EDC10D003
Title: Equality Act 2010 and Public Sector Equality Duty Author: Helen Murdoch - Equality and Diversity Manager Circulation: Equality and Diversity Committee – 28 February 2011 Agenda: EDC10A001
Status: Open Version: Final
EQUALITY ACT 2010 – SUMMARY OF KEY CHANGES IN PLACE AND FURTHER CHANGES FROM APRIL 2011
1.0 Timeline of recent and forthcoming changes in Equality Law
The Equality Act was passed on 8 April 2010. This main body of provisions was introduced in October 2010 and a further stage will be introduced on 6 April 2011. The main sections of the Equality Act 2010 relate to employment, equal pay, public functions and associations, and education (further and higher).
6 April 2011: the Public Sector Equality Duty (PSED) will replace current duties covering race, disability and gender. Dual discrimination protection will also be introduced at this point. Our duties under PSED are outlined at 4.0 below.
2012: the ban on age discrimination in the provision of goods, facilities, services and public functions will come into effect.
In addition: under separate legislation, the removal of the default retirement age (DRA) will begin in April 2011 with intermediary arrangements covering the period until 1 October 2011 when the DRA will finally become unlawful. Detail of this can be found in Document EDC10D006.
2.0 What does the Equality Act 2010 do? It:
reforms, harmonises, strengthens and replaces all existing equality legislation, including the Equal Pay Act 1970.
Streamlines 9 major Acts of Parliament and extensive secondary legislation; Creates greater parity of rights
Restructures the law;
Incorporates major pieces of tribunal case law; Increases powers of tribunals
Changes and tightens (some) definitions
3.0 What are the key aspects of the Act?
9 ‘protected characteristics’ are clearly defined: age, disability, gender, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sexual orientation;
Discrimination taking place on the grounds of the protected characteristics is unlawful;
A wider range of discrimination is now defined (for example, by association, by perception) and applies to all protected characteristics (unless clearly excepted under the Act);
‘Discrimination arising from disability’ is now also unlawful (see examples below);
The definition of disability has been ‘loosened’ so it is now easier to establish a disability – no diagnosis is needed, what is important is the impact of a condition on the day to day activities of an individual;
Enquiries about the health of applicants for work prior to making an offer or before including in a selection pool is now unlawful (other than in circumstances clearly defined by the Act);
Positive action was permissible before, in employment law, and in defined circumstances. It is now allowable for students;
The definition of gender reassignment has been rewritten to remove the requirement for people to be under medical supervision before being protected by the law;
Rights under maternity and pregnancy have been enhanced and in particular facilities for breast feeding mothers must be provided;
Care must be taken not to discriminate or victimize in the way recreational or training facilities are provided;
Some key requirements haven’t changed:
Direct and indirect discrimination, victimization and harassment continue to be recognized as unlawful in respect of all protected characteristics;
Duty to make reasonable adjustments for staff and students is still in place; Impact Assessment has been modified and is now ‘equality analysis’. This will
continue to be a statutory duty. 4.0 What’s next?
The Public Sector Equality Duty will be introduced (from 6 April 2011) to replace the three existing duties on disability, gender and race;
This Duty will include all protected characteristics and comprise ‘general’ duties explaining our broad range of requirements, with ‘specific’ duties to detail how to comply with some aspects of this;
PSED will continue the requirement and spirit of advancing equality and fostering good relations, removing discrimination, removing/minimizing disadvantage, meeting the needs of protected groups, promoting understanding and encouraging participation in public life.
4.1 The General Duty
Summarised, the General Equality Duty states we must have due regard to the need to:
Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
Advance equality of opportunity between people who share a protected characteristic and those who do not.
Foster good relations between people who share a protected characteristic and those who do not.
‘Due regard’ for advancing equality involves:
Removing or minimising disadvantages suffered by people due to their protected characteristics;
Taking steps to meet the needs of people from protected groups where these are different from the needs of other people;
Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
Also explicit in this is that meeting different needs involves taking steps to take account of disabled people’s disabilities. It describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. It also clearly states that compliance with the duty may involve treating some people more favourably than others.
4.2 The Specific Duties
As part of meeting the Specific Duties of the Act the University is required to develop and publish the following:
a) Equality Information
By 31 July 2011, we must publish sufficient information to demonstrate our compliance with our General Duties under the Equality Act 2010. The information must be published at least annually after that.
Published information must, particularly, include detail on the effect that our policies and practices have had on people who share a relevant protected characteristic. In this way we need to demonstrate the extent to which the aims of the general equality duty have been furthered for our employees and for others with an interest in the way we perform our functions as a University (e.g. students, visitors, local communities, external organisations).
We have to show:
Evidence of analysis we have undertaken to establish whether our policies and practices have (or would) further the aims of the general equality duty;
Details of the information we have considered in carrying out this analysis;
b) Equality Objectives
By 6 April 2012, prepare and publish equality objectives which will further one or more of the aims of the General Duties. We must publish details of the engagement (consultation) we undertake with those people who are considered to have an interest in furthering the aims of the General Duties.
The objectives must be specific and measurable and we must set out how progress will be measured.
