THE PUBLIC DUTY TO PROMOTE EQUALITY Tess Gill There are currently three public sector equality duties: Race Disability Gender WHAT ARE THE EQUALITY DUTIES?

THE PUBLIC DUTY TO PROMOTE

EQUALITY

Tess Gill

There are currently three public sector equality duties:

• Race

• Disability

• Gender

WHAT ARE THE EQUALITY DUTIES?

Each of the Duties consists of:

• A general Duty

• Specific Duties

WHAT DO THE DUTIES CONSIST OF?

• The Equality Duties Apply to “Public Authorities”

• The definition of “Public Authority” differs between gender, race and disability.

WHO DO THE DUTIES APPLY TO?

• The general race equality duty applies to all public authorities listed in Schedule 1A of the Race Relations (Amendment) Act 2000.

• There are approximately 43,000 public authorities bound by the general race equality duty.

RACE EQUALITY DUTYWHO DOES IT APPLY TO?

• Unlike the Race Equality Duty there is no statutory list of public authorities

• The Disability Duty uses the Human Rights Act definition of “public authority”

• The Disability Equality Duty applies to all public authorities as defined by section 6(3)(b) of the Human Rights Act 1998

DISABILITY EQUALITY DUTYWHO DOES IT APPLY TO?

• Like the Disability Equality Duty

• No statutory list of public authorities

• “Public authority” is defined in accordance with section 6(3)(b) of the Human Rights Act 1998

GENDER EQUALITY DUTYWHO DOES IT APPLY TO?

The following public authorities are covered by the equality duties:

• Ministers and Government Departments

• Executive Agencies

• Local Authorities

• Courts and Tribunals

• Crown Prosecutions Service

• Inspection and Audit Bodies

• Police Authorities and Chief Officers of Police

PUBLIC AUTHORITIES

• Each of the general duties requires public authorities to have due regard to the elimination of unlawful discrimination and to the promotion of equal opportunities;

•“DueRegard” requires proportionality,(greater consideration to be given to functions or policies that have the most effect) and relevance.

THE GENERAL DUTY

• A listed public authority must, in carrying out its functions, have due regard to the need to:

- Eliminate unlawful discrimination

- Promote Equality of Opportunity

- Promote good relations between persons of different racial groups

GENERAL DUTY – RACE EQUALITY

• Public authorities must identify which of their functions and policies are relevant to the duty

•The weight given to race equality should be proportionate to its relevance

•The three elements of the duty are complementary, they are all necessary to meet the whole duty.

STEPS TO MEET THE GENERAL RACE EQUALITY DUTY

When carrying out its functions a public authority must have due regard to each of the six elements to the general duty

GENERAL DUTY – DISABILITY EQUALITY

1) To promote equality of opportunity between disabled people and other people

2) To eliminate unlawful disability discrimination

3) To eliminate harassment of disabled people that is related to their disability

4) To promote positive attitudes towards disabled people

5) To encourage participation by disabled people in public life

6) To take steps to meet disabled people’s needs even if this requires more favourable treatment

GENERAL DUTY – DISABILITY EQUALITY

• In carrying out its functions a public authority shall have due regard to:

-The need to eliminate unlawful sex and gender discrimination

-The need to eliminate harassment

-The need to promote equality of opportunity between men and women

GENERAL DUTY – GENDER EQUALITY

Gender Re-Assignment

As part of the general gender equality duty public authorities are required to have due regard to the need to eliminate unlawful

discrimination and harassment in employment and vocational training for people who intend to undergo, are undergoing or have undergone gender reassignment.

GENERAL DUTY – GENDER EQUALITY

• Public Authorities are also under specific equality duties

• These differ according to the equality strand

• Specific duties may also differ according to the sector which the public authority operates in

• Specific duties are designed to help public authorities meet their general equality duties

SPECIFIC DUTIES

• Public Authorities are required to prepare and publish a Race Equality Scheme

- A Race Equality Scheme should explain how the public authority will meet its general and specific duties under the Act

- The first scheme should have been published by 31 May 2002

- The schemes are subject to three yearly reviews

SPECIFIC DUTIES – RACE EQUALITYPUBLIC AUTHORITIES

The Employment Duty requires public authorities to:

