The Equality Act 2010: Changes and Challenges for Local Governments

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.

The overarching ‘general’ duty will be underpinned by a series of

specific duties. Much of the purported import of the Act on Local Governments
and County Councils shall, primarily, be determined by the final form and
nature of these specific duties. The Government issued draft specific duties for
England for consultation in June 2009. In January 2010 the Government
published a policy paper in response to the feedback it received from the
consultation. It is expected that the Government will consult on draft
regulations for England in the summer of 2010. In case of Scotland and Wales
it will be done at a later date.

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

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bodies should follow to take a more flexible approach which focuses on
outcomes – the end, not the means”. The Government believes that “a less
prescriptive, more outcome-focused approach to the Equality Duty will not
only allow public bodies more freedom to genuinely mainstream equality and
target their resources on the areas where they can make a difference; it should
also result in smarter, more efficient and more effective public services for all”.
The Government is of the view it is “not appropriate to prescribe in legislation
a particular set of steps – whether related to formal equality impact assessment
processes or to staff training – which all bodies, whatever their size or nature
of their business, need to take to achieve equality outcomes”.

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.

Transparency: The Act provides for making it mandatory on public bodies to

report, as employers, on: gender pay gap; ethnic minority employment and
disability employment. The current legislation requires publication of only
ethnic minority employment. The Act provides for the pay transparency
regulations to be extended to the voluntary and the private sector in 2013, if
needed.

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.

Broader Age Discrimination Protection: Improving and expanding upon the

current legislation— which debars age discrimination within offices— the Act
also provides for removal of age discrimination outside the office in provision
of goods, services, facilities and public functions. However, this ban on age
discrimination shall not come in force un till 2012.

Strengthening Protection from Discrimination for Disabled People: The

Act contains a new provision aimed at re-establishing an appropriate balance
between enabling a disabled person to make out a case of experiencing a
detriment which arises “because of” his or her disability. The clause is meant to
reverse the negative fallout, on disabled people, of the House of Lords
judgment and in Mayor and Burgesses of the London Borough of Lewisham
LBC v Malcolm case. Replacing the term “on the grounds of” with the term

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“because of” the Act broadens the scope of protection available for the disabled
persons.

Dual Discrimination: The Act extends the circumstances in which a person is

protected against discrimination by allowing people to make claims if they are
directly discriminated against because of a combination of two relevant
protected characteristics. The Act also recognises “associative” and
“perceptive” discrimination: individuals are protected if they suffer
discrimination due their association with a person from any protected strain or
if they are perceived to be so.

Wider Employment Tribunal Powers: The Act empowers the employment

tribunals to make recommendations to respondent employers (who lose any
discrimination claims) to take broad steps to remedy the root cause(s); this shall
be over and above the relief granted to the individual claimant. This single
change may, in the long run, prove to be the most important change, as it can
lead to subsequent relevant and focussed systemic changes that help advance
equality at work place.

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 Challenges for Local Governments, in Particular the County Councils

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.

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 While this may sound very agreeable, it brings in the biggest challenge
for the LGs, especially the County Councils? In absence of mandatory
requirements, it shall be very difficult for even the well meaning ‘equality
teams’ to garner support and resources, for equality work, from the relevant
quarters of a council. Considering the fact that in spite of being mandatory,
currently, the equality work in majority of Councils lies in shambles! The
model, apparently proposed for Specific Duties in secondary legislation, will
need a strong back-up/buy-out from senior management including the
Councillors to succeed. The first and the foremost challenge for Councils,
therefore, will be to generate the requisite motivation and managerial-will to
carry forward the equalities-work.

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?

Another challenge will be the new socio-economic duty. It being a new

initiative, the Councils have no experience of dealing with it. So, it will be a
challenge to work out the modus operandi for the execution and the
organisational resources for the discharge of this new duty.

Yet other challenge might be associated with the application of the

‘positive action’. It states that if two persons have same qualifications the
Council may choose the one from the equality groups. Now, what does
qualification mean? Is it two persons having similar qualifications, say,
master’s degrees, or is it two persons having same competencies’ qualifications
for the job. In case it is former, it may involve choosing a less competent
person over a more competent person (therefore discrimination). If it involves
latter, then this positive action will never take place as it is next to impossible
to have a situation where you have two candidates with exactly same
competencies’ qualifications. Therefore, it will be a challenge to see how
Councils will go about using their discretion of positive choice.

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.

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