When developing the objectives we must consider the information we published to meet our requirements under 1 above.
Information about the Equality Objectives must be published at least every four years. It must be published in a manner that is reasonably accessible to the public and can be published as part of another document.
The purpose of the Specific Duties is to help us comply with the General Equality Duty, by improving:
focus and transparency
of our activities in meeting the duty.
Complying with the Specific Duties is necessary, but in itself doesn’t cover the full range of requirements on us – we have to actively work to achieve the aims of the General Equality Duty across all University Functions.
5.0 How will the University of East Anglia meet the Public Sector Equality Duty?
5.1 Specific Duties - Equality Information
Current Guidance states the Equality and Human Rights Commission would expect to see:
Race, disability, gender, age breakdown and distribution of our workforce;
Indication of likely representation on sexual orientation and religion or belief, provided no individuals can be identified as a result;
An indication of any issues for transsexual staff; Gender pay gap information;
o Performance information relating to functions relevant to the Gender Equality Duty (e.g. attainment rates, retention rates, destination data);
o Access to ‘services’ (this might include courses, as well as services under Dean of Students or Information Services Directorate);
o Satisfaction with services;
The Equality and Diversity Manager has already started a process of annual reporting on equality profiles for staff and students. It is proposed this be developed to include the above information where additional elements are required to the existing format. Work is continuing with the Discoverer team and colleagues in Planning to create an Equality Management Information ‘pipeline’ so that profiles are available from admission or recruitment through all stages to destination or exit for both staff and students.
Working with the University’s Survey Officer, information from relevant existing and forthcoming surveys and focus group work, including the National Student Survey, will be gathered and used particularly as a key source of qualitative information. It is proposed that survey work collates or links to existing equality information of respondents where possible.
As a matter of best practice, the Annual Equality Report will also identify gaps in available information and summarise the work in hand to address this and expected completion dates. It is anticipated that top level, summary information will be available to publish on all the areas identified by the Commission in the next report which will be presented to the Equality and Diversity Committee on 7 June 2011. Along with the full report, a summary will be produced for primary use as a published document. Both will be presented to the Equality and Diversity Committee (EDC), Executive Team and Council for approval.
5.2 Specific Duties - Equality Objectives
Although objectives do not need to be ready until 6 April 2012, it is proposed to provide draft objectives for discussion and development at the next EDC in June 2011.
It is proposed to use the following existing resources as an initial basis for devising informed objectives:
National Student Survey Results;
Relevant available information from existing Surveys and internal research exercises;
The University’s Single Equality Action Plan;
The Annual Equality Report and any other relevant internal equality data Complaints, Discipline and Grievance data/information
Existing Equality Impact Assessments
Staff and student interest groups/networks (e.g. Staff and Student Pride groups, ResNet, Disabled Staff Network, Students and Trades Unions)
The Data Warehouse/Planning Office
It is proposed that once draft objectives are satisfactory to the Committee they be used as a basis for consultation exercises in late 2011/early 2012 so engagement can take place with staff, students and external stakeholders.
5.3. Equality Analysis
There has been a shift in emphasis on the duty that was previously known as Equality Impact Assessment. The University is now required to publish ‘equality analysis to establish whether its policies and practices further the aims of the duty’ (i.e. General Equality Duty).
The stated intention in this change is ‘to focus more attention on the quality of the analysis and how it is used in decision making, and less on the production of a document which some may have taken to be an end in itself’.
There is emphasis on real changes in practice resulting from the duty to ‘advance equality and foster good relations’. The equality duty now makes clear the need to remove or minimise disadvantage or to meet specific needs such as through providing services for particular groups.
The University must analyse the effect on equality for all of the protected characteristics and all aims of the General Equality Duty (see 4.1 above).
Equality analysis needs to start prior to policy development or at the early stages of review. It is not a one off exercise but is ongoing and cyclical and enables equality decisions to be taken into account before policy decisions are made. The Equality and Human Rights Commission (EHRC) have specifically warned against carrying out equality analysis at the end of the policy development process as this can result in legal challenge and there is now a history of a number of successful cases.
Under the new duty the University is not required to follow any specific methodology or template to undertake equality analysis but it must be able to show clearly it has satisfied the legal requirements by showing how it has considered the aims set out in the GED and how this has been taken account of in policy development or other related action. Current documentation will be reviewed to provide an optional structure for people to follow when carrying out this kind of analysis but a broader ‘free-style’ approach will be acceptable as long as the required aims can be shown to have been met.
Recommendation: it is recommended that every proposed or revised policy, submitted for Committee approval, contains a section clearly summarising how and the aims of the General Equality Duty have been considered during policy review/development and what equality analysis has been undertaken. (NB: This can also be done effectively where a very broad review is taking place across a particular function).
Full guidance to support this will be issued by the Equality and Diversity Manager along with revised documentation, training and a quick reference screencast by mid March 2011. Appendix 3 briefly outlines the information policy developers across the University will need to consider so the University is legally compliant and indicates that documentation needs to be kept as part of the Audit trail. It is proposed that Committee Chairs be specifically briefed as they will be key gatekeepers in this process.
