Proposed changes on disability equality duty

This page outlines proposed changes relating to the disability equality duty, as well as Government proposals on 'transparency' which include the private sector.

Current Government proposals

Major changes to the duty were proposed in a 2007 Green Paper on a Single Equality Bill. There was a consultation on this, to which the Government has now responded.

The existing separate equality duties on public authorities covering race, disability and gender will be replaced by a single equality duty, which will also extend to gender reassignment, age, sexual orientation and religion or belief.

One of the examples given by the Government is that the single equality duty could lead to a police authority developing an emergency mobile phone text service (though this should be covered already by the disability equality duty).

The Government says that the new single duty will help public authorities focus their efforts on outcomes, rather than on producing plans and documents. It will consult on what processes will be required of public bodies, and which public bodies will be subject to the requirements. It wants to build on good practice that already exists, and to have a design which can be used flexibly and effectively to make a positive difference to people's lives without being too bureaucratic.

It has recognised the concern of some stakeholders that the new equality duty should not be weaker than the existing requirements and has decided to retain the overall structure of the existing duties, that is to say a general duty as described above underpinned by specific duties designed to support performance of the general duty. Under the previous Green Paper proposals the 'general' duty, and thus the duty of public bodies to 'mainstream' equality, might have been abolished.

Some further points:

It was noted that there was general support in the consultation for the setting of strategic priorities by national Governments.
The Green Paper seemed to say only the EHRC could take enforcement action. However, the Government confirms that the option of judicial review proceedings will remain open to anyone who wishes to challenge a public body?s implementation of the general duty.
As part of its work on developing proposals for the specific duties, the Government will consider whether inspectorates have a role to play in monitoring or assessing the performance of public authorities in complying with the duties.
The new duties would not be implemented until around 2010/2011 at the earliest.

Links on current Government proposals (in their response to the consultation):
Framework for a Fairer Future - The Equality Bill (July 2008): www.equalities.gov.uk/publications/FRAMEWORK%20FAIRER%20FUTURE.pdf
Government reponse to the Discrimination Law Review (July 2008): www.equalities.gov.uk/publications/Government_Response_to_the_consultation.pdf
More on Single Equality Act page.

Previous history

Original Green Paper proposals

The Government proposed changes to the disability equality duty in Chapter 5 of its 2007 Green paper on a Single Equality Bill. The proposals were subject to a consultation, the Government's response to which is summarised above. The Green Paper is available at www.communities.gov.uk/index.asp?id=1511245. Examples of the proposals are:

replacing the race, disability and gender equality duties with a single duty on public authorities to promote race, disability and gender equality, and perhaps extending the duty to other grounds of discrimination (this is to happen - see above);
providing a 'clear' statement of the purpose of a single public sector duty, which public authorities should use as a foundation for taking action;
requiring public authorities to focus on a limited number of priority race, disability and gender equality objectives;
considering whether it would be helpful for strategic equality outcomes to be set by the appropriate national Government;
rather than the current specific duties prescribing exactly what processes authorities should adopt, authorities might be given greater flexibility in how they should respond to the duty. They could adopt processes to deliver their priority objectives best in their particular circumstances, rather than concentrating on producing detailed information and documentation as prescribed by law. The four key principles would be
- consultation and involvement;
- use of evidence;
- transparency; and
- capability;
considering whether the proposed single public sector equality duty should apply to virtually all public authorities (as the disability equality duty currently does) or, if not, how it should be targeted;
considering what issues should be included in practical guidance on how public sector procurement can be used to achieve equality outcomes in the private sector.

Views on public sector duty proposals in Green Paper

Equality and Human Rights Commission

The EHRC fully agreed that a single equality duty must focus on outcomes, but it will also need processes which make it possible to achieve the desired outcomes.

It did not agree with the proposal to leave it to public authorities to adopt their own 'equality principles' and to decide for themselves how to meet the equality duty in respect of their various functions. This has the potential to shunt the concept of equality from the core business of public authorities to the margins. Based on current performance, some authorities will prioritise only the most obvious functions and will fail to explore how equality on one or more of the protected grounds may be relevant to the full range of its functions. Additionally, there is a real risk that less popular issues may never be a priority for authorities which could make a real difference to people's lives.

The EHRC recommended further discussion about whether any specific duties are necessary to make sure that the general equality duty is effective, and if so what such specific duties should require. It considereed that it will not be possible for public authorities to make real progress towards equality for employees or for their services or other functions without reliable, objective data on their current performance. The EHRC noted that the main recommendation from a recent review of section 75 of the Northern Ireland Act 1998, under which the equality duty on public authorities is rigidly process-led, was for the Equality Commission for Northern Ireland and public authorities to have a greater focus on measurable outcomes in relation to promoting equality of opportunity and good relations, under an unchanged section 75.

