The Public Sector Equality Duty – Change for the Equality Act?

Equality 146x219The Government has recently announced its proposals to reform a number of aspects of the Equality Act, including the public sector equality duty. Graham Richardson considers the potential impact of these changes for employers.

Background

Although the Government has reiterated a strong commitment to reducing inequality in the workplace, there is a balancing exercise to be made between this commitment and the effectiveness of what may be onerous, and at times disproportionate, burdens placed upon employers. While it has gone some way to consolidating the complex array of discrimination legislation, the Equality Act 2010 (“the Act”) has been criticised by some for placing unnecessary burdens on employers.

The Government’s proposals have therefore been announced with the intention to reduce “red tape” while still protecting employees against unlawful discrimination. Perhaps of most interest to public authority employers is the Government’s announcement that it will be reviewing the Public Sector Equality Duty. This article will therefore place a particular focus on this, as well as considering some of the Government’s other proposals which form part of this package, namely:

  • Repealing employers’ liability for third party harassment;
  • Abolition of the discrimination questionnaire procedure; and
  • Removing the Employment Tribunal’s current power to make ‘wider recommendations’.

The Government is currently consulting on the above three proposals, with consultation due to close on 7 August 2012.

Review of the Public Sector Equality Duty

The Public Sector Equality Duty (“PSED”) has three main aims:

  • To eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act;
  • To advance equality of opportunity between people who share a protected characteristic and those who do not; and
  • To foster good relations between people who share a protected characteristic and those who do not.

The PSED consists of a ‘general’, or overarching, duty and a ‘specific duty’, which is intended to help performance of the general duty by placing an obligation on each listed authority to publish annual information to demonstrate their compliance with it and publish a minimum of one objective, at four yearly intervals, to help further the aims as set out above. It was thought that the PSED would enable businesses to focus on the need to eliminate unlawful discrimination.

In practical terms, the PSED is not prescriptive about what approach a public authority should take in order to comply with its legal obligations, but as the law currently stands employers to whom the PSED applies should take into account the above three aims as an integral part of their decision-making process. Compliance with the duty could, in certain circumstances, potentially involve treating some people more favourably than others. Guidance has been published by the Equality and Human Rights Commission to help public authorities fulfil their duties under the Act.

One component of the PSED is that public authorities should recognise that the needs of a person who has a protected characteristic may be different from those of a person who does not and account should therefore be taken of this when making decisions about policies or services. With regard to taking account of people’s disabilities, the guidance gives the example of a university providing car parking spaces for disabled students so that those who cannot use public transport because of their impairment have equality of opportunity in access to courses.

The guidance stated that the PSED made good business sense, and that meeting the diverse needs of others should allow employers to carry out “core business more efficiently”. Nevertheless, the duty has also come with some degree of administrative and regulatory burden; publishing information and objectives takes up management time. This clearly influenced the Government’s decision to review the PSED to see whether “it is operating as intended”. To date however, the Government has not provided any further details on the remit of its review. Public authority employers will therefore have to await further announcement before they consider what effect the review might have on their business practices.

The Government has also announced that, alongside this review, it was proposing to repeal a duty under the Act which would, if in force, place a legal obligation on public authorities to consider the impact of their decisions on social class. Although this duty had never been brought into force, this marks a further development in the Government’s stated objective of reducing “red tape”.

Repealing Employers’ Liability for Third Party Harassment

The Act currently imposes liability on an employer where an employee has been harassed by a third party (this may include a client or visitors) if the employer has not taken ‘reasonably practicable’ steps to prevent this third party harassment, and they know that such third party harassment has occurred in the course of the employee’s employment on at least two prior occasions. This liability may arise whether or not the third party was the same person on each occasion. An employer can be held liable for a manager’s acts or omissions to prevent third party harassment, regardless of the employer’s knowledge or approval.

At present, there has been no guidance published on what are classed as ‘reasonably practicable steps’, or on how close together the three occasions have to be. In some situations, where an employee works in the kind of job where they are regularly subjected to abuse by third parties (for example a traffic warden) it might be extremely difficult for an employer to prevent this from happening. Furthermore, the Government has suggested that there are laws already in place that will adequately protect employees from this type of harassment. Therefore, this provision is no longer seen as an “appropriate or proportionate manner of dealing with the type of conduct which it intends to cover”.

Employers will still of course be responsible for the welfare of their employees. However, the proposed repeal of the provision in relation to third party harassment may allow employers to reduce the amount of time and money they spend on worrying about something which may be, realistically, beyond their control.

Abolishing The Discrimination Questionnaire Procedure

Under the Act, if an employee believes they may have a discrimination claim, they can submit written questions to the Respondent employer, who then has eight weeks to reply. Although employers are not obliged to reply, a Tribunal may draw an adverse inference from a failure to do so, or if an equivocal response is provided.

The discrimination questionnaire procedure was introduced due to a belief that such questionnaires would speed up the Tribunal process and allow parties more opportunity to settle matters out of court. However, the Government has reported that it has seen no evidence of this. The Government appears to consider that, rather than saving time, the procedure often wastes it, opening an opportunity for employees to go on a fishing expedition, while employers often spend a considerable amount of time responding to the questionnaires, which can be long and technical.

Repeal of this provision would go some way towards reducing the regulatory burden that currently takes up an estimated 45,000–60,000 working hours of management time. Employers should however be aware that there is concern that the proposed repeal of the questionnaire procedure may lead to an increased number of pre-action requests or applications for Tribunal orders. If brought in, only time will tell if the reform has this effect.

Removing Employment Tribunals’ Power to make Wider Recommendations

Under the Act, Tribunals can currently make recommendations that are applicable to all of an employer’s staff in circumstances where the Claimant’s employment has terminated. This power was designed to address future discrimination in the same workplace.

However, some believe that the power is not required because employers will often make changes to their policies and practices on their own accord if they have been unsuccessful in an Employment Tribunal claim. To date, the power has rarely been used (there has only been one reported case where a Tribunal has made a wider recommendation since the power came into force). Given this, the practical effect of its proposed repeal may be limited. Nevertheless, if the reform is implemented employers may take comfort in knowing that, should they unsuccessfully defend a discrimination claim, the Tribunal’s power will be limited to recommendations which would be of benefit to the Claimant. In many cases, if the Claimant’s employment has terminated, the Tribunal would not be in a position to make any recommendations.

Conclusion

The Government has stated that “overburdening businesses benefits no one” and the proposals outlined above attempt to strike a balance between “protecting people from discrimination and letting businesses get on with the job”. It is with this in mind that the Government has commenced its consultation on proposed reforms to the Act. Only time will tell whether the Government has struck the right balance, and this is likely to be an issue that will provoke considerable debate.

Graham Richardson is a Director in employment law at national law firm This email address is being protected from spambots. You need JavaScript enabled to view it.. He can be contacted on 0191 279 9456 or by This email address is being protected from spambots. You need JavaScript enabled to view it..