Equality duty review predictable
Labour & European Law Review Weekly Issue 337 18 September 2013
The outcome of the government review of the public sector equality duty (PSED), published last week, could have been scripted in advance, Thompsons says.
The review was initiated as part of the government’s so-called Red Tape Challenge to examine whether the duty was operating as intended. The steering group, made up of supporters and friends of the government and others whose views were well known in advance, concluded - predictably - that it is not.
It also found, however, as Thompsons said when the group issued a call for evidence earlier this year, that it was far too early to make any sensible analysis of the current version which only started to operate in April 2011. The steering group has therefore recommended that the government carries out a formal evaluation in three years’ time.
It also made a list of other recommendations which the government has said it will accept in full:
- The Equality and Human Rights Commission (EHRC) should produce clearer, shorter guidance setting out what is necessary for public bodies to comply with the duty.
- Regulators, inspectorates and relevant ombudsmen services should integrate the PSED into their core functions and collaborate closely with the EHRC with respect to compliance action.
- Public bodies should not collect diversity data unless it is necessary for them to do so. They must also ensure they adopt a proportionate approach to compliance and not seek to “gold plate”.
- Public bodies must reduce the burdens placed on small employers by removing Pre-Qualification Questionnaires (PQQs) for contracts below £100k and utilise the government’s core PQQ, which does not include equality requirements for contracts over this amount.
- Public bodies should not impose onerous or disproportionate requirements on contractors delivering services (particularly those with fewer than 50 employees) to provide equality data on workforce and service users. They should be challenged where their procurement processes create barriers for small businesses and charities.
- Public bodies must be proportionate in publishing information. Although the steering group could not agree on the effectiveness of the specific duties, the Chair’s view was that they are not serving their intended purpose and that the government should consider removing or modifying them, to which it has already agreed.
- Enforcement of the PSED needs to be proportionate and appropriate.
The public sector equality duty, which consists of a general duty and a number of specific duties, applies to public bodies such as local government, the NHS and those that carry out public functions. It was introduced to ensure that public bodies take account of equality when carrying out their day-to-day work.
Emma Game of Thompsons Solicitors said: “The chair of the steering group may as well have been a government spokesperson. He made no effort to hide his contempt for equality laws, referring to them in the foreword to the report as “unnecessary practices” which “burden” the private sector with “hours if not days of work by requests for information from the public sector”. It’s an old trick but a cynical one, create a furore, have people you can rely on to review the issue (although the group appears not to have gone as far as the chair would have liked) and then go along with the outcome.”