Equality Duty submitted its report, and recommended significant changes of practice and emphasis in the way public sector bodies handle equalities issues. The Government has indicated its acceptance of these recommendations, a move which, combined with other developments, could produce major alterations in the expectations and work programmes around equalities in the coming years. Steve Vale, HR Consultant, speculates on the potential impact.
The review of the public sector equality duty
The current duty
The Equality Act 2010 replaced a number of equality duties relating to specific issues (race, disability and gender), with a single Public Sector Equality Duty (the Duty), encompassing all of the characteristics protected under the Act. This single Duty applied from April 2011, and gave public bodies a general duty to have due regard to the need to:
eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010
advance equality of opportunity between people from different groups
foster good relations between people from different groups.
In addition, most public bodies are also subject to specific duties which applied from September 2011 in England, requiring them to:
set and publish equality objectives, at least every four years
publish information to show their compliance with the Equality Duty, at least annually, including information relating to employees (for public bodies with 150 or more employees) and information relating to people who are affected by the public body’s policies and practices.
Why a review?
The Government decided to proceed with a review in May 2012, on a faster timescale than first envisaged. It decided that the review should include both the general and specific duties and focus on whether the Duty is operating as intended. The detailed terms of reference for the Independent Steering Group undertaking the review referred to:
looking at the effectiveness of the Duty from the perspective of those on which it impacts
looking at the costs burdens and benefits of the Duty as currently configured
looking at possible alternative models, based on international experiences in the equalities field
considering how the Duty functions in the context of the current Government’s equality strategy and its new approach to achieving change, including:
devolving power to people
supporting social action
integrating equality considerations into policy and programmes
examining the role of support and guidance given to public bodies and how legal risk is managed within different types of public bodies
considering what further measures could be taken to improve operation of the Duty.
The foreword to the Steering Group’s report is perhaps more transparent on the reasons for the review, with the Group’s Chair (Rob Hayward OBE, former MP for Kingswood/Bristol) stating:
“in these difficult economic times, we want our public bodies to be efficient, professional, and to make very careful use of the funding and other resources available to them.”
There was a clear view from government that the way the Duty is currently configured is overly bureaucratic, in a way which fell afoul of the Government’s own “Red Tape Challenge” (eg by creating barriers for small businesses and charities that wish to bid for public contracts but do not have the data which some public bodies insist upon).
The overriding focus of the review was on whether the current Duty was effective ie by:
building on the previous equality duties
simplifying them and extending them to other protected characteristics
reducing the bureaucracy associated with the previous duties.
It was not part of the brief for the review to consider whether there should be a Public Sector Equality Duty at all — it was asked to concentrate on whether the implementation of the Duty has been effective in delivering the intentions set out above.
What areas did the review look at?
The Steering Group focussed its work on the following four areas.
The impact of the Duty in terms of costs, burdens and benefits — quantitative information about costs, benefits and burdens was sought from organisations, although a formal Cost Benefit Analysis of the Duty proved impossible to develop since, while there are clear costs to public bodies associated with the Duty, these have not been monetised and the evidence of benefits is also unclear.
Enforcement of the general Duty — looking at formal enforcement and sanctioning mechanisms to ensure compliance, as well as looking at how legal risk is managed by public bodies.
Compliance with the specific duties — looking at how these have been interpreted by public bodies in terms of the data they collect and publish and what is required by the legislation.
Procurement — recognising that the review arose from the Red Tape Challenge, engaging with the business community to explore how burdens may be passed on to those organisations that bid for and deliver public contracts.
What were the main findings?
The key points to emerge from each of the main areas of focus were as follows.
The impact of the Duty in terms of costs, burdens and benefits
As already noted, a robust cost-benefit analysis of the Duty could not be developed.
There are clear and obvious costs to public bodies which derive from the Duty, but these vary enormously between public bodies.
Except in relation to start-up costs, there is little evidence that the current Duty has significantly increased costs in comparison with previous duties.
