The Equality Duty: Where do we go from here?

1. The Equality Duty: Where do we go from here? Camilla Belich Solicitor UNISON

2. UNISON • UNISON is Britain and Europe's biggest public sector union with more than 1.3 million members • Our members are people working in the public services, for private contractors providing public services and in the essential utilities • Include frontline staff and managers working full or part time in local authorities, the NHS, the police service, colleges and schools, the electricity, gas and water industries, transport and the voluntary sector • Committed to equality and elimination of discrimination

3. What is the Public Sector Equality Duty? A general duty supported by specific duties: • General duty – section 149 of the Equality Act 2010 • The same for England, Scotland and Wales • Specific duties – brought in by secondary legislation Different for England, Scotland and Wales

4. What is the Public Sector Equality Duty? Aims- Section 149: 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 this 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.

5. What is the Public Sector Equality Duty? Advancing equal opportunity (second aim) • (a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; • (b)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; • (c)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

6. Who does it cover? • Protected Characteristics: • age; • disability; • gender reassignment; • pregnancy and maternity; • race; • religion or belief; • sex; and • sexual orientation • Also marriage/civil partnership (first aim only)

7. Who does it cover? • Types of organisations: • Public Authorities as listed in Schedule 19 e.g. local authorities, education bodies, health bodies, police, fire and transport authorities and government departments • Exemptions in Schedule 18 e.g. immigration (second aim), judicial functions, House of Commons and Security Service • Mostly the same for specific and general duties (see Schedule 1 & 2 of specific duty regulations)

8. General Duties • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act • Advance equality of opportunity between people who share a protected characteristic and those who do not • Foster good relations between people who share a protected characteristics and those who do not

9. Specific Duties • England: • Publish information to demonstrate its compliance with the general equality duty annually. Must include information relating to its employees and people affected by its policies and practices (less than 150 employees = exempt) • Publish one or more objectives that it thinks it needs to achieve to further any of the aims of the general equality duty every 4 years. Must be specific and measurable. • Must be accessible to the public

10. Specific Duties • Scotland: • Report on mainstreaming the equality duty • Publish equality outcomes and report progress • Assess and review policies and practices • gather and use employee information • publish gender pay gap information • publish statements on equal pay • consider award criteria and conditions in relation to public procurement • publish in a manner that is accessible.

11. Specific Duties • Wales: • Listening exercise/consultation • Watch this space

12. When did it come into effect? • Timetable: • 5 April 2011 - general equality duty came into force • 31 January 2012 - listed authorities (except schools and pupil referral units) • 6 April 2012 - schools and pupil referral units required to publish equality information • 6 April 2012 - all listed authorities required to publish equality objectives • May 2012 - review announced • April 2013 - review complete?

13. What has the PSED achieved? Case studies

14. Review • Theresa May stated on 15 May 2012: “We have also looked again at the public sector equality duty (PSED). This Government [has] a strong commitment to equality of opportunity. But we also have a strong desire to reduce unnecessary bureaucracy where it exists and consider alternatives to legislation. We committed last year to assess the effectiveness of the PSED specific duties. We have decided to bring forward that review and extend it to include both the general and specific duties to establish whether the duty is operating as intended.”

15. Review • On 15 May 2012, the Home Secretary announced a review of the public sector Equality Duty, as part of the outcome of the Red Tape Challenge • The review will establish whether the equality duties are operating as intended • Due to be completed by April 2013

16. Scope of Review • Terms of reference define scope as follows (from Government Equalities Office): • – Effectiveness of both the General Duty and Specific Duties • – Impact of Duty – costs, burdens and benefits • – Comparative international models • – How the Duty supports delivery of the Government’s Equality strategy • – Role of support and guidance given to public bodies

17. Scope of Review cont. • – How legal risk is managed • – What would improve operation of the Duty • • Broad parameters for the review are that it will: • – look at Great Britain in terms of the General Duty, but will take account of the different • specific duties and circumstances for the Devolved Administrations • – consider the breadth of protected characteristics within the context of the PSED • – consider the budgetary position facing public bodies. • – take account of the duties and powers conferred on the EHRC by the Equality Act 2006.

18. Scope of Review cont. • – Thematic desk-based research (including analysis of case law, international comparisons, assessment of existing research) • – A selection of roundtables with experts and civic society • representatives (qualitative) • – Questionnaires of frontline practitioners (quantitative) • – Case studies of public bodies to test emerging findings

19. Criticisms of the PSED • Ineffective • Needs to be stronger • Adds to ‘red tape’ • Burden on business • Un-necessary • Unclear

20. A Case for maintaining the PSED: • Public authorities must consider impact of decision making on equality • Furthers equality objectives • Challenging decisions with discriminatory impact • ‘Ambulance at the top of the cliff’ • Furthers community ideals • May prevent discrimination

21. Questions: • Have you had any experience of the PSED? • Is your view that it should be maintained or repealed? Why? • How could the PSED be improved? • Would repealing the PSED be a step back for equality? • Any predictions for the future?

22. Let Theresa May know your views! Review likely to be complete by April 2013