- Monitor by racial group the number of staff in post

- Monitor by racial group the numbers of applicants for employment, training and

promotion

SPECIFIC DUTIES – RACE EQUALITYPUBLIC AUTHORITIES

• The Employment Duty

• 150+ full time staff – additional monitoring requirements

• The results of this monitoring should be published annually

• The results should be analysed and any necessary remedial action taken to address unfairness, disadvantage or possible discrimination

SPECIFIC DUTIES – RACE EQUALITYPUBLIC AUTHORITIES

Have specific duties to:

- Prepare and publish a Race Equality Policy by 31 May 2002

- Provide the local authority with ethnic monitoring data on staff in schools

- Monitor teaching staff, recruitment decisions and career progression in Further and Higher Education establishments

SPECIFIC DUTIES – RACE EQUALITYEDUCATIONAL INSTITUTIONS

• There is a list of public bodies covered by the specific disability equality duties at Appendix A, Schedule 1 of Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005

• The statutory Code of Practice states that the specific duties are designed to create a framework in which public bodies can plan, deliver, evaluate and report on their performance in carrying out the general duty.

SPECIFIC DUTIES – DISABILITY EQUALITY

The Disability Equality Scheme

- This is at the core of the specific duties on public authorities

- It requires a public authority to publish a Disability Equality Scheme demonstrating how it intends to fulfil its general and specific duties by 4 December 2006

SPECIFIC DUTIES – DISABILITY EQUALITY

The Disability Equality Scheme

Must include a statement of:- The way in which disabled people have been

involved in the development of the scheme- The authority’s methods for impact

assessment- The steps which will be taken towards

fulfilling its general duty (“the action plan”)- The authority’s arrangements for gathering

information - The authority’s arrangements for putting the

information gathered to use

SPECIFIC DUTIES – DISABILITY EQUALITY

The Disability Equality Scheme

• Within three years of the scheme being published the authority must take the steps set out in its action plan and put into effect the arrangements for gathering and making use of information

•The public authority must publish a report containing a summary of the steps taken under the action plan, the results of its information gathering and the use to which it has put the information.

SPECIFIC DUTIES – DISABILITY EQUALITY

• There is a list of public authorities who are required to comply with the specific gender equality duties

• All listed public authorities are required to comply with the same specific duties

• At the heart of the gender equality duty framework is the Gender Equality Scheme

SPECIFIC DUTIES – GENDER EQUALITY

The Gender Equality Scheme• Must contain the public authority’s overall objectives for meeting the gender equality duty, including any pay objectives• Must contain information on how the authority will take action to collect information• How the information collected will be used to meet the general and specific duties• What action will be taken to review the effectiveness of the authority’s implementation of its duties and to prepare subsequent schemes• Including how the impact of existing and new policies and practices will be assessed for their impact on gender equality• How the authority will take action to consult relevant employees, service users and others, including trade unions.

SPECIFIC DUTIES – GENDER EQUALITY

The Gender Equality Scheme

• Requires the actions set out in the scheme to be implemented within three years unless it is unreasonable or impracticable to do so

• The public authority to report against the scheme every year and to review the scheme at least every three years.

SPECIFIC DUTIES – GENDER EQUALITY

Informal Route

• The EHRC would expect to engage in informal correspondence and communication giving non-compliant authorities the opportunity to comply without proceedings

HOW ARE THE DUTIES ENFORCED?

• The Equality and Human Rights Commission has formal enforcement powers

• It can enforce the general equality duties by way of compliance notices and judicial review

• It can enforce specific duties by way of compliance notices

HOW ARE THE DUTIES ENFORCED?

Compliance Notices: General Duties

• The EHRC must first carry out a statutory assessment

• If a public authority fails to comply with a relevant notice the EHRC may apply for a court order requiring compliance

HOW ARE THE DUTIES ENFORCED?

Compliance Notices: Specific Duties• The EHRC may serve a compliance notice on an authority that is failing to comply with specific duties. • It is not obliged to carry out a statutory assessment

• The compliance notice will state that the authority must meet its duties and tell the EHRC within 28 days what it has done to comply with the specific duties

• If the EHRC believes that a public authority on which a notice has been served has failed to comply with the specific duties or to provide requested information it may apply to a county court for an order requiring compliance.

HOW ARE THE DUTIES ENFORCED?

• Organisations and individuals may enforce duties by way of judicial review

• See R( on the application of Chavda v Harrow London Borough Council.

• Need for authority to have clearly recorded compliance with the duties

HOW ARE THE DUTIES ENFORCED?

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