Although many organisations attributed general benefits to the Duty, more specific benefits were unclear, with little evidence on whether the Duty is leading to better decision-making and measurable improvements in policy and service delivery.
Most evidence was found around burdens, with evidence of public bodies adopting blanket, formulaic approaches to issues such as procurement and data collection. As a result burdens are not limited to the public sector but may be passed on to private and voluntary contractors and to members of the public.
The Steering Group concluded that it believes it is too early to make a final judgement about the impact of the Duty so that its recommendations in this area are mainly associated with how it should be implemented.
Enforcement of the Duty
The Duty can currently be enforced through the Judicial Review procedure or through the Equality and Human Rights Commission and, for the vast majority of public bodies, such enforcement action is highly unlikely. However, for these bodies, the Duty can still provide an effective means of challenge.
Therefore, the legal risk to public bodies is small (legal challenges under the Duty are most commonly taken against central and local government bodies), although the impact on the public body facing a legal challenge can be significant.
Challenges have highlighted the fact that the meaning of the need to have “due regard” in a particular situation is not defined in the legislation and many organisations think that there should be greater clarity and precision in the legal requirements under the Duty.
There is a case for the use of other regulators to play a role in ensuring compliance with the Duty.
Compliance with the specific duties
Compliance with the specific duties has been weak so far, with wide variation in the volume and nature of data being published.
Data collection is currently seen as important by many public bodies, as well as equalities stakeholders, voluntary organisations, trade unions and other groups with an interest in improving service provision.
Although several public bodies described how data had enabled them to improve their services, there are few concrete examples of how the legal requirement to publish data helps bodies give effect to the general “due regard” duty.
There appears to be a tendency amongst some public bodies to over-comply and publish all the data they collect, which has both resource implications and potential to clash with data protection legislation.
Data that is currently collected by many public bodies is also patchy, either because of new systems that are not yet established or because of low reporting on the newer protected characteristics (sexual orientation, religion and belief, gender reassignment).
There is also a lack of consideration given to the safe storage of data or to the risks of “data mining” arising from collecting and publishing personal information.
Nearly all organisations, whether from the private sector or public sector, had a strong view that equality and diversity considerations should be part and parcel of good service delivery, regardless of the existence of the Duty.
Public procurement was commonly held to be far more bureaucratic than the private sector, although the Duty was only one driver for this bureaucracy.
While many public bodies are attempting to embed equality considerations effectively into their procurement and commissioning processes, there is evidence that too many are adopting a formulaic, “tick-box” approach, which they do not vary, regardless of the size or nature of the contract.
There is evidence of such practices creating a barrier for smaller companies and charities wishing to tender for public contracts.
What were the overall conclusions from the review?
The Independent Steering Group has, at this stage, been fairly cautious in its recommendations for the future. It says that it is too early to make a final judgment about the impact of the Duty, as it was only introduced in April 2011 and evidence in relation to associated costs and benefits is inconclusive.
The Steering Group found broad support for the principles behind the Duty, but discovered that there are a number of issues and challenges relating to its implementation, including the extent to which implementation varies across the public sector.
A specific problem in implementation is that the precise implications of any “due regard” duty are likely to be open to interpretation by public bodies. What amounts to “due regard” will be dependent on particular circumstances and only a court can currently confirm that a public body has had sufficient regard in a particular case. This uncertainty has led to many public bodies adopting an overly risk- averse approach to managing legal risk in order to rule out every conceivable possibility of non-compliance — something which was a recurring theme throughout the review.
On the over-riding question of whether the Duty is achieving the aims that the Government had in mind in introducing this legislation, the Steering Group concluded that it is not as yet doing so because:
the extension of the Duty to other protected characteristics not previously covered has been slow, with evidence that an unofficial hierarchy of protected characteristics remains present in the approach of some organisations
there are very few clear practical examples of the Duty leading to demonstrable improved outcomes
work undertaken so far on the specific duties does not seem to have helped organisations to achieve the general Duty more effectively, and the need to set equality objectives and to publish information demonstrating compliance with the Duty has, in too many cases, led to increased bureaucracy and paperwork.
