The Equality Act: what PCTs need to know
1. Extending equality 2. The public sector equality duty 3. Recruitment and equal pay 4. Age discrimination 5. Socio-economic duty 6. Disability discrimination
1. Extending equality For a while now, it’s been unlawful when providing a service to discriminate against people based on their: Ærace Æsexual orientation Ægender Ægender reassignment Ædisability Æreligion/belief The Equality Act also makes it illegal to discriminate against people based on their age and when they’re pregnant/have children. For more information about age discrimination, see the section below. Here are some of the other major changes: Pregnancy/maternity
→ from October 2010 it will be unlawful to discriminate against a woman because of her pregnancy. It will also be unlawful to discriminate against a woman who is breastfeeding in public → there are exceptions to this: for example, you could discriminate in providing a service if you felt there was a health and safety risk involved. In such a case, though, you would be expected to see if alternative provision could be made. 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 scheme → train staff in good equalities practice → monitor the impact of your policy → consult with staff and users on new policies → review your disciplinary, grievance, and recruitment policies
→ 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. Positive action → the Act makes it clear that PCTs can take action to meet the needs of disadvantaged groups. So, for example, a PCT might devise an advertising campaign targeted specifically at young people if research shows key health messages were not getting through to them. → 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.
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 PCTs 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 PCTs will have to set out a series of equality objectives. In deciding which objectives to pursue, PCTs will have to consult with relevant stakeholders. There is no requirement to cover all equality groups. Procurement PCTs will have to state how they will use public procurement as a way to achieve their equality objectives. If it’s proportionate, PCTs will also have to consider equality-related criteria when awarding contracts. Finally, they will have to consider negotiating equalityrelated 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: PCTs 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. Age discrimination → the Equality Act outlaws unjustifiable age discrimination against people aged 18 and over in the provision of services.
→ however, beneficial age-based treatment will still continue (eg free bus passes for over-60s, targeting screening for certain illnesses, etc)
→ obviously, the provisions outlawing age discrimination have far-reaching consequences for healthcare providers, so 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 after consultation with health care providers.
5. Socio-economic duty → the Equality Act recognises that inequality does not just come from discrimination based on race, gender, disability or any other traditional equality group. Even today, the effects of class play a huge role in determining people’s life chances.
→ the duty says: an authority, when taking decisions of a strategic nature, must have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage What does this mean? → ‘decisions of a strategic nature’: for PCTs, ‘strategic’ decisions are obviously decisions relating to its Strategic Plan, but will probably also include high level commissioning decisions and decisions made in partnership with other agencies (such as local area agreements and Joint Strategic Needs Assessments). → ‘due regard’: this means giving weight to something in proportion to its relevance
→ ‘inequalities of outcome’: these are inequalities in income, housing, health, education, employment, crime rates, etc that are associated with socio-economic disadvantage. They can be about material things (number of police in an area) or life chances (unemployment) → ‘socio-economic disadvantage’: broadly, disadvantaged stemming from poverty and social mobility
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 Act doesn’t specify the day-to-day activities in question, which is different from the previous definition which looked at people’s capacity to do things from a proscribed list. 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 staff have an ongoing relationship with a disabled person – whether it’s a weekly catch up at a clinic or a monthly hospital appointment – you’ll be expected to take steps to find out if a person has a disability. 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.
someone working at Jobcentre Plus refuses to interview a potential JSA applicant because she’s swearing. However, her swearing is a result of having Tourette syndrome. Even though the employee is applying the principle to everyone equally, he may be discriminating against the applicant 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. Reasonable adjustments There have been some changes/clarifications to the reasonable adjustments 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. In fact, failure to anticipate the need for an adjustment may mean that it’s too late to comply with the duty when the time comes. To stay ahead of the game, the EHRC suggests PCTs: → 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
What happens 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/ Government Equalities Office (2010) The Equality Bill: Duty To Reduce Socio-Economic Inequalities. Available at: www.equalities.gov.uk/publications_and_research/publications 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
reducing health inequalities procurement
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 effectively analyse data to reach impactful strategic decisions? how does this align with the data you’re already collecting? Ð
how can you give staff the skills to look beyond group identities to ascertain the needs and entitlements of the individual?
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.
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