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Lobby your MP to save the General Equality Duty 

The General Duty in section 3 gives effect to the purposes of the Equality Act 2006, providing a framework for the EHRC to exercise its powers. In response to the 2011 government consultation ‘Building a fairer Britain: Reform of the Equality and Human Rights Commission’, which proposed a repeal of the duty, opponents of removing section 3 of the 2006 Act argued that to repeal the duty would be a catastrophic mistake and show a fundamental misunderstanding about its purpose. The ratio of respondents to this government consultation that were against the repeal of section 3 was nearly 6:1. 

As stated by Lord Lester of Herne Hill QC, it emphasised the importance of ensuring ‘that equality becomes better understood as a fundamental human right to be enjoyed together with other human rights, civil and political, and economic and social.’  

You'll find a link hosted by sister union PCS here along with a short video by Professor Sir Bob Hepple, Emeritus Master and Emeritus Professor of Law, explaining why Section 3 should not be repealed. Please take a minute and help ensure this vital piece of legislation is retained. 

Schools and the Public Sector Equality Duty.

On 5 April 2011 the Government brought into force the Public Sector Equality Duty, contained in section 149 of the Equality Act 2010, for public authorities. It is an important part of the Equality Act 2010.

The Equality Duty requires public authorities, including schools, to have due regard to the need to:

•  eliminate discrimination, harassment and victimisation;
• advance equality of opportunity; and
• foster good relations between people that share a relevant protected characteristic and those who do not

It replaces the former race, disability and gender equalities duties with a single duty that applies to eight protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The PSED introduces secondary legislation in the form of specific duties. The specific duties require schools to:

• publish information to demonstrate compliance with the Equality Duty, at least annually; 
• prepare and publish one or more equality objective, at least every four years.

These specific duties apply to all local authority maintained schools, including academies and Trust schools and applies to all of its functions including employment policies and decisions.  Consideration, therefore needs to be given to proposed changes to school staff terms and conditions or workforce restructuring.  The duty also applies to decisions made as a result of budget cuts. This means that public authorities and schools need to consider the impact of proposed cuts on staff that share different protected characteristics.  Where a negative impact has been identified on a particular group(s) consideration needs to be given to alternative actions to avoid unlawful discrimination.

 

Schools had until 6 April 2012 to publish their initial information and first set of objectives. They will then need to update the published information at least annually and to publish objectives at least once every four years. Schools Representatives and Equality Officers should check that their school has published their information and objectives and challenge them if they have not produced the information.

What information should schools produce?

Paragraph 5.12 on page 23 of the Department for Education (DfE) advice says:

The Equality Duty is proportionate, and complying with it will look different for organisations of different sizes and with different levels of resources. Therefore, in terms of publishing information and setting equality objectives, the requirements of the duty will not be the same for a small primary school as they are for a large secondary school ...

Paragraph 5.25 on page 25 of the DfE advice is headed 'How to publish information'. It explains that:

It will be up to schools themselves to decide in what format they publish equality information. For most schools, the simplest approach may be to set up an equalities page on their website where all this information is present or links to it are available.

The regulations are not prescriptive and it will be entirely up to schools to decide how they publish the information, so long as it is accessible to those members of the school community and public who want to see it.

Pages 23 and 24 of the DfE advice look at the type of information that will be relevant to showing how the three main elements of the PSED are being addressed:

Eliminating discrimination and other conduct that is prohibited by the Equality Act 2010

Schools could publish:

• Copies of policies, for example the behaviour policy or anti-bullying policy, or the recruitment or pay policies, where the importance of avoiding discrimination and other prohibited conduct is expressly noted

• A note of a meeting of staff or of governors, where they are reminded of their responsibilities under the Equality Act 2010

• Evidence of staff training on the Equality Act 2010

• A note of how the school monitors equality issues

Advancing equality of opportunity between people who share a protected characteristic and people who do not share it

Schools could publish:

• Attainment data which shows how pupils with different characteristics are performing
• Information about work done in response to analysis of data in order, for example, to:

  • Support disabled children

  • Help boys improve their performance in writing

  • Help girls catch up in science

  • Boost the English language skills of bi-lingual children from certain minority ethnic groups

Fostering good relations across all characteristics, between people who share a protected characteristic and people who do not share it

Schools could publish evidence relating to:

• Aspects of the curriculum that promote tolerance and friendship, or which share understanding of a range of religions or cultures
• Assemblies dealing with relevant issues
• Involvement with the local communities
• Twinning arrangements with other schools which enable pupils to meet and exchange experiences with children from different backgrounds
• Initiatives to deal with tensions between different groups of pupils within the school itself

Preparing equality objectives

Paragraph 5.26 on page 25 of the DfE advice explains that: 

Schools are free to choose the equality objectives that best suit their individual circumstances and contribute to the welfare of their pupils and the school community. Objectives ... should be used as a tool to help improve the school experience of a range of different pupils.

A school should set as many objectives as it believes are appropriate to its size and circumstances; the objectives should fit the school’s needs and be achievable.

Some examples of equality objectives are given, such as:

• To narrow the gap in performance of disabled pupils
• To reduce the number of homophobic incidents
• To encourage girls to consider non-stereotyped career options

Schools do not have to write objectives for each protected characteristic.

