Equality Act 2010 The Public Sector Equality Duty - how will it affect the third sector? Overview of where we are with legislation that came into force Oct 2010 Outline PSED – where key implications for VCS Guidance Neil Martin

Key provisions October 2010: Services & Public Functions Premises Employment Associations Education April 6th 2011: Public Sector Equality Duty Re-iterate that Act came into force in Oct 1010 NB employment does not include volunteering

Protected Characteristics services, public functions, employment Disability Gender reassignment Pregnancy & maternity Race Religion / belief Sex Sexual orientation Marriage & civil partnership – employment & vocational training Age – from 2012 Age (over 18 only & from 2012) but all ages covered by PSED The protected characteristic of age means a person belonging to a particular age group. This includes people of the same age and people of a particular range of ages. Eg ‘over 50s’ or ‘21 yr olds’. (current employment provisions remain) Disability Protection is provided where someone has a physical or mental impairment and this has a substantial and long term adverse effect on the person’s ability to carry out normal day to day activities. Gender reassignment Protection is provided where someone has proposed, started or completed a process to change their sex. It is clear that there is no requirement to be undergo medical supervision Marriage and civil partnership Protection from discrimination for being married or in a civil partnership is provided in employment and vocational training only. Pregnancy and maternity For all areas covered by the Act a woman is protected from unfavourable treatment because of pregnancy or has because she has given birth. Race ‘Race’ includes colour, nationality and ethnic or national origins. A racial group can also be made up of two or more distinct racial groups. Religion and Belief Meaning of religion Religion’ means any religion and includes a lack of religion. It is for the courts to determine what constitutes a religion. Meaning of belief Belief means any religious or philosophical belief and includes a lack of belief. Examples of philosophical beliefs include Humanism and Atheism. A belief need not include faith or worship of a God or Gods, but must affect how a person lives their life or perceives the world.

Prohibited Conduct Direct discrimination, including by association and perception Indirect discrimination Harassment Third party harassment Discrimination arising from disability Duty to make reasonable adjustments Direct Discrimination occurs where a person treats another less favourably because of a protected characteristic than they treat, or would treat, others. The new definition of direct discrimination also covers cases where discrimination occurs because of a victim’s association with someone with a particular protected characteristic, e.g. a parent or partner. Protection is also provided where someone is wrongly thought to have a particular protected characteristic, eg they are mistakenly believed to be gay, and are treated less favourably because of that belief. This intended application of the direct discrimination provision represents one of the most significant expansions of protection in the Equality Act Indirect discrimination arises when an unjustifiable provision, criterion or practice is applied to everyone, but it places people with a protected characteristic at a particular disadvantage. Eg a requirement that everyone must work full time would place women with child caring responsibilities at a particular disadvantage, the employer would need to be able to show that it was nevertheless a proportionate means of achieving a legitimate aim. Indirect discrimination now expressly covers all grounds except pregnancy and maternity, which would be dealt with as indirect sex discrimination. Pregnancy and maternity discrimination is defined in employment as unfavourable treatment of a woman because of her pregnancy - from the time she becomes pregnant to the end of her maternity leave ;or because of an illness suffered by her as a result of her pregnancy; or in connection with maternity leave. Pregnancy and maternity discrimination in all other areas covered by the Act is defined as unfavourable treatment of a woman because of her pregnancy; unfavourable treatment because she has given birth, including because she is breastfeeding. from birth to end of 26 weeks

Purpose of the equality duty Help public authorities to: Integrate equality & good relations into core business (design of policies/delivery of services). Develop services more appropriate to users & more cost-effective Increase productivity by building a more supportive working environment Draw on a wider range of talent & be more representative. Better informed decision-making & policy development (improving policy outcomes & satisfaction with services) NB Some similarities but different to current duties key to VCS holding public authorities to account

Protected characteristics -Public Sector Equality Duty Age Disability Pregnancy and maternity Religion or belief Race Sex Sexual orientation Gender reassignment Marriage and civil partnerships (but only for eliminating discrimination) Protected groups used in EHRC guidance Applies to all ages

Key elements of the duty Equality information Engagement Equality analysis Equality objectives No socio-economic duty

Key dates for the duty in England 6 April 2011: general & specific duties come into force 31 July 2011: specific duties require listed bodies (except schools) to publish equality information 31 December 2011: schools to publish equality information 6 April 2012: specific duties require listed bodies (including schools) to publish equality objectives

General equality duty In the exercise of their functions, public authorities must have due regard to the need to: Eliminate unlawful discrimination, harassment and victimisation Advance equality of opportunity Foster good relations Change in language – to consider & give weight to not ‘pay’ regard to Advance not promote Foster not promote NB age – not currently covered by discrimination provisions but all ages covered by PSED – use 2nd & 3rd arms

What this means Advancing equality: Remove or minimise disadvantages suffered by people with protected characteristics Take steps to meet the needs of people from protected groups (including taking account of a disability) Encourage protected groups to participate in public life. Fostering good relations: Tackle prejudice Promote understanding