The EHRC further recommended that a new equality act should include a separate statutory requirement for public service inspectorates to audit or inspect public authorities' compliance with their equality duties.

The new equality act should also require public authorities to incorporate equality considerations into all aspects of their procurement processes. This requirement would be complementary to the single equality duty, but could not be avoided by authorities that would prefer other priorities. There is now wide agreement that public procurement can be an extremely effective lever for change within the private sector.

For more, see pages 8-9 and 12-20 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

Former Disability Rights Commission

The DRC's views are in pages 43-63 of A Framework for Fairness Response (on DRC website).

The DRC agreed that there should be a single streamlined duty, which should also extend to the newer grounds of discrimination.

Unlike the Green Paper proposals, however, the DRC believed that the present general and specific duties should be retained, and modified to strengthen them and make them more clear. The DRC was particularly concerned that under the proposals authorities might not have to 'mainstream' equality, ie to consider it in all their activities. The DRC supported a requirement to set equality objectives as proposed in the Green Paper, but not at the expense of requiring authorities to mainstream. Dangers to be guarded against included neglecting the pressing problems of 'unpopular' groups', and the authority limiting its actions to those which relate to the objectives.

The DRC also proposed changes in the wording of the general duty to strengthen it, eg to clarify that the requirement to give due regard to equality requires action to be taken.

The DRC considered that the arrangements which would take the place of publishing equality schemes are "a recipe for greater confusion and weaker activity". They would be far harder to enforce and far harder for disabled people to use to hold authorities to account. The DRC pointed out that the present Disability Equality Duty is already designed to allow considerable scope for flexibility.

The Government was proposing that only the EHRC would be able to take enforcement action. The DRC considered that interested parties should not be deprived of the right to challenge a public authority decision on the basis of the public sector duty.

There should be a clear legislative statement spelling out what is required of inspectorates. When they assess the quality of an authority's services they should, as an integral part of that assessment, consider whether those services give 'due regard to' equality – in other words whether they comply with the general duty.

As regards procurement, public authorities are not currently meeting their equality obligations, despite the three Commissions publishing detailed guidance. Clear direction must be provided through either primary legislation or in supporting regulations on how public bodies should embed equality into their procurement practice.

Views on private sector duty

A general equality duty on the private sector is not proposed in the Government Green Paper.

Equality and Human Rights Commission - proposals for 'light touch' regulation

The EHRC points out that some 80 per cent of the British workforce is employed by the private sector, and with the continuing trend of introducing the private market into the provision of public services, this percentage is only likely to increase. Many businesses - predominantly large ones - have embedded procedures in place, not only to avoid unlawful discrimination but to promote equality of opportunity within their workforces. Regrettably, this approach has not been adopted by the majority of private sector employers.

The EHRC proposes 'light touch' regulation in the form of business self portraits and self-improvement plans for the private sector. The scheme relies wholly on each employer determining for themselves what action, if any, they need to take. The self portrait would require an employer to look at their employment practices objectively, eg monitoring the composition of the workforce. How this is done should be determined by each employer in consultation with their trade unions and employees. A business self improvement plan would require an employer to use what they have learned from the self portrait to plan with employees and unions what steps it proposes to take to improve representation and to comply with equality legislation in relation to all the protected groups. The data from the self portrait would be a solid basis for positive action measures.

The self portrait should be updated annually. The self-improvement plan should be reviewed and revised, if necessary, every three years; in the intervening years, some minor changes to the plan might become appropriate in the light of up-to-date monitoring data. The self-improvement plan and data or summary of data from the self portrait should be published, or made easily accessible to eg the workforce and shareholders. Implementation could be phased over a number of years on the basis of the size of the employer, beginning with employers having more than 250 employees. The first stage of the duty should not come into force until some time after the EHRC has published relevant guidance.

Non-compliance with these requirements would not in itself make an employer liable to legal proceedings. However, compliance or non-compliance as well as the data collected in self portraits and the contents of self-improvement plans would be admissible as evidence in any proceedings, and should be taken into account by a court or tribunal in any case in which they appear to the court or tribunal to be relevant.

For more, see pages 20-27 of the EHRC's 2007 Discrimination Law Review response (link to Word doc on EHRC website).

It seems that the Government is not adopting these proposals but wants an optional 'kite-mark'.

Disability Rights Commission

The DRC recommended that there should be a positive private sector duty, though detailed consideration is needed as to what form it should take. Small and medium business should not be subject to a duty to promote equality. (A Framework for Fairness Response (on DRC website), pages 63-67)

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