Proposed changes on disability equality duty

The disability equality duty on public authorities is to become part of a single 'Public Sector Equality Duty'. Also the equality schemes currently produced by authorities will be replaced by different duties based on 'transparency' and measurable outcomes. These changes, made by the Equality Act 2010, are intended to come into force in April 2011 and 2012. An important consultation document on the new duty was issued in August 2010.

The existing separate equality duties on public authorities covering race, disability and gender are to be replaced by a single Public Sector Equality Duty (Equality Act 2010, s.149 onwards). This single Public Sector Equality Duty will also extend to gender reassignment, age, sexual orientation and religion or belief.

Much of the new Public Sector Equality Duty is expected to come into force in April 2011. I mention below what is to be delayed until April 2012.

General duty

As now, the Public Sector Equality Duty will have two parts. First there is the 'general duty', which will oblige public authorities to have due regard to the need to:

eliminate unlawful discrimination, harassment, victimisation;
advance equality of opportunity between those covered by the Equality Act and those not covered, e.g. between disabled and non-disabled people;
foster good relations between these groups.

S.156 Equality Act says that a failure in respect of a performance of the Public Sector Equality Duty does not confer a cause of action at private law. However, the Government has confirmed (e.g. in explanatory notes published with the Equality Bill) 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. This is important given the tough line the courts have been taking on the general duty.

Specific duties

The second part of the Public Sector Equality Duty is the 'specific' duties, designed to support performance of the general duty. These will be set out in regulations. In August 2010 the Government issued a consultation document setting out its proposals for the new specific duties: The public sector Equality Duty: Promoting equality through transparency (link to equalities.gov.uk). The consultation closes on 10th November. Some key points are as follows:

The existing requirement to publish equality schemes is being abolished. The focus will be on measurable outcomes rather than processes.
The Coalition Government states its guiding principles as "freedom, fairness and responsibility". It has a "clear aim of replacing top-down interventions from the centre with local democratic accountability driven by transparency and decentralisation." Public authorities will "perform best if they are free from unnecessary red tape."
Transparency is important to enable public bodies to be judged by citizens. Therefore one specific duty will require publication of various equality-related information, as from April 2011 (for example on the workforce, see below). The Equality and Human Rights Commission working with the Public Sector Transparency Board will set out standard requirements for the equality data to be published by different types of public bodies.
From one year later, April 2012, public authorities will also have to publish one or more specific measurable objectives to achieve, stating how progress towards these objectives should be measured. Unlike Labour's proposals, there will be no duty to set out the steps the authority proposes to take to meet equality objectives.
There is to be no specific duty to engage with disabled people or other groups, but authorities will have to publish information on what engagement there has been.
The Government does not propose that Secretaries of State should set top-down targets or national equality priorities. Labour's plan had been that public bodies should have regard to national equality priorities from the Secretary of State when setting their equality objectives. (My comment: the absence of national priorities leaves less scope to remind authorities to consider setting objectives related to communication disabilities - including stammering - which have relatively little awarness and so may well get forgotten.)
Another change from Labour's proposals is that the duty on Secretary of States to report in relation to disability will be abolished.
The consultation document sets out which public authorities are to be subject to the general and specific duties.

News item: Public bodies to be given more freedom in how they promote equality (link to pinknews.co.uk), 19/08/10.

Workforce disability information

One specific duty will be a requirement on public sector employers with over 150 employees to publish data on equality in their workforces. This must be done at least annually.

An Equality and Human Rights Commission Code of Practice and guidance will set out the data to be published by different types of public bodies, and "we would expect this to include data on important inequalities such as the gender pay gap, the proportion of staff from ethnic minority communities and the distribution of disabled employees throughout an organisation's structure. (The public sector Equality Duty: Promoting equality through transparency (link to equalities.gov.uk))

The (Labour) Government said in Framework for a Fairer Future (link to equalities.gov.uk) in June 2008 - and this may well also for the Coalition's proposals - that it will be possible to see progress year by year within an authority and

see which authorities are making progress and learn lessons from them;
see which authorities are lagging behind; and
allow comparisons between similar authorities.

Procurement - promoting equality in the private sector

Although public bodies should already be taking equality into consideration when awarding contracts to the private sector, the Labour Government did not believe this happens as frequently or consistently as it could. It pointed out that 80% of people are employed in the private sector and 30% of British companies are contracted to the public sector.

The Equality Act makes clear that public bodies can use procurement to drive equality (Schedule 26, amending Local Government Act 1988). It also enables Ministers to make regulations setting out how public bodies should go about doing so (s.156). However the Coalition Government says in its August 2010 consultation document The public sector Equality Duty: Promoting equality through transparency (link to equalities.gov.uk):

5.21 The Equality Duty requires public bodies have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups across all their functions. We do not believe it is necessary to impose burdensome additional processes on public bodies telling them how to conduct their procurement activity: they will be judged on the outcomes that they deliver.

Some points from Parliament

House of Lords Committee on the Equality Act - January 2010

The Government accepted an amendment to provide that, in having due regard to the need to advance equality of opportunity, a public body must give consideration to the fact that meeting the needs of disabled people may, in particular, involve taking steps to take account of their disabilities. The Government recognised that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics, and had sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability equality duty. See from col 1490 HL Hansard 27/1/10 (link to UK Parliament website).

Ministerial comments on coverage of employment by private contractors

There was substantial debate in the House of Commons Equality Bill Committee about the new public equality duty provisions. I will just pick out one comment by the Minister on an issue under current law, namely whether private contractors are bound by the public equality duty in relations with their employees as well as their customers:

"I will now address the point that employment might be singled out as a function that should not be subject to the duty. It seems to us that employment is part and parcel of the way in which public functions are delivered, because it is difficult to deliver that if one cannot consider the technical abilities of the people one employs to do it. How could a private contractor be required to make arrangements for advancing equality in all the aspects of running a prison but not in relation to the people it employs or how it employs them? Employment functions have not been excluded from the current duties." (col 550, HC Public Bill Cttee, 30th June 2009 (link to UK Parliament website)).

Employment by private contractors was also considered in the House of Lords Committee: col 1500 HL Hansard 27 Jan 2010 (link to UK Parliament website). For example:

"In simple terms, employment will be caught where integral to the performance of a public function. For example, where a contractor runs a prison it will need to comply with the duty in relation to its employees working in the prison but not those involved in other work such as collecting cash from a bank."