Specific Public Sector Equality Duties

Following on from the reports in our January and March News Round Ups, we are now able to report that the Equality Act 2010 (Specific Duties) Regulations 2011 (the ‘Regulations’) are now due to come into force shortly.

Background

Earlier this year, the Government chose to withdraw its original proposals for the specific public sector equality duties and consequently issued revised regulations in March 2011 for a further period of consultation which ended on 21 April 2011.  The draft Regulations were laid before Parliament on 27 June 2011 with the intention being to have them in force before the summer recess. 

On 19 July, however, the Government announced that the debate in the House of Lords relating to the draft Regulations is now expected to take place in September 2011.  In advance of that, Joanna Smart has looked at the Regulations and what they mean for the public sector and those contracting within the public sector.

The Equality Duty

The general equality duty was created by the Equality Act 2010 (the ‘Act’) and replaced the public sector race, disability and gender equality duties which existed previously. The duty, which came into force on 5 April 2011, now covers the wider protected characteristics of age, disability, sex, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation.

The general equality duty is set out in section 149 of the Equality Act and requires relevant public authorities to 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; and
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The Regulations

Section 153 of the Act gave the Government a power to impose specific duties on certain public bodies to help them comply with the equality duty more effectively. 

The Regulations have therefore been drafted so as to require all relevant public authorities to maintain due regard to the three aspects of the equality duty which are set out above.  The aim is that the Regulations will compel better performance of the equality duty, in particular by increasing openness and democratic accountability across the public sector.  The Government intends that excessive paperwork and unnecessary bureaucratic processes in implementing the duty should be avoided.

Relevant Public Authorities

The specific duties apply to all public authorities as listed in Schedule 1 and Schedule 2 of the Regulations.  Importantly, while this includes almost all of the public authorities also listed in Schedule 19 of the Act, there are some which are absent.  The majority of authorities are listed in Schedule 1, whilst Schedule 2 refers only to schools.

Specific Duties:

Regulation 2: Compliance Information

Relevant public authorities are required to publish information to demonstrate their compliance with the duty imposed by section 149(1) of the Act. Public authorities listed in Schedule 1 must publish this information by 31 January 2012 and those in Schedule 2 by 6 April 2012.  Information must then be subsequently published, at least, annually. 

Relevant public authorities are required to include information relating to people who share protected characteristics and are affected by its policies. Where the organisation has 150 or more employees it must also include information about how its employees are affected by its policies.

Regulation 3: Equality Objectives

Relevant public authorities are required to prepare and publish their own equality objectives.  The objectives must be both ‘specific and measurable’.  They should be published by 6 April 2012 and then again at least every four years.

Regulation 4: Manner of Publication

Relevant public authorities must ensure that the information referred to in Regulations 2 and 3 is published in a manner which ensures that it is accessible to the public.

Guidance and the Future

The Equality and Human Rights Commission have announced that they will be publishing non-statutory guidance for public authorities to help them to comply with the Regulations, although this has not yet been published.  In addition the Government has announced that it is committed to reviewing how the Regulations are working in two years' time, to check they are delivering the transparency and accountability that is intended, and driving the better performance of the general equality duty.

Despite the delay in approving the Regulations, there is currently no indication that this will impact on the proposed January 2012 and April 2012 implementation dates.  Therefore public authorities should review the Schedules to the Regulations to confirm whether they will be subject to them or not, particularly as not all those bodies listed in the Act are required to comply with the Regulations. 

The obligations on public authorities with regard to the specific equality duties are ongoing and will require further work following initial publication to ensure the required re-publication dates under the Regulations are complied with.