Out-Law Guide | 26 Oct 2010 | 9:54 am | 12 min. read
The Government proposes that universities be given just six months to carry out impact assessments of their entire policies and practices to comply with the single equality duty which was introduced by the Equality Act.
This guide was written by Chris Mordue, Head of the Universities Employment Team at Pinsent Masons, the law firm behind OUT-LAW.COM. It explains the proposals, which are the subject of a consultation due to close on 10th November 2010. Chris argues that the proposals are deeply flawed.
Do you have the time and resources to carry out impact assessments of your university's entire policies and practices, for all protected equality strands, before 4th April next year? That is the massive compliance challenge facing the sector under draft regulations which would introduce specific obligations on public authorities to take action to further the new public sector single equality duty.
The proposals are currently subject to a Government consultation exercise which ends on 10th November. In our view, the consultation paper and draft legislation appear to seriously underestimate the time and effort that will be required to comply with these new equality obligations.
That problem is exacerbated by the fact that the legislation is still in draft form – it may change as a result of consultation and will not be confirmed in its final form until February 2011 at the earliest.
This presents universities with an uncomfortable dilemma. Do you start work on this impact assessment exercise now, which would be necessary to have any chance of meeting the proposed deadline? Or do you wait to see whether these draft Regulations are changed to relax the deadline or lighten the compliance burden?
In addition to the impact assessment requirement, universities will also need to publish workforce data on equality issues, again by 4th April 2011.
The extent of this obligation is very unclear at present. There are no details in the Regulations themselves and it appears that the Equality and Human Rights Commission (EHRC) will be issuing guidance or a code of practice – itself likely to be subject to consultation – which will flesh out this duty. This data, and indeed the equality impact assessments, will also need to be published in a way which meets draft (that word again!) transparency guidelines, but what this actually means in practice is not yet clear.
In short, our view is that the draft Regulations fail to meet a key requirement of any new legislation – namely that those affected are given clear and certain advance warning of what the law will require and that they have enough time before the new rules take effect to take steps to avoid being in breach of the law the moment it comes into force.
The sector should be responding vigorously to the consultation paper, seeking greater clarity and a more reasonable period of time to prepare.
The Equality Act introduces a new single equality duty which comes into force on 4th April 2011. This replaces the existing public equality duties in relation to race, gender and disability. The single equality duty covers all equality strands or protected characteristics, namely: race, disability, sex, age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment.
The single equality duty follows the format of the existing race, sex and disability duties by having two separate parts: a general overarching duty to eliminate discrimination and promote equality; and specific duties that support the general duty.
The general duty – which is not covered by the current consultation exercise as it is already enacted in section 149 of the Equality Act – requires a public authority "to have due regard, in the exercise of its functions, to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."
The proposed specific duties are covered by the current consultation exercise. They have two elements. The first is an obligation to publish information relating to equality. The second is a duty to set, and report on, equality objectives. This second obligation appears very "light touch" but the first sets institutions a Herculean compliance task.
The draft Regulations would require public authorities to publish information relevant to their performance of the general equality duty. Without limiting that requirement (but also begging the question of what else needs to be published) the draft Regulations state that this information "shall in particular include
(a) information relating to the protected characteristics of its employees, if the public authority has 150 employees or more;
(b) assessments of the impact of its policies and practices, and the likely impact of its proposed policies and practices, on the furtherance of the three aims set out in the general duty, i.e.
(c) information that it took into account when it made these impact assessments; and
(d) details of any engagement that it undertook with persons whom it considered to have an interest in furthering the aims set out in the general duty."
This information has to be published by 4th April 2011 and in a way that meets the data transparency standards described below. It must then be updated at intervals of not less than one year.
The primary difficulty with this obligation is the need to carry out equality impact assessments of all of your "policies and practices", actual and proposed, and for every equality strand, within the next six months.
There is no definition of "policies and practices" in the draft Regulations. On the face of it, that is a stunning lack of clarity, but it must be acknowledged that there is no such definition in the existing specific duties for sex, race and disability either.
However, under those existing duties, Codes of Practice issued by the EHRC have defined the term "policies and practices" in the widest terms. "Policies and practices are very broad terms, and cover every aspect of a public authority's activities and functions," say the Codes.
It appears that under the new rules, the EHRC will again be responsible for drafting Codes which explain what the Regulations require (rather than the Government doing this itself in its legislation). We can expect the EHRC's current definition of "policies and practices" to be carried over into the new specific duties.
On that basis, the scope of the impact assessment is enormous. Every single aspect of a university's activities will be covered: policies and practices affecting staff and prospective staff, students and prospective students, 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 – universities may currently lack the necessary quality of data to enable meaningful impact assessment to take place.
There are indications in the consultation paper that, at best, the Government does not actually intend to impose a duty as onerous as this or, at worst, has seriously misjudged what public authorities must do to comply.
The main text of the consultation paper offers no comment or clue about how extensive the obligation to produce impact assessments is intended to be. However, Annex 6 of the consultation paper, which sets out the anticipated regulatory impact of the new legislation, refers to public bodies carrying out assessments of "the impact of their policies in the design of key policy and service delivery initiatives".
If the duty to carry out impact assessments is intended to be limited in that way, then one might expect the Regulations to say so. They don't. In our view, the phrase "policies and practices" suggests something far more comprehensive, as reflected in the existing EHRC Code.
It is also notable that the estimated cost to the public sector of complying with these new rules, set out in Annex 6, omits the cost of carrying out this initial wave of impact assessments.
The one-off costs are expressed to be the cost of an equality officer/manager familiarising him/herself with the legislation, producing an estimated time cost per public authority of 1.5 – 2 days per organisation.
