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Briefing Paper The Equality Act 2010
Briefing Paper The Equality Act 2010
On April 8, 2010, the Equality Bill received Royal Assent to become the
Equality Act and, in the process, replaced a total of 116 statutory instruments
— including 09 major Acts. This harmonisation is designed to simplify,
streamline and strengthen the law; giving individuals greater protection from
unfair discrimination and making it easier for organisations to understand their
responsibilities towards their employees and customers.
Whilst the part-16 of the Act has already come in force, the main
provisions shall be coming into force in October 2010. The major changes that
the Act brings about in current equality legislation, relevant to Local
Governments, can be summed up under the following headings:-
Socio-economic Duty: Part 1 of the Act establishes a new public sector duty
geared towards addressing socio-economic inequalities. By means of this new
duty the identified public authorities are required to have “due regard” to the
“desirability” of reducing socio-economic disadvantages. This duty relates
specifically to “public functions” as defined and also extends to a limited range
of other public authorities that may work in partnership with local authorities in
drawing up sustainable community strategies. The public policy areas that
might be addressed in furtherance of this duty could include: health
inequalities; local and regional concentrations of disadvantage; urban socio-
economic polarisation; business support and support for small firms in deprived
areas etcetera.
Single Equality Duty: The Act replaces the existing three Public Sector Duties
– covering race, disability and gender – by a broad Single Equality Duty that
expands the protection to include: age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or
belief, sex and sexual orientation. This duty, along with the socio-economic
duty, shall come into force in April 2011.
As stated in the policy paper, the Government wants “a set of specific duties
that are flexible, proportionate and non-bureaucratic”. The policy-intent is “to
move away from a detailed legislative description of processes that public
Public Procurement: The Equality Duty requires public bodies to give due
regard to the need to tackle discrimination and promote equality through
procurement using their enormous purchasing power of more than £220
Billion/year.
No Individual Rights Under Public Sector Duties: The Act does not allow
an individual to take legal action claiming damages for breach of a statutory
duty. However, decisions of the listed public bodies could be subject to judicial
review.
Positive Action: in a radical move, the Act now allows an employer or service
provider to take positive action so as to enable existing or potential employees
or customers to overcome or minimise a disadvantage/barrier arising from a
protected characteristic.
Burden of Proof: The Act, uniformly across all protected strains, transfers the
burden of proof to the defendant once plaintiff establishes a case prima fascie.
The only exception to this rule is if the proceedings relate to a criminal offence
under this Act.
Other Changes: The Act also amends family property law to remove
discriminatory provisions and provides additional statutory property rights for
civil partners in England and Wales and the Civil Partnership Act 2004 to
remove the prohibition on civil partnerships being registered in religious
premises. The Act also extends, with a sun-set clause for 2030, the permission
for political parties to use women-only shortlists for election candidates.
The real fall out, at operational level, for the County Councils like
Northamptonshire County Council can only be fully gauged after the secondary
legislation is finalised. It is the Public Sector Duties that determine the
‘equality legislation obligations’ for Councils in their day to day business.
Therefore, it will depend on the exact form, content and nature of the Specific
Duties are laid down in secondary legislation. Going by the process till now, it
seems that the Government is all set to do away with the current prescriptive
model and give Local Governments (LGs) a considerable freedom in not only
determining and setting their own equality goals but also grant them absolute
freedom to choose the way/manner to execute their equality work. Thus, there
will be no mandatory obligation to produce equality schemes, action plans,
impact-assessments etcetera.
The second important challenge shall be around the public duty for
procurement. Procurement exercises are legally complex with both domestic
and EU rules to adhere to. As per EU rules the public sector purchasing
decisions have to be based on value for money achieved through competition.
The challenge, therefore, will be as to how will the councils marry the best
value with equality considerations?
Finally, there will be the general challenge of coping with the ‘change’
that this Act brings along. Like any other organisational-change this will
generate a lot of ‘organisational-stress’. This may entail changing
organisational processes, plans, people etc. It shall, therefore, be another major
challenge.