Unions and the public sector equality duty
Richard Arthur takes a look at what authorities have to do to stay within the law and suggests ways trade unions can engage with public bodies and hold them to account.
Although the Equality Act 2010 requires public authorities to comply with a new general duty to combat discrimination, it does not specify what they have to do to meet that obligation.
It does, however, stipulate certain steps that they have to take in order to comply with a series of “specific duties” also required under the Act.
What is required under the “specific duties”?
By 31 July 2011 (or 31 December for schools) and annually after that, public authorities must publish “sufficient information” to demonstrate compliance with the general duty, including:
• information on the effect that their policies and practices have had on employees, service users and others from protected groups
• evidence of the analysis undertaken to establish whether their policies and practices will (or have) furthered the three equality aims in the general duty
• details of the information used in that analysis
• details of engagement with people with an interest in the aims of the duty.
By 6 April 2012, and at least every four years after that, public authorities must also prepare and publish equality objectives.
The Equality and Human Rights Commission (EHRC) has published five guides for implementing the public sector equality duties, and will publish a statutory code of practice later in the year.
“The essential guide to the public sector equality duty” for public authorities stipulates the standards to which public authorities can be held in relation to the various categories of information, including information that has to be published by 31 July.
What can trade unions do?
Trade unions should identify as many public authority functions as possible that relate to the equality duty, and press for any information relevant to those functions to be published.
Where they know that the authority has more information, or are aware of oversights or errors in any information that has been published, they should require the authority to make whatever revisions are necessary.
They should retain and save all the information made available to them, whether formally published or not, in case it’s needed at a later stage.
In particular, unions should ask for evidence of any analyses that the authority has undertaken about their policies and practices to establish whether they further the three equality aims of the general duty.
They can then use that information in any subsequent legal proceedings or bargaining arrangements.
And they should be actively engaged in setting equalities objectives and determining how success (or otherwise) will be measured. Senior managers and board members should also be involved at the early stages of objective setting.
Objectives may include not only specific quantifiable targets, but also qualitative objectives such as addressing levels of dissatisfaction amongst protected groups.
The more objectives that can be framed as concrete steps to be taken, the better.
Unions should rely on the EHRC’s standards of engagement, which require authorities to ensure adequate resourcing, accessibility, influence and transparency, and long-term collaborative engagement when working to achieve the aims of the public sector equality duty.
What is required under the general duty?
The extent to which public authorities comply with their specific duties has a direct knock-on effect on the extent to which they comply with their general duty.
The general duty applies to all functions, so that it applies each time a public authority initiates or implements a policy or practice. It also applies to the public functions exercised by service providers on their behalf.
In considering each policy or practice, trade unions should require public authorities to adhere to the following standards endorsed by the EHRC:
• Those who exercise [its] functions (for example, its staff and leadership) are aware of the requirements of the equality duties. Compliance involves “a conscious approach and state of mind”. This means that decision-makers must be fully aware of the implications of the duty when making decisions about their policies and practices.
• The duty is complied with before and at the time that a particular policy is under consideration and a decision is taken.
• A public authority cannot satisfy the duty by justifying a decision after it has been taken.
• Consideration of the need to advance equality forms an integral part of the decision-making process. The duty must be exercised in such a way that it influences the final decision.
• Any third party exercising public functions on its behalf are required to comply with the duty, and must do so in practice. This is because the duty rests with the public authority even if they have delegated any functions to a third party.
• Regard is given to the need to advance equality when a policy is advanced or reviewed.
How are the equality duties enforced?
The EHRC has statutory powers to enforce both the general and specific duties, which allows it to undertake assessments under section 31 of the Equality Act as to whether a public authority has complied with them.
It can also issue compliance notices and enter into agreements under section 23 of the Act to develop and implement an action plan.
Unions may be able to challenge a public authority if it fails to comply with either equality duty by way of judicial review in the High Court. However, these challenges are likely to be very expensive and require specific authorisation from those with responsibility for legal budgets.
The time limits for making a judicial review application are also extremely onerous. An application has to be made as soon as is practicable and, in any event, within three months of the date of the decision complained of.
It is also worth bearing in mind that a union supporting a member’s individual claim for discrimination can rely on information published by a public authority as part of its compliance with the equality duties.
Conclusion
Trade unions have a prominent role to play in ensuring that the aims of the equality duties are achieved.
They should assert that prominence through existing bargaining procedures and hold public authorities to account, using the standards set by the EHRC.
Although not legally as powerful as the public sector equality duties they replace, the new duties may still give rise to opportunities for legal challenge.