While the estimated recurring costs of compliance do not address universities expressly, estimates are given for local authorities and NHS Trusts. These envisage that each organisation will have to assess 15 to 20 changes per year to key policy and service delivery initiatives, at a time cost of one analyst day per assessment.
Leaving aside the question of whether the full impact assessment process – gathering data, analysing, writing up and reviewing – can be expressed as a day's work by a single employee, it is clear that this is an estimate of the cost of future impact assessments, not the immediate need to impact assess every single policy and practice before next April. The only conclusion that can be drawn is that this initial cost is simply not included in the calculations at all, and that as a result the cost to the public sector is massively underestimated.
Our experience is that the process of impact assessment is neither quick nor easy. Many institutions are still unsure about what is actually required – and certainly we have seen many disputes between institutions and trade unions over what needs to be assessed, when, how and in what detail. Further guidance from the EHRC would probably be welcomed but it is not clear when this will become available.
Another area of real uncertainty is the obligation to publish workforce data on equality. Neither the consultation paper nor the draft Regulations say anything much about what information actually needs to be published or what if anything institutions will need to do to gather that information before April.
The consultation paper states that the EHRC's Code of Practice and guidance "will set out what workforce equality data should be published by different types of public bodies, and we would expect this to include data on important inequalities such as the gender pay gap, the proportion of staff from ethnic minority communities and the distribution of disabled employees throughout an organisation’s structure."
The EHRC seems to have been handed the task not just of issuing codes of practice or guidance but of actually defining the substantive legal obligations that they will then enforce. Further, with the clock ticking down to 4th April 2011, there is nothing that universities can meaningfully do to prepare for compliance because nothing of substance is known about what will have to be published.
The workforce equality data and impact assessments will have to be published in a manner compatible with the Public Data Principles set out by the Public Sector Transparency Board established by the Prime Minister. These are again in draft form at present but appear at Annex 3 of the consultation paper. What they mean in practice is another question, but they are summarised in the consultation paper as including the following principles:
The Government will publish the results of consultation within three months of 10th November. Presumably the final form of the Regulations will not be available until then, i.e. February 2011.
The EHRC consultation timetable is not yet published. The consultation paper states that the EHRC will produce practical guidance 12 weeks before the Regulations come into force, to explain the requirements of the general and specific duties in more detail and set out what different types and sizes of public bodies need to do to comply.
This puts universities in a dilemma. If you wait until February to begin the process of impact assessing everything your institution does, you will have less than two months to comply and are essentially guaranteed to be in default when the new laws come into force. Even if you start now, the compliance task looks unachievable – but you also risk diverting valuable resource and time striving to meet obligations which are currently imprecise and possibly subject to change, in terms of substance and timetable.
The existing race, gender and disability equality duties require public authorities to adopt equality schemes and a detailed action plan for implementing the relevant public equality duties.
In comparison, the consultation paper and draft Regulations propose a very light touch approach to the single equality duty. The requirement will be to prepare and publish – by 2nd April 2012 – one or more objectives which the public authority reasonably thinks that it should achieve in order to further one or more of the aims set out in paragraphs (a) to (c) of the section 149(1) duty (see above).
The objectives must be specific and measurable and set out how progress towards achieving them will be measured. The equality information and impact assessments have to be considered before the objectives are determined. After no more than four years, the process has to be repeated with a new objective or objectives being set.
Under this approach, there will be no requirement to produce equality schemes at all. Indeed, a single equality objective will suffice. You should note that the objective will have to address one of the following: eliminating unlawful discrimination, promoting equality of opportunity or fostering good relations between different protected groups.
What is not clear, however, is whether every single equality strand needs to be addressed by the chosen objective. That seems to follow from the fact that the objective must address an element of the general duty that applies to all protected characteristics; but the consultation paper is still ambiguous on the point.
While this element of the specific duties is light touch, it is important to remember that the general duty itself still requires public authorities to have due regard to the equality objectives set out above in the exercise of all of their functions. The specific duty to identify at least one equality objective in no way dilutes that overarching requirement.
The specific duties will be enforced by the EHRC, as they are currently. However, the rationale for the duty to publish impact assessments and other equality data is firmly expressed in the consultation paper as a move designed to promote transparency and democratic accountability. The Government intends that interested parties or individuals will be able to monitor compliance with the law and, where necessary, challenge public authorities on compliance, although they will not have power to take legal action to enforce the duties.
Universities can expect that equality groups, staff, students and trade unions will all scrutinise compliance with these obligations from the moment that the Regulations take effect. Our experience in relation to restructuring exercises, major organisational changes and changes to academic provision suggests 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.
The draft Regulations seem to set the sector an impossible challenge. It is doubtful that every policy and practice could be impact assessed before 4th April 2011.
While the EHRC may not immediately begin enforcement action, there is clearly scope for universities to be publicly challenged as being in breach of these equality obligations from the very moment they come into force. For that to happen simply because the sector has been set an insurmountable challenge by Government – and one which the Government appears not to fully appreciate – would be hugely unsatisfactory.
The equality obligations being set for the sector need further clarification – a fact acknowledged in the consultation paper itself. On the present timetable, that clarification will come far too late to allow universities to actually comply before the new laws take effect.
The resource implications, at a time when the sector already faces some fundamental challenges and significant changes, have clearly been underestimated. At the very least, the proposed implementation date for these obligations needs to be pushed back to avoid the manifest injustice of institutions being in breach of the law only because they have been given insufficient time to properly understand what is required and to act.
The consultation exercise gives you an opportunity to change these proposals. You need to take it and make sure that your voice is heard. For help with preparing your consultation response, feel free to get in touch.