What are the specific recommendations for the future?
As a result, the Independent Steering Group made a series of recommendations in its report that are outlined below.
The Equalities and Human Rights Commission (EHRC) must produce shorter, more bespoke guidance, clearly setting out what is necessary for compliance for different public bodies.
Other regulators must have a role in supporting implementation, with service-specific regulators, inspectorates and relevant ombudsmen services integrating the Duty in their core functions and collaborating closely with the EHRC with respect to compliance action. In some cases these could extend to co-production of tailored sector-specific guidance.
The EHRC and Information Commissioner should work together to provide greater clarity on the role of data and its collection, and the use to which data is put in order to demonstrate compliance with the Duty, aimed at ensuring that public bodies do not collect diversity data unless it is necessary for them to do so, and do not take a disproportionate approach to data collection and procurement.
Public bodies must ensure they adopt a proportionate approach to compliance and not seek to “gold plate”, undertaking benchmarking of their processes for compliance with their peers, with a view to reducing unnecessary paperwork.
Specifically, public bodies must reduce the burdens placed on small employers, by:
discontinuing the use of Pre-Qualification Questionnaires (PQQs) for contracts below £100k and utilizing the government’s core PQQ, which does not include equality requirements for contracts over this amount
not imposing disproportionate requirements on contractors’ delivering services (particularly those with fewer than 50 employees) to provide equality data on workforce and service users.
Public bodies should be challenged where their procurement processes create barriers for small businesses and charities, with private and voluntary sector employers in England referring any potentially inappropriate equality requirements that have been applied to a particular procurement exercise to the Cabinet Office Mystery Shopper scheme.
Public bodies must be proportionate in publishing information — although consensus was not reached in the Steering Group, one view was that the data gathering and publication requirements in specific duties do not serve their intended purpose and that the Government should consider their modification or complete removal.
The Government should consider whether there are quicker, more proportionate, appropriate and cost-effective ways of reconciling disputes relating to the Duty than Judicial Review.
Since it is too early to make a final judgment about its impact, the Government should consider conducting a formal evaluation of the Duty in three years’ time to allow time for:
the current Duty to embed more thoroughly in organisations
a better assessment of whether it is an effective means of achieving the goal of sensitising public bodies to equality issues
an understanding of what alternatives there might be.
The Government’s reaction to the findings of the review
The Government published its response to the Independent Steering Group report on the same day as the report itself was published.
It has accepted all the recommendations put forward, and says that it would like to see these implemented by all the relevant parties, including the EHRC, public bodies and contractors.
It has also accepted that the Steering Group did not consider the option of repeal of the Duty, and has indicated that it would have been premature to do so, instead agreeing with the conclusion that a full evaluation of the effectiveness of the Duty should be undertaken in 2016, after it has been in operation for five years.
It also expects to work closely with the EHRC on ensuring that the specific duties support the aim of making public bodies more transparent about their objectives and performance on equality, hinting that, although there was no consensus in the Steering Group, the option of modification or even removal of these duties remains.
On the issue of the enforcement of the Duty, it recognises the need for alternatives to either sit alongside or replace judicial review. It says that it will examine this issue as part of a wider review, led by the Justice Secretary, which aims to devise a new arrangement to ensure that disputes are settled in the most proportionate way and in the most appropriate setting.
Given the roots of the review in the Red Tape Challenge it is unsurprising that the Government sees so called “gold-plating” of public sector procurement processes as one of the most urgent issues to be tackled. The Government’s response to the review calls for this issue to be given priority by all the relevant parties, and links it to issues of ensuring that SMEs and the voluntary sector are able to bid for public sector contracts on a fair basis, and are not excluded by bureaucracy.
While not put in those terms, the Government’s overall response could in some ways be seen as a veiled threat to the future of the Public Sector Equality Duty. It has stopped short of major changes to, or abolition of, either the general duty or the specific duties at this stage. But it has not ruled out returning to these options in 2016, if the relevant parties do not respond quickly or effectively to the issues raised in the Independent Steering Group report.
