Proposed changes on 'transparency'

This page outlines Government proposals on 'transparency' as regards disability in both the public and private sectors.

There are various national statistics on inequality, but do not know what the picture is by workplace. The Government says that transparency will highlight areas where we need to make progress. Plans are as follows:

Public sector employers to publish information

Public sector employers should publish clear information about their progress on important equality issues, including disability employment. 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.

The Government says that the Equality Bill includes powers for Ministers to require public bodies to report on equality issues. It anticipates that public bodies with over 150 employees will be required to publish annually details of their disability employment rate. (See page 31 of A Fairer Future (link to equalities.gov.uk), April 2009)

Public procurement

Public sector purchasing should be used to improve transparency in the private sector. 80% of people are employed in the private sector and 30% of British companies are contracted to the public sector. The existing equality duties already cover public procurement - in other words public authorities should consider taking into account a company's performance on equality when deciding who to contract to do work. However, the new equality duty is to clarify and strengthen existing requirements and give a greater focus on increasing transparency.

The Equality Bill makes it clear that public bodies can use procurement to drive equality (Schedule 26 of the Bill, amending Local Government Act 1988). It enables Ministers to make regulations setting out how public bodies should go about doing so (clause 149(2)). How the Government proposes to do this is set out in Chapter 5 of its January 2010 policy document :Equality Bill: Making it work Policy proposals for specific duties Policy Statement (link to pdf of equalities.gov.uk). There is also some interesting discussion of how the Government sees the rules working, with some examples, in the House of Lords Committee debate on the Equality Bill: from col 647 HL Hansard 9/2/10 (link to UK Parliament website).

Kite mark?

The Government said in Summer 2008 that it will work with others to develop a 'kite-mark' scheme for employers who are transparent about reporting their progress on equality, as a further means to encourage greater openness in the private sector. This proposal is not mentioned though in the April 2009 announcements on the Equality Bill, and it is not clear whether it has been shelved due to the recession.

The Government had said it believes that businesses "increasingly recognise the advantages they can gain from improving their performance on equality, so that they can attract and retain talent from the widest possible pool and tap into new markets. We therefore expect that performance on equality will increasingly be a matter which companies choose to report to their shareholders and stakeholders." The Government said it would review progress and, in the light of this, consider over the next five years using existing legislation for greater transparency in company reporting on equality.

Links:
The proposals were announced in summer 2008, following a consultation on the Equality Bill Green Paper held the previous year. The proposals on information and procurement were reiterated in the Equality Bill announcement in April 2009:
Equality Bill (April 2009) and, published with it, A Fairer Future (link to equalities.gov.uk)
Framework for a Fairer Future - The Equality Bill (link to equalities.gov.uk), June 2008
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

Previous proposals by equality commissions

These are now superseded by the Government proposals above.

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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