasons, any internet addresses in the electronic version of this publication may not be active links :3;<= >?@ ABCDE FG HHI JK LMNOPQRMS TU RVM WXPJYJRXLK ZMNOPQRJX[ \ORVXLJRU] >?@ ABCDE ^_`ahbcd HHI JK LMNOPQRMS TU RVM eqf WXYJMRU Xg WYXRPQ[S] hxrv QLM iqlr Xg j e\ kjimll Q NPXTQP PQf gjlm XiMLQRJ[N RVLXONV nqljxok KMiQLQRM Q[S SJKRJ[YR PMNQP M[RJRJMK] oxl golrvml J[gXLmQRJX[ ipmqkm LMgML RX fff]spqijiml]yxm pq rsbtuvwxyez{ }} ~ ƒ ƒ ƒ ƒ ƒ ƒ XiULJNVR ƒ ƒ je\ kjiml] \PP LJNVRK LMKMLnMS] OPU ƒ Wˆojk Š Œ Ž ƒ ƒ } ƒ }] ƒ