The Equality Act: what education providers need to know
1. Extending equality 2. The public sector equality duty 3. Recruitment and equal pay 4. Positive action 5. Gender reassignment 6. Disability discrimination
1. Extending equality… Most of this guide is about what’s new in the Act. However, this particular section explains major changes with regards to the scope and definition of discrimination, and for clarity it goes over what is, in many instances, already the case. What’s covered by discrimination? Schools, colleges, and universities cannot discriminate against a pupil or student: → in the way they provide education → by excluding the student → in the way they offer access to a benefit, → by subjecting the student to any other facility or service detriment → by not providing education for that student Education providers also have to ensure that their admissions policies are fair and nondiscriminatory. The grounds for discrimination In doing any of the above, you can not discriminate against a student or prospective student on the grounds of their: → race → sexual orientation → gender → gender reassignment → disability → religion/belief The Equality Act also makes it illegal to discriminate against someone based on whether they’re pregnant/have children. Additionally, FE and HE institutions cannot discriminate against people on the basis of age (over-18s only). Because the provisions outlawing age discrimination have far-reaching consequences, the age-specific parts of the Equality Act won’t come into force until 2012 to give public bodies time to prepare. Guidance will be published shortly by the Equality and Human Rights Commission. Carers → from October 2010 it will also be unlawful to discriminate against carers. This new provision means that, if someone met the necessary requirements, an employer couldn’t refuse to promote them because they took time off to care for an older relative or someone with a disability. (The same provision also applies to people who are related to someone with a disability.) Liability As an employer, a service provider is liable for discrimination committed by its employees, unless it’s taken reasonable steps to stop such acts occurring. The Act doesn’t define what reasonable steps are. However, in its draft Code of Practice on the delivery of public services, the EHRC states that if organisations do most of the following, they are “more likely to be able to comply with their duties under the Act” and prevent their staff from discriminating: → create and communicate an equality → consult with staff and users on new scheme policies → train staff in good equalities practice → review your disciplinary, grievance, and recruitment policies → monitor the impact of your policy Harassment → as an employer, you are also liable for harassment your staff might face from, say, the
general public. In this case, if a member of staff reports that they’ve been harassed twice or more it’s your responsibility to take reasonable steps to stop this happening again.
www.brap.org.uk Exceptions → single-sex and faith-based schools are still able to ‘discriminate’ in terms of admissions. However, they are still prohibited from discriminating on any other ground, including sexual orientation. → the requirement for schools in England and Wales to undertake broadly Christian acts of worship is not affected by the provisions in the Act. Parents can still remove their children from collective worship. Schools are also free to organise or participate in other religious festivals. → nothing in the Act has an effect on the content of an organisation’s curriculum.
2. The public sector equality duty → a new public sector equality duty will replace the old ones on race, gender, and disability. The new duty will cover all the groups of race, gender, disability, age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment at the same time. The general duties will be to:
→ eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act → advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it → foster good relations between persons who share a relevant protected characteristics and persons who do not share it
→ this new duty won’t come into force until April 2011. The EHRC will produce guidance on the duty by December 2010, so we’ll have more information about what it will mean in practical terms then. (In the meantime, it’s important you meet the existing requirements.)
→ bearing in mind that the details are still to be confirmed, this is what the public sector equality duty looks like at the moment: Equality schemes there are no requirements for education providers to devise and produce an equality scheme (however, arguably, delivering on public duties will require schemes of this type and details of specific duties have yet to be published. Also, see the section above.) Mainstreamed equality objectives as part of their core business planning education providers will have to set out a series of equality objectives. In deciding which objectives to pursue, authorities will have to consult with relevant stakeholders. There is no requirement to cover all equality groups. Procurement education providers will have to state how they will use public procurement as a way to achieve their equality objectives. If it’s proportionate, schools, colleges, and universities will also have to consider equality-related criteria when awarding contracts. Finally, they will have to consider negotiating equality-related conditions into contracts (eg, including requirements about apprenticeships or traineeships being offered to people from under-represented groups).