School Representatives and Equality Officers should be involved in the process of setting equality objectives.

Devolved Nations

Although the Equality Duty applies to the whole of Great Britain, Scotland and Wales are able to set their own specific duties. The specific duties in Wales came into force on 6 April 2011 and are much more comprehensive than the ones applicable in England. The specific duties applicable to Scottish public bodies are still being decided.

Equality Schemes

There is no longer a specific duty to prepare and publish a written equality scheme.  (Although the Welsh specific duties require a Strategic Equality Plan to be made, which is similar to an equality scheme.) However, many public authorities found the process of developing and publishing equality schemes useful because it required them to review all of their functions of relevance to equality and to set out how they were going to have due regard to equality. Where public authorities have published equality schemes in the past, which have enabled good involvement and dialogue with affected groups, NASUWT Representatives should urge them to keep doing so.

Equality Impact Assessments

Union Representatives should use the specific duties to hold schools accountable. Schools need to consciously think about the Equality Duty as part of the decision making process. The NASUWT believes that the best way of doing this is for schools to carry out an Equality Impact Assessment (EIA). However, the Equality Duty does not impose a legal requirement to conduct and EIA. Despite that, carrying out an EIA will help public bodies demonstrate that they considered the aims of the Equality Duty when making decisions. A policy, decision or a service delivery initiative should ideally be assessed to ensure that it is in line with the Equality Duty. This involves systematically assessing the likely or actual effects of policies, looking for opportunities to promote equality as well as negative or adverse impacts. If any negative or adverse impacts amount to unlawful discrimination of harassment, they must be removed. 

NASUWT Representatives should continue to encourage public authorities and schools to undertake EIAs as a basic way of checking that the duty is being complied with. The Equality and Human Rights Commission advise that public authorities should engage with trade unions at an early stage to identify priority areas for setting objectives. 

If you are told that a public authority no longer believes it has to do an EIA or has decided to stop doing EIAs then you should ask how the public authority intends to demonstrate that it has due regard.

The NASUWT has produced an EIA checklist (PDF-69K) to help Union Representatives and Equality Officers ensure that the employer is meeting their responsibilities.

Compliance 

The Equality and Human Rights Commission (EHRC) were intending to produce statutory Codes of Practice on the PSED and codes for the Further and Higher Education (FEHE) sector and schools.

However they have recently announced that they are no longer able to produce statutory guidance and will only produce draft non statutory Codes. These non statutory Codes will still give a formal, authoritative, and comprehensive legal interpretation of the PSED and education sections of the Act and will make it clear to everyone what the requirements of the legislation are.  

The FEHE and schools Codes underwent a full consultation in 2011 in the form of draft statutory Codes, and the EHRC intend to publish the revised versions as non statutory Codes shortly. The draft PSED non statutory codes will be published after Easter for review.

The NASUWT has condemned the Government’s decision not to proceed with statutory Codes on the grounds that ‘further statutory guidance may place too much of a burden on public bodies’. The Union believes that this is a deliberate cynical and ideological attempt to undermine the existing UK equality law. Rather than creating a regulatory burden, statutory codes have a valuable role to play in making clearer to everyone what is and is not needed in order to comply with the Equality Act. The NASUWT submitted motions to the TUC Women's and Young Worker's Conferences mandating the TUC to put pressure on the Government and the EHRC to make the codes statutory.

Enforcement

Failure to comply with the Public Sector Equality Duty can be challenged by means of an application for judicial review to the High Court. If can be brought by anyone with a sufficient interest in the case such as the EHRC, trade unions, NGOs, local campaigners or individual service users. If a judicial review action is successful, at best, it will result in a decision being quashed and sent back to the public authority to make it again have due regard to equality. Cases must be brought promptly and at least within three months of the action that is being challenged.

The Equality Act 2010

The Equality Act 2010 (new window) came into force on 1st October 2010. The Act brings disability, sex, race and other grounds of discrimination within one piece of legislation, and also makes changes to the law. The Act does not apply to Northern Ireland.

Over the last four decades discrimination legislation has played an important role in helping to make Britain a more equal society. However, the legislation was complex and, despite the progress that has been made, inequality and discrimination persist and progress on some issues has been stubbornly slow.

The Equality Act 2010 is intended to provide a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

The timetable for the implementation of the Act is as follows:

• October 2010: Main provisions now in force.
• April 2011: The public sector Equality Duty now in force.
• 2012: The ban on age discrimination in provision of goods, facilities, services and public functions.
• 2013: Private and voluntary sector gender pay transparency regulations (if required) and political parties publishing diversity data.
  

Provisions that came into force on 1 October 2010

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
• Changing the definition of gender reassignment, by removing the requirement for medical supervision.
• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.
• Clearer protection for breastfeeding mothers;
• Applying the European definition of indirect discrimination to all protected characteristics.
• Extending protection from indirect discrimination to disability.
• Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
• Applying the detriment model to victimisation protection (aligning with the approach in employment law).
• Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
• Extending protection from 3rd party harassment to all protected characteristics.
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
• Allowing claims for direct gender pay discrimination where there is no actual comparator.
• Making pay secrecy clauses unenforceable.
• Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment.
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.
• Harmonising provisions allowing voluntary positive action.

The TUC has produced a TUC Equality Act Briefing (new window).