Further and Higher Education Providers and the Equality Duty
The Public Equality Duty came into force on 5 April 2011. It effectively replaced the previous equality duties which related only to disability, race and gender and sought to introduce a wider duty with less of an administrative burden on public bodies. The Equality Duty is a duty on all public bodies, which includes institutions of further and higher education, requiring them to consider the needs of all individuals in their day-to-day work – in sharing policy, delivering services and in relation to their own employees.
The New Equality Duty includes more of the protected characteristics such as age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It also applies to marriage and civil partnership but only to the extent to eliminate discrimination. In terms of the other protected characteristics, the Equality Duty has three aims to which public authorities must give due regard, these are:
1. Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act.
2. Advance equality of opportunity between people who share a protective characteristic and people who do not share it.
3. Foster good relations between people who share a protective characteristic and people who do not share it.
Due regard means, conscientiously thinking about the aims above as part of the normal decision making process. In terms of what this means for Further and Higher Education providers, it is no longer a requirement to conduct an equality impact assessment as it was before the new Equality Duty.
In fact, there is no prescribed process for thinking conscientiously about the three aims giving public authorities much more discretion on how they comply with the Duty. The Home Office has suggested that keeping a simple record of how decisions were made will help public bodies show that they gave due regard to the Equality Duty.
The new Equality Duty seeks to make it easier to for public authorities to comply with the three aims and has removed the administrative burden of previous requirements whilst incorporating more characteristics to be considered. In terms of enforcement, the Equality and Human Rights Commission is responsible for assessing compliance with and enforcing the Equality Duty. It has the powers to use compliance orders to force a public body to comply with the Equality Duty. The Equality Duty can also be enforced by an individual or an interested group through judicial review.
About the author
Joanne Stronach is joint Head of Burnetts' Employment Law & HR team.