The Equality Act 2010: Changes and Challenges for Local Governments

On Aril !" 2010" the Equality #ill received $oyal Assent to %ecome the
Equality Act and" in the rocess" relaced a total of 11& statutory instruments
' including 0( ma)or Acts* This harmonisation is designed to simlify"
streamline and strengthen the la+, giving individuals greater rotection from
unfair discrimination and ma-ing it easier for organisations to understand their
resonsi%ilities to+ards their emloyees and customers*
.hilst the art/1& of the Act has already come in force" the main
rovisions shall %e coming into force in Octo%er 2010* The ma)or changes that
the Act %rings a%out in current equality legislation" relevant to Local
Governments" can %e summed u under the follo+ing headings:/
Socio-economic Duty: 0art 1 of the Act esta%lishes a ne+ u%lic sector duty
geared to+ards addressing socio/economic inequalities* #y means of this ne+
duty the identified u%lic authorities are required to have 1due regard2 to the
1desirability2 of reducing socio/economic disadvantages* This duty relates
secifically to public functions2 as defined and also e3tends to a limited range
of other u%lic authorities that may +or- in artnershi +ith local authorities in
dra+ing u sustaina%le community strategies* The u%lic olicy areas that
might %e addressed in furtherance of this duty could include: health
inequalities, local and regional concentrations of disadvantage, ur%an socio/
economic olarisation, %usiness suort and suort for small firms in derived
areas etcetera*
Single Equality Duty: The Act relaces the e3isting three 0u%lic 4ector 5uties
6 covering race" disa%ility and gender 6 %y a %road 4ingle Equality 5uty that
e3ands the rotection to include: age, disability, gender reassignment,
marriage and civil partnership, pregnancy and maternity, race, religion or
belief, sex and sexual orientation* This duty" along +ith the socio/economic
duty" shall come into force in Aril 2011*
The overarching 7general8 duty +ill %e underinned %y a series of
secific duties* 9uch of the urorted imort of the Act on Local Governments
and County Councils shall" rimarily" %e determined %y the final form and
nature of these secific duties* The Government issued draft secific duties for
England for consultation in :une 200(* ;n :anuary 2010 the Government
u%lished a olicy aer in resonse to the feed%ac- it received from the
consultation* ;t is e3ected that the Government +ill consult on draft
regulations for England in the summer of 2010* ;n case of 4cotland and .ales
it +ill %e done at a later date*
As stated in the olicy aer" the Government +ants a set of specific duties
that are flexible, proportionate and non-bureaucratic2* The olicy/intent is 1to
move away from a detailed legislative description of processes that public
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bodies should follow to take a more flexible approach which focuses on
outcomes the end, not the means2* The Government %elieves that 1a less
prescriptive, more outcome-focused approach to the Equality Duty will not
only allow public bodies more freedom to genuinely mainstream equality and
target their resources on the areas where they can make a difference it should
also result in smarter, more efficient and more effective public services for all2*
The Government is of the vie+ it is 1not appropriate to prescribe in legislation
a particular set of steps whether related to formal equality impact assessment
processes or to staff training which all bodies, whatever their si!e or nature
of their business, need to take to achieve equality outcomes2*
Public Procurement: The Equality 5uty requires u%lic %odies to give due
regard to the need to tac-le discrimination and romote equality through
rocurement using their enormous urchasing o+er of more than <220
#illion=year*
Transparency: The Act rovides for ma-ing it mandatory on u%lic %odies to
reort" as emloyers" on: gender ay ga, ethnic minority emloyment and
disa%ility emloyment* The current legislation requires u%lication of only
ethnic minority emloyment* The Act rovides for the ay transarency
regulations to %e e3tended to the voluntary and the rivate sector in 201>" if
needed*
No Individual Rights nder Public Sector Duties: The Act does not allo+ an
individual to ta-e legal action claiming damages for %reach of a statutory duty*
?o+ever" decisions of the listed u%lic %odies could %e su%)ect to )udicial
revie+*
Positive !ction: in a radical move" the Act no+ allo+s an emloyer or service
rovider to ta-e ositive action so as to ena%le e3isting or otential emloyees
or customers to overcome or minimise a disadvantage=%arrier arising from a
rotected characteristic*
"roader !ge Discrimination Protection: ;mroving and e3anding uon the
current legislation' +hich de%ars age discrimination +ithin offices' the Act
also rovides for removal of age discrimination outside the office in rovision
of goods" services" facilities and u%lic functions* ?o+ever" this %an on age
discrimination shall not come in force un till 2012*
Strengthening Protection #rom Discrimination #or Disabled People: The
Act contains a ne+ rovision aimed at re/esta%lishing an aroriate %alance
%et+een ena%ling a disa%led erson to ma-e out a case of e3eriencing a