3. Recruitment and equal pay → the gender pay gap: all public bodies employing 150 or more staff will have to publish their gender pay gap. This is one of the specific duties of the public sector equality duty. As stated above, details surrounding the specific duties are yet to be finalised, but guidance is expected to be published soon.
→ employment gaps: education providers will probably have to report on their ethnic minority and disability employment rates. As with gender pay gap reporting, the details for this are yet to be finalised.
→ positive action: the Equality Act extends the scope of what positive action means so that employers can take into account underrepresented or disadvantaged backgrounds when choosing people for recruitment or promotion. There are two conditions to this: → the candidates have to be equally qualified → the organisation can’t have a general policy to do this in every case Employers can use this provision if they ‘reasonably’ believe the person in question suffers disadvantage connected with one of the equality groups mentioned above. Positive action is different from positive discrimination. This proposal will not allow organisations to hire people for jobs if there are other, more qualified people. Employment quotas are illegal and will remain so.
→ secrecy clauses: the Act bans clauses in contracts that stops colleagues revealing their pay → health questionnaires: the Act makes it making it unlawful to ask job applicants disability and health questions before job offers (except in certain circumstances, eg with driving jobs). You can still ask candidates if you need to make special requirements for job interviews
4. Positive action → as well as the provisions for positive action in employment (see section above), the Act also makes it clear that public bodies can take action to meet the needs of disadvantaged groups. So, for example, a school could run supplementary maths classes exclusively for white male pupils if it’s identified that they’re underperforming at maths. → positive action – things like providing additional or bespoke services – are only permitted if they are proportionate to the aim they are meant to achieve. → positive action isn’t a requirement: it’s an option you might want to use to achieve fairer outcomes.
5. Gender reassignment → the Equality Act has a looser definition of gender reassignment than previous, more
‘medicalised’ interpretations. Now, a person is protected by law if they are proposing to undergo, are undergoing, or have undergone a process to reassign their sex. This could be by undergoing a medical operation or could simply be by changing the way they dress.
www.brap.org.uk → under this definition, a pupil who announced their intention to live as the opposite gender or
who modified their dress would be classed as ‘transsexual’. As an education provider, you would have a responsibility to protect the pupil from discrimination by teachers and lecturers. → equally, a staff member who announced that they intended undergoing a process of gender
reassignment would be protected. As with a lot of the Act, details of what this means in practice are yet to be finalised (through guidance from the Equality and Human Rights Commission). → it’s also important to note that people can be discriminated against because of a perception
that they are undergoing or have undergone gender reassignment. This may have implications for your organisation’s harassment policies.
6. Disability discrimination Learn the lingo… The Act changes the definition of disability slightly so it includes an impairment that has a ‘substantial’ (more than minor or trivial) and long-term effect on a person's ability to carry out normal day-to-day activities. The previous definition looked at people’s capacity to do things from a proscribed list, so this new definition is more open, flexible, and potentially wider ranging. Understanding users → under the Act, if you discriminate against a disabled person, it’s not enough to say you didn’t know they had the disability in question. You must both show that you didn’t know about the disability and that you couldn’t reasonably have been expected to know about it. This means that as a service provider you have to take reasonable steps to find out if a user has a disability. What this means in practice will depend on the particular situation – sometimes it will just mean talking to the person involved. However, where organisations have an ongoing relationship with a customer, they are expected to find out if that person has a disability. In practice, this may involve conducting surveys of pupils and students. Reasonable adjustments There have been some changes/clarifications to the reasonable adjustments education providers – as employers and service providers – should make for disabled people: → reasonable adjustments now include reasonable steps to provide information in accessible formats, when the way information is provided would otherwise put disabled people at a substantial disadvantage (this includes things like special equipment, large print format, etc) → the costs of reasonable adjustments can not be passed on to the disabled person → the duty to make reasonable adjustments is anticipatory. This means that you shouldn’t wait for a disabled person to use your service before you start thinking about adjustments. Not only is it not good practice to wait until someone’s excluded from your service before you make reasonable adjustments, but under the Equality Act it may be unlawful too. To stay ahead of the game, the EHRC suggests you: → regularly review whether services are accessible to disabled people → carry out and act on the results of an access audit carried out by a suitably qualified person → provide regular training to staff
www.brap.org.uk Different and fair → due to recent rulings, the Act tries to make it clear that in some circumstances disabled people might have to be treated differently to ensure they receive ‘equal’ treatment. Here are a couple of examples that will hopefully make this clear. →
a nursery says it can’t admit a child because he isn’t toilet trained. In fact, he has Hirschprung’s disease, which means that he doesn’t have full bowel control. The refusal to admit the boy is not because of his disability itself; but he is experiencing detrimental treatment as a consequence of his disability.
