The PSED and Positive Action Aileen McColgan, Matrix

The Statutory Equality Needs: Giving Regard Where it is Due

“it is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities” Sir William MacPherson Purpose and History

From restitution to mainstreaming From tort model to public law duty Pre-emptive duty of consideration From avoiding to discrimination to promoting equality A new approach to equality

S149 Equality Act 2010 (1) A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Protected characteristics Age Disability Gender reassignment Pregnancy and maternity Race Religion or belief Sex Sexual orientation

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding.

General principles from the caselaw (1) Decision makers must be aware of their “due regard” duties: –Kaur & Shah v Ealing LBC [2008] EWHC 2062 (Admin) –Domb v Hammersmith and Fulham LBC [2009] EWCA 941 –Chavda v London Borough of Harrow [2007] EWHC 3064 (Admin) –Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; –Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); –Brooke v Secretary of State for Justice [2009] EWHC 1396 (Admin)

Principles (2) “Due regard” is regard that is appropriate in all the circumstances – proportionality is the key The duty concerns the decision making process – it does not dictate the outcome. The duty must be exercised with rigour and with an open mind

Principles (3) Timing: must be fulfilled before and at the time of the decision A continuing duty The need for an EIA?

When should an EIA be carried out? Not every policy needs one: screening Key concept is relevance Who is it likely to affect and in what way? Are any of the equality strands likely to be relevant?

Key steps in an EIA Identify what equality strands the policy might affect What evidence already exists about potential impact? What further evidence is needed? Consultation – Rahman v Birmingham City Council [2011] EWHC 944 (Admin): 1.Undertaken at a time when proposals are still at a formative stage; 2.Sufficient reasons must be provided to permit those intelligent consideration and response; 3.Adequate time must be given; 4.Product of consultation must be conscientiously taken into account when the ultimate decision is taken. R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168.

Assessing the impact – the hard part What are the main findings – do they reveal any issues relevant to the equality strands. For example... Could outcome of policy differ according to people’s ethnic group, gender, disability, sex etc Is there evidence of higher/lower uptake of the service/benefit among different groups? If so, or if different impacts on different groups, is that consistent with policy objective? Could policy disadvantage people from one or more groups? If there is differential impact that disadvantages one group, how can that impact be minimised consistent with the need to take into account overall policy objectives, which may include cost savings. Do effects amount to unlawful discrimination? Does policy promote equality of opportunity? If not, could it be changed to do so? Does policy foster good relations between people of different groups? If not, could it do so?

And finally: some basic truths EIAs are not an end in themselves – they are a way of showing that due regard has been paid to the general duties. EIAs should be an integral part of policy development and review, not a one-off or separate exercise. EIAs are not just about addressing discrimination or adverse impact; they should also positively promote equal opportunities, improved access, participation in public life and good relations. A policy should be impact-assessed if it is relevant to equality, with the most relevant policies assessed first and most thoroughly. The quality of an EIA is not measured by its page count but by the quality of the analysis, the action taken as a result and the outcomes achieved through implementation. The time and effort involved should be in proportion to the relevance of the policy. Without good evidence, a good EIA will be difficult to achieve. Lack of data is never an excuse for not assessing impact – some data will almost always be available and where data isn’t available it must be actively gathered. The information and insights that can be gained from involvement and consultation are essential, and involvement and consultation should also usually be carried out as part of the main policy development process. EIAs should always include an action plan. EIAs must always inform the final decision on a policy. Unless your policy is already perfect for equality (which is highly unlikely), an EIA should lead to policy change.

Positive Action

Positive discrimination: the default position It is unlawful to: treat someone less favourably because of a protected characteristic treat someone more favourably because of a protected characteristic Exceptions: Disability Age Political parties

‘Positive action’: the general idea ‘the Act does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted at particular groups, including training to enable them to gain employment, or health services to address their needs.’ Explanatory notes

Positive action is voluntary S.158 Positive actions: general S.159 Positive actions: recruitment and promotion

Positive actions: general If P reasonably thinks people with a protected characteristic: suffer a disadvantage connected to a protected characteristic have needs which are different from others participate in disproportionately low numbers in an activity ‘some indication or evidence will be required to show that one of these statutory conditions applies. It does not, however, need to be sophisticated data or research.’ Employment Code of Practice

Then P can take any action which is a proportionate means of achieving the aim of addressing one or more of those issues Proportionality involves ‘the balancing of competing relevant factors’ Is the action an appropriate way to achieve the stated aim? Is the action reasonably necessary to achieve the aim – would it be possible to achieve the aim as effectively by other actions that are less likely to result in less favourable treatment of others?

Examples Police: under-reporting of anti-Semitic crime; evidence of lack of trust within Jewish community Positive action: team dedicated to anti-Semitic crime Positive action: dedicated reporting points for anti-Semitic crime British Judo Association: disproportionately low number of women competitors Positive action: offer twice as much prize money to women Positive action: dedicated advertising campaign aimed at women Positive action: special offers on training courses for women

Positive action: recruitment/promotion Differences: Does not include positive action to address ‘different needs’ The person treated more favourably must be ‘as qualified’ as the person treated less favourably’ ‘a judgment based on the criteria the employer uses to establish who is best for the job’ Explanatory Notes The employer may not have ‘a policy of treating persons who share the protected characteristic more favourably’ ‘each case must be considered on its merits’ Explanatory Notes

EU law ‘as a derogation from an individual right laid down in the Directive [these kinds of provisions] must be interpreted strictly’ (Kalanke) ‘the Directive precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are underrepresented.’ (Kalanke)

‘A measure which is intended to give priority in promotion to women in sectors of the public service where they are under- represented must be regarded as compatible with Community law if it does not automatically and unconditionally give priority to women when men and women are equally qualified, and the candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates.’ (Badeck)

Examples A solicitor’s firm has disproportionately few women partners. it decides to interview all female applicants. having concluded that a female and male candidate were both equally qualified for partnership, it decides to offer the role to the female candidate An employer has very few employees over the age of 50 it has an open day specifically for older candidates it decides to restrict applications for a new vacancy to candidates over 50 it states on its advertising that it specifically encourages applications from candidates over 50

Conclusion A valuable opportunity to address disadvantages But caution: Burden of proof? Objective assessment by court/tribunal If action does not meet the conditions, it will probably be unlawful discrimination

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