New public sector equality provisions take effect
The imposition on public authorities of ‘equality duties’ regarding race, disability and gender represents an important development in British equality legislation. In early April 2007, the gender duty, which applies to public authorities in their role as employers as well as service providers, came into effect. The duty relating to disability came into effect prior to this in December 2006. These duties follow on from the duty on race, which was introduced in 2002.
From 6 April 2007, a new statutory duty, deriving from the Equality Act 2006, came into effect, requiring public authorities to promote gender equality. This follows the imposition of an equality duty concerning disability in the public sector, effective from December 2006 under the Disability Discrimination Act 2005. Some years prior to this, in 2002, an equality duty concerning race was introduced in the public sector, under the Race Relations (Amendment) Act 2000.
The new legislation means that public authorities are now obliged to eliminate unlawful discrimination and harassment and to actively promote equality, as well as carrying out specific duties designed to help achieve this general duty. The institutions affected include government departments, executive agencies, local authorities, governing bodies of education establishments, national health service trusts, police authorities and other bodies undertaking functions of a public nature, which can include private or voluntary sector organisations. At the heart of these duties is a requirement that public authorities, in consultation with all stakeholders, including trade unions, adhere to the following measures:
- produce and publish an equality scheme with objectives and targets for action, and provision for monitoring outcomes;
- achieve the objectives of this equality scheme;
- report on its progress;
- review the initiative every three years.
Currently, a separate equality duty pertains to each of the specific areas – namely, race, disability and gender – which varies slightly. However, a review of discrimination legislation that is currently underway, which will inform a single Equality Act, is expected to lead to the consolidation of these areas. Enforcement of the various duties is the separate responsibility of the relevant equality body, namely the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC). To date, CRE has intervened in a number of organisations, although no enforcement action has been taken. The commissions have issued codes of practice and guidance for organisations on how to meet their responsibilities.
From October 2007, the work of these three commissions will be taken over by the newly established Commission for Equality and Human Rights (CEHR). CEHR will have the power to serve a compliance notice against any organisation which it deems to be failing in carrying out its equality duties; if the organisation still fails to comply, an application for an order can be made to the courts.
Significance of new approach
These positive equality duties represent an innovative and significant development in British equality legislation. They acknowledge the relative failure of the legal framework in mainstreaming equality and organisational change. The enactment of the duties represents a move away from a predominant legislative reliance on a retrospective, individualised and victim-centred complaints approach, towards one requiring a proactive approach by power-holders.
The success rate of individuals complaining of employment discrimination to employment tribunals (ETs) has never been high; this is particularly and consistently true in race discrimination cases, where complainants have a less than one-in-five chance of having their complaint upheld. Where an ET finds that discrimination has occurred, the main and almost sole remedy in practice is a financial one. Accordingly, the emphasis is on compensating the individual rather than requiring unfairly discriminating employers to change their policies, procedures or practices.
The equality duties embody a shift towards requiring organisations to take action without the need for individual litigation.
Likely impact of equality duties
Research into the impact of the race equality duty, four years after its initial implementation, revealed a variation in its application, some lack of action and a concern that the focus was more on procedures than on measurable outcomes. The more recent disability and gender duties address some weaknesses which have become apparent in relation to the race duty, although public sector organisations are still called upon to ‘pay due regard to’ the need to eliminate unlawful gender discrimination and to promote equality of opportunity, rather than to take progressive action towards specified goals. Furthermore, the gender duty does not explicitly require equal pay audits, something which trade unions, EOC and other independent bodies have called for (UK0603019I). Mandatory pay audits are opposed by the Confederation of British Industry (CBI).
Reaction of social partners
CBI does not believe that the new equality duties add value to the public sector and has argued against any extension of such requirements to private sector employers, although the latter generally lag behind the public sector in terms of equal opportunity measures.
Meanwhile, the Trades Union Congress (TUC) has questioned whether the enforcement measures are adequate, noting for example that the legal routes to enforcing the disability duty are narrow and that trade unions cannot themselves seek enforcement of specific duties, but would need to request the commission to act.
Generally, CBI does not believe that legislation is the solution to tackling inequality. It does not wish CEHR to have stronger enforcement powers, fearing that this would undermine the desired approach of partnership with business. However, CBI does feel that gains may be achieved through greater use of the procurement process in instilling good equality practice, something which is being encouraged by the new equality duties.
In a survey published in January 2007, EOC found that women are ‘woefully underrepresented’ in a wide range of senior jobs across both the public and private sectors (UK0701049I).
Linda Dickens, IRRU, University of Warwick