Most of the Equality Act came into force earlier this month. One key part, though, will not take effect until April. The trouble is that it could impose a huge obligation on organisations and give them almost no time to meet its demands.
The Act imposes on public bodies a 'single equality duty'. This duty is a good idea – it demands that organisations eliminate discrimination and promote equality. They must publish information related to equality and set and meet equality objectives.
This applies to all the characteristics covered by the Equality Act – race, disability, sex, age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment. It replaces equivalent duties currently limited to race, gender and disability equality.
The problem is with the time scale being set by Government. The duty will come into force on 4th April 2011. Yet the consultation on the duty has not even closed. The Government response may not be published until three months after the consultation has ended, meaning February of next year.
This puts public bodies on the horns of a dilemma. They can either wait until the final form of the Regulations implementing the law is known in February, leaving themselves almost no chance of being compliant with the law when it comes into force.
Or organisations can start work now on complying, but run the risk of the legal ground shifting under their feet as the consultation, Government response and the promised Equality and Human Rights Commission (EHRC) guidance is published.
It would be nearly impossible for any organisation to fulfil all the conditions of the duty in the few weeks between February and April. They must conduct an impact assessment of all their policies and practices to make sure they comply with the new law.
The scope of this assessment is still vague, and is likely to be enormous – every single aspect of an organisation's activities will be covered: policies and practices affecting staff and prospective staff, estates and facilities provision, procurement, as well as relationships with other institutions, funders, business and the wider community.
'Policies and practices' will include not just formal written policies and practices but also informal rules and practices, and how formal policies are applied. In some equality strands – religion and belief and sexual orientation – bodies may currently lack the necessary quality of data to enable meaningful impact assessment to take place.
Our experience as a law firm is that the process of impact assessment is neither quick nor easy. Institutions are still unsure about what is required and we are seeing disputes between institutions and trade unions over what needs to be assessed, when, how and in what detail. The Government consultation paper fails to acknowledge the real cost to the public sector of complying with this impact assessment burden.
Organisations will also have to comply with the onerous obligations to publish workforce data on equality issues, listing the protected characteristics of their employees. This, again, is a major undertaking.
As it stands there is no clarity on exactly what an organisation's obligations are in relation to information publishing or impact assessments. Ultimately, it will be the EHRC which enforces the Regulations, and their guidance is still not available, even in draft form.
The substance of the draft Regulations could change after consultation, and so could the proposed timetable. Organisations which start their impact assessments and information publishing now could find themselves having to repeat their efforts or scrap them entirely if the proposed law changes. Many may choose to wait.
This places universities, local authorities, NHS Trusts and others in a potentially difficult situation. We expect equality groups, staff and trade unions to scrutinise compliance with the new obligations from the moment that the Regulations take effect. Our experience in relation to restructuring exercises and major organisational changes is that equality impact assessments become an immediate pressure point, often exacerbated by the absence of a shared understanding of what the process of impact assessment actually requires.
So if organisations are not compliant from the moment that the Regulations take effect, this could cause them major problems. Yet ensuring compliance from 4th April in the current timetable is almost impossible.
These draft Regulations fail to meet one of the most important requirements of any new law – that it gives organisations affected by it enough clarity and time to make sure that they can comply with it before it comes into force.
By Chris Mordue, Head of the Universities Employment Team at Pinsent Masons, the law firm behind OUT-LAW.COM. A longer version of this article is available for those in the universities sector (but relevant for all public authorities): Universities given just six months to 'impact assess' everything