The message to public sector organisations (and particularly those, like local authorities, who are substantially engaged in procurement) is that, if they feel that being held to account on an equality duty is useful and valuable, they need to engage quickly with the issues raised by the Steering Group report, and show how a better-organised response to the Duty can produce tangible benefits for those with protected characteristics and for the community as a whole.
Other changes in the equalities landscape
The Steering Group report and the Government’s reaction to it may be symptomatic of changing attitudes to equalities in the policy context. Recent developments do not suggest that equalities issues are being ignored or downgraded, or that there is any question of reducing the scope of the law on discrimination, but they do suggest a change of emphasis, where equalities issues are increasingly seen alongside economic issues, with a balance to be struck between competing interests where necessary.
Thus, if the Duty is seen as potentially obstructing the growth of SMEs, its continued existence in the current form may be called into question. Defending the Duty may then be problematic if it is difficult to demonstrate the benefits of it in terms as concrete and tangible as the benefits of growth in the number of successful SMEs and resulting growth in the economy.
The Red Tape Challenge has had the effect of somewhat blurring the lines between sound public policies with legitimate social objectives and over-bureaucratic regulations which inhibit enterprise and growth; and the Government has always made it clear which side of the argument it will support if there are marginal decisions over which category particular policies or pieces of legislation fall into.
Things are also changing in one of the most visible areas of equalities — equal pay. One reason for a lowering of the pressure on public sector organisations in this area is, of course, the fact that many organisations have implemented equality-proof pay and grading systems and dealt with historic discrimination issues.
But, for those who have not done so, the pressure has abated somewhat recently. Signs of the demise of the no-win, no-fee solicitors who have previously encouraged public sector employees to bring equal pay claims have been seen recently — most notably with the decision of Stefan Cross to wind up his business. Whether this indicates that the lawyers have exhausted the supply of easily winnable cases, or whether it indicates a greater reluctance in employees to bring cases in the current climate is impossible to tell.
Perhaps a more significant change in the landscape is a change in trade union priorities, where there has been a detectable diminution of emphasis on equal pay issues in the past few years. This initially appeared to be due to the unions having to redeploy their limited resources to deal with widespread job losses (in local government) and changes to pension schemes. But it has also become clear that, after years of pay freezes, the emphasis is now more on the level of pay per se than on equal pay issues.
A trade union priority for many years has been low pay and in particular low pay for women. Equal pay claims and campaigns have been a key part of the strategy to address this issue. It now appears, however, that a more general push to increase the pay levels of all low-paid employees, linked to the Living Wage campaign, is being seen as a more effective route to tackling low pay, and therefore may acquire higher priority that the equal pay agenda. (It is also worth noting that tackling low pay may also have an (indirect) impact on closing the gender pay gap).
The foregoing analysis suggests a change not so much in the overall equalities landscape for the public sector — there has, after all, been no change in the legislative framework — as a change in emphasis and perspectives. Equalities issues have certainly not gone away, but there are signs of a general recognition that, in the current climate, they are only part of the public policy mix, and cannot be divorced from issues of economic and broader social policy.
There appears to be acceptance in a number of quarters — not only the current Government but from independent sources — that equality issues, and the duty to have regard to them, cannot be seen in a vacuum. They need to be pursued in a manner which is both efficient and cost effective in itself, and which supports (and certainly does not inhibit) efficiency and prosperity in society as a whole.
It is clear that there is some uncertainty over how a new balance should be struck between equality and economic policy. The impact of the Independent Steering Group’s review of the Public Sector Equality Duty seems to put the onus for striking that balance on to those who value the Duty and are charged with implementing it. In the next few years, the pressure will be on them to show how the Duty can be pursued more effectively, with more tangible outcomes, while remaining compatible with broader social and, in particular, economic objectives.
The report of the Independent Steering Committee on the Public Sector Equality Duty (PSED) review can be found at:www.gov.uk.
The Government’s response can be also found at the same address.