a teacher refuses to talk to the parent of a pupil because she’s swearing. However, her swearing is a result of having Tourette syndrome. Even though the teacher is applying the principle to everyone equally, he may be discriminating against the parent because the behaviour directly results from her disability. EHRC (2009) Services, public functions and associations: Draft Statutory Code of Practice
In cases like these it’s important to remember that the unfavourable treatment can be justified if it’s a proportionate means of achieving a legitimate aim
What’s next? → July 2010 – guidance on the changes to employment; equal pay; and services, public functions and associations will be published → October 2010 – the main provisions concerning discrimination in service provision come into force → December 2010 – guidance on the public sector equality duty will be published → April 2011 – public sector equality duty comes into force → December 2011 – guidance on age discrimination published → April 2012 – provisions on age discrimination come into force For more information about the various topics covered in this guide, you may like to read: → The Equality Act 2010. Available at:
www.opsi.gov.uk/acts/acts2010/pdf/ukpga_20100015_en.pdf → Equality and Human Rights Commission (2009) Services, public functions and associations:
Draft Statutory Code of Practice. Available at: www.equalityhumanrights.com/legislativeframework/equality-bill/ → Equality and Human Rights Commission (2010) What the Equality Act 2010 means for you as
an education provider DRAFT. Available at: http://ehrcconsult.limehouse.co.uk/portal/equality_bill/educ_provider → Government Equalities Office (2010) Equality Bill: Making it work. Policy proposals for
specific duties. Available at www.equalities.gov.uk/publications_and_research/publications
How we can help When new legislation comes into force, it’s not uncommon for organisations to miss how it can be incorporated into their existing functions and responsibilities. The legislative requirements get tagged on almost as an afterthought, which leads to more work for staff and negates the potential for the changes to make a positive, substantial difference to the way the organisation operates. When you consider the Equality Act, then, it’s important to see how its requirements can be mainstreamed into other areas of development for your organisation. For example: Are you clear about the Act? How can you avoid it becoming another add-on measure? Ð
how do you engage with staff so they take ownership of equalities issues in the workplace?
how can you measure progress on equality? how can you demonstrate that outcomes are being improved for marginalised communities?
how can you demonstrate that your suppliers have met relevant equality criteria?
how can you give staff the skills to look beyond group identities to ascertain the needs and entitlements of the individual? Ð
When you have five minutes, check out this video where we discuss some of the implementation challenges of the Act in a bit more detail: www.brap.org.uk/equalityact. Alternatively call us on 0121 456 7400 to talk about these issues and see how we can help
Thinking about the requirements of the Act and reflecting on how these can add value to your existing services will make this legislation more meaningful. Perhaps you can tell we’re already working with a range of organisations to help them meet their responsibilities under the Act effectively and efficiently. If you would like further advice, guidance, or training, contact us at firstname.lastname@example.org or on 0121 456 7400.
brap | 9th Floor, Edgbaston House | Hagley Road | Birmingham | B16 8NH Email: email@example.com | Telephone: 0121 456 7401 | Fax: 0121 456 7419