Who the general duty applies to Public authorities listed in Schedule 19 of Act e.g. local authorities, schools, health bodies, police & government departments). Organisations who exercise public functions e.g. private/voluntary organisations carrying out public functions on behalf of a public authority. Carrying out public functions relevant to VCS – particularly with move to commissioning of services > demonstrate that can meet duties Sched 19 like RED Public functions like DED The Equality Act defines a public function as a function of a public nature for the purposes of the Human Rights Act 1998. - Eg securicor prisons / private company

Commissioning and procurement General duty will apply to procurement & commissioning by public authorities regardless of the value of the contract. No specific duty relating to procurement. Commission planning to publish a guide to equality and procurement – spring / summer 2011. Key aspect for VCS – move to commissioning & what need to do to demonstrate that meet duties Eg ALMOS covered (Weaver)

Specific duties Purpose is to help public authorities to comply with the general equality duty Complying with the specific duties is part of complying with the general equality duty, but is not sufficient in itself NB DRAFT REGS Not comparable to old duties but similar elements -

Who the specific duties apply to The specific duties apply to all public authorities listed in Schedule 1 of the specific duties regulations. This covers most (but not all) of the public authorities listed in Schedule 19 of the Equality Act. Engagement Information Equality Analysis Objectives

Equality information Under specific duties, publish sufficient information to demonstrate their compliance with the general equality duty (at least annually) Public authorities with under 150 employees: not required to publish workforce information need to collect workforce information for developing objectives & equality analysis of workforce policies. Transparency – hold public authorities to account Expect to publish when do / relevant See guidance

Sensitive equality information Where employees & service users are not ready to be asked about sexual orientation, gender reassignment or religion, develop a culture of trust to enable this to be collected in the future. Explain why information is being collected, what it will be used for, and how privacy will be protected. Analysing national or local research and engagement are useful for identifying key issues if monitoring is not possible. DPA rules apply Use all sources eg staff groups, national / local info & research, info from VCS orgs Can’t force people but must explain why – applies to VCS if applying for contracts etc Also PAs should use VCS to understand numbers

Engagement General duty requires public authorities to have a good evidence base for decision-making, and engagement is a key part of that information. Specific duties require information about engagement undertaken to be published, including when developing equality objectives. Specific duties don’t set out how or when engagement should be undertaken. Not consult & involve Very important & relevant to VCS, particularly newer protected groups and little info throughout processes Shouldn’t be engagement overload

Equality Analysis A key part of complying with general duty. Specific duties require publication of evidence of equality analysis undertaken and details of the information considered. Case law on the old duties still has relevance. e.g. equality analysis needs to be undertaken before decision-making and written records are needed. Current duties still apply until 6th April V similar to EIA but less process driven & tie in to business planning Look at all policies – eg when reviewing / revising Look at relevance and then impact – must say why if not an issue Hold public authorities to account – transparency > publish when done so relevant Spending cuts – relevant and useful tool (focus on issues) but doesn’t stop cuts Means of stopping direct discrimination

Equality objectives Authorities covered by the specific duties: Prepare and publish equality objectives. Publish objectives at least every 4 years (either individually or as part of another document). Consider the equality information that was published, before preparing equality objectives. Objectives must be specific and measureable Publish details of engagement undertaken when developing equality objectives. Set out how progress on objectives will be measured. Engage VCS throughout process and be transparent

Specific duties 1) Publish equality information: Publish sufficient information to demonstrate compliance with the general equality duty by 31 July 2011 (31 December 2011 for schools), then annually. Publish this in an accessible manner This shall include: The effect of policies on protected groups Evidence of equality analysis Details of information considered in equality analysis. Details of engagement undertaken No definition of accessible

Specific duties 2) Prepare and publish equality objectives Prepare & publish objectives to meet one or more aims of general duty by April 2012 Publish new objectives at least every four years Consider the published equality information before preparing objectives. Publish details of engagement undertaken when developing objectives Ensure the objectives are specific and measureable Set out how progress on objectives will be measured.

Monitoring and enforcement Commission responsible for monitoring and enforcing the equality duty Range of tools set out for the Commission under the Equality Act 2006 still apply Enforcement tools include: compliance notices judicial review section 31 assessments section 23 agreements legal interventions. Update public sector toolkit

Guidance Codes of Practice Employment Services, Public Functions and Associations Equal Pay Public Sector Equality Duties Non-Statutory Guidance For employers and workers For service providers and for service users Equality Act starter kit Guidance on the EHRC website covers the following situations: When you recruit someone to work for you Working hours and time off Pay and benefits Career development – training, development, promotion and transfer Managing people Dismissal, redundancy, retirement and after someone’s left Good practice: equality policies, equality training and monitoring Providing services, carrying out public functions or running an association

PSED Guidance Available now: The essential guide to the public sector equality duty Equality analysis and the equality duty Engagement and the equality duty Equality objectives and the equality duty Equality information and the equality duty To be produced: VCS specific guidance - Equality & Diversity Forum Code of Practice NB – based on draft regs EHRC to produce complementary guidance to EDF – possibly toolkit like Starter toolkit Update PSED compliance toolkit

Advice & Guidance Website: www.equalityhumanrights.com EHRC Helpline: Tel: 0845 6046610 Email: englandhelpline@equalityhumanrights.com Government Equalities Office: www.equalities.gov.uk