Helen Murdoch
Appendix 1 The Equality Act 2010: ‘Extended scope and greater parity between protected characteristics’:
Some practical examples are given below to provide a feel for the range and scope of current provisions under the Equality Act:
Pregnancy and maternity:
The University cannot refuse an applicant entry, nor ask that a student leave a course because they are pregnant.
A student can’t be penalised if they miss an exam or coursework deadline because of maternity or pregnancy.
Discrimination by Association: Could occur if:
a student whose child has Attention Deficit Hyperactivity Disorder (ADHD) is refused access to a graduation ceremony because of fears about the child’s behaviour.
An employee is overlooked for promotion because they care for an elderly relative and may need to work ‘flexibly’.
Discrimination by perception: Could occur if:
a member of staff refused to supervise a student because they think they are transsexual
An employer decides not to promote a member of staff because they think they have a disability.
Indirect discrimination has been extended to cover disability and gender reassignment. Example:
A member of Security staff has a disability which means they are exhausted after two long days of working. A new shift pattern is introduced which means that everyone has to work fewer but longer days. So the new shift pattern puts them and others with same or similar disabilities at a disadvantage. This is indirect discrimination, unless the new shift pattern can be justified (robustly).
This could also apply where any rigid working pattern was applied with unreasonable lack of flexibility.
Harassment
The law now covers complaints of behaviour found offensive by an individual even if it’s not directed at them, and the complainant need not possess the relevant characteristic.
Third Party Harassment
As an employer, the University is now potentially liable for harassment of its staff/students by people we don’t employ, e.g. outside contractors working on campus.
For a claim to be made, the harassment must have occurred on at least two previous occasions, the University must be aware it has taken place and have not taken reasonable steps to prevent it from happening again.
Pre- employment Health Questions
Asking about the health of a job applicant is now prohibited before the offer of employment (with some limited exceptions). However, the University should continue to ask all applicants whether they require reasonable adjustments or support during the recruitment process.
Gender Reassignment
The definition has been amended – people no longer have to be under medical supervision to be covered by the law.
Employment Tribunals
Under the previous legislation an Employment Tribunal could make a recommendation that an employer must eliminate or reduce the effect on a claimant of any discrimination found to have occurred. This power is now extended so it will be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect on other employees, not just the claimant.
Estates/Accommodation
As well as ensuring we make reasonable adjustments to premises to ensure an inclusive living and studying environment for disabled students, we should ensure any private landlords with whom we have a contractual relationship are aware of their duties and are committed to providing accessible accommodation.
Positive Action
HEIs are now able to adopt voluntary positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce underrepresentation in relation to particular activities and meet particular needs. Any positive action taken would need to be a proportionate way of achieving the identified aim.
Finally, to note:
The University has a responsibility to ensure that not only is it compliant with current equality legislation but also that it informs relevant people such as its staff, students and those visiting its campus of what its equality policies and procedures are.
DRAFT – FUNCTIONS FOR EQUALITY ANALYSIS Appendix 2 Students ADMISSIONS SUPPORT/ RETENTION ASSESSMENT/ ACHIEVEMENT DESTINATION
Outreach Accommodation Examinations
Practice Careers Advice Widening Participation Learning Enhancement Services Training of Invigilators Congregation Services Open Days – practice Mental Health Admissions Code of Practice International Student Services CRB Equality Policies
Freshers Fairs Library Services Prospectuses Breastfeeding Provision New Course Proposals Estates – physical Estates development Provision for Freshers Grievance International Student Welcome Security – Hate Crime monitoring Course Review Staff
RECRUITMENT TURNOVER PROGRESSION EXIT
Wording of job adverts Consistency of working practices Promotion (including construct/criteria) Exit processes and interviews Shortlisting Flexible working Temporary
placements/secondments
Redundancy Invitation to attend Family friendly
policies
Appraisal Sabbatical Selection process Processes
Appendix 3
DRAFT PROMPT SHEET: EQUALITY ANALYSIS
For each new or revised policy the following questions must be properly considered, evidence documented and a record kept, dated and signed. Equality Analysis is the responsibility of those reviewing or developing the policy or practice. A copy must be forwarded to the Equality and Diversity Manager: [email protected] and a summary of findings must be included in any submission for approval by a relevant committee.
Basic steps of equality analysis:
1. Establish what relevance to or impact on equality, the policy has; 2. Which aspects of equality are, or may be, affected and how?
(perspectives to consider are: age, disability, gender, marriage and civil partnership, pregnancy and maternity; race, religion or belief, sexual orientation and transgender).
What aspects of the General Equality Duty link to the policy or practice under review? Are there opportunities to advance equality which had not previously been considered?
3. What evidence is available to consider? Data and qualitative information (for example, course feedback, complaints, existing survey responses may be useful). Are there any gaps in data/feedback available? What has been put in place to improve information available for the future?
4. Have you modified your policy, added in extra considerations, altered your approach as a result of consideration of evidence?
5. State when your policy will be reviewed and what is in place to facilitate this.
6. Include a summary of your findings in any paper being submitted to a Committee for approval.