detriment +hich arises 1because of2 his or her disa%ility* The clause is meant to
reverse the negative fallout" on disa%led eole" of the ?ouse of Lords
)udgment and in "ayor and #urgesses of the $ondon #orough of $ewisham
$#% v "alcolm case* $elacing the term on the grounds of& +ith the term
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1because of2 the Act %roadens the scoe of rotection availa%le for the disa%led
ersons*
Dual Discrimination: The Act e3tends the circumstances in +hich a erson is
rotected against discrimination %y allo+ing eole to ma-e claims if they are
directly discriminated against %ecause of a com%ination of t+o relevant
rotected characteristics* The Act also recognises 1associative2 and
1perceptive2 discrimination: individuals are rotected if they suffer
discrimination due their association +ith a erson from any rotected strain or
if they are erceived to %e so*
$ider Employment Tribunal Po%ers: The Act emo+ers the emloyment
tri%unals to ma-e recommendations to resondent emloyers @+ho lose any
discrimination claimsA to ta-e %road stes to remedy the root cause@sA, this shall
%e over and a%ove the relief granted to the individual claimant* This single
change may" in the long run" rove to %e the most imortant change" as it can
lead to su%sequent relevant and focussed systemic changes that hel advance
equality at +or- lace*
"urden o# Proo#: The Act" uniformly across all rotected strains" transfers the
%urden of roof to the defendant once laintiff esta%lishes a case prima fascie*
The only e3cetion to this rule is if the roceedings relate to a criminal offence
under this Act*
&ther 'hanges: The Act also amends family roerty la+ to remove
discriminatory rovisions and rovides additional statutory roerty rights for
civil artners in England and .ales and the Civil 0artnershi Act 200B to
remove the rohi%ition on civil artnershis %eing registered in religious
remises* The Act also e3tends" +ith a sun/set clause for 20>0" the ermission
for olitical arties to use +omen/only shortlists for election candidates*
The 'hallenges #or (ocal )overnments* in Particular the 'ounty 'ouncils
The real fall out" at oerational level" for the County Councils li-e
Corthamtonshire County Council can only %e fully gauged after the secondary
legislation is finalised* ;t is the 0u%lic 4ector 5uties that determine the
7equality legislation o%ligations8 for Councils in their day to day %usiness*
Therefore" it +ill deend on the e3act form" content and nature of the 4ecific
5uties are laid do+n in secondary legislation* Going %y the rocess till no+" it
seems that the Government is all set to do a+ay +ith the current rescritive
model and give Local Governments @LGsA a considera%le freedom in not only
determining and setting their o+n equality goals %ut also grant them a%solute
freedom to choose the +ay=manner to e3ecute their equality +or-* Thus" there
+ill %e no mandatory o%ligation to roduce equality schemes" action lans"
imact/assessments etcetera*

By: FAKirmani Page >
.hile this may sound very agreea%le" it %rings in the %iggest challenge
for the LGs" esecially the County CouncilsD ;n a%sence of mandatory
requirements" it shall %e very difficult for even the +ell meaning 7equality
teams8 to garner suort and resources" for equality +or-" from the relevant
quarters of a council* Considering the fact that in site of %eing mandatory"
currently" the equality +or- in ma)ority of Councils lies in sham%lesE The
model" aarently roosed for 4ecific 5uties in secondary legislation" +ill
need a strong %ac-/u=%uy/out from senior management including the
Councillors to succeed* The first and the foremost challenge for Councils"
therefore" +ill %e to generate the requisite motivation and managerial/+ill to
carry for+ard the equalities/+or-*
The second imortant challenge shall %e around the u%lic duty for
rocurement* 0rocurement e3ercises are legally comle3 +ith %oth domestic
and EF rules to adhere to* As er EF rules the u%lic sector urchasing
decisions have to %e %ased on value for money achieved through cometition*
The challenge" therefore" +ill %e as to ho+ +ill the councils marry the %est
value +ith equality considerationsD
Another challenge +ill %e the ne+ socio/economic duty* ;t %eing a ne+
initiative" the Councils have no e3erience of dealing +ith it* 4o" it +ill %e a
challenge to +or- out the modus oerandi for the e3ecution and the
organisational resources for the discharge of this ne+ duty*
Get other challenge might %e associated +ith the alication of the
7ositive action8* ;t states that if t+o ersons have same qualifications the
Council may choose the one from the equality grous* Co+" +hat does
qualification meanD ;s it t+o ersons having similar qualifications" say"
master8s degrees" or is it t+o ersons having same cometencies8 qualifications
for the )o%* ;n case it is former" it may involve choosing a less cometent
erson over a more cometent erson @therefore discriminationA* ;f it involves
latter" then this ositive action +ill never ta-e lace as it is ne3t to imossi%le
to have a situation +here you have t+o candidates +ith e3actly same
cometencies8 qualifications* Therefore" it +ill %e a challenge to see ho+
Councils +ill go a%out using their discretion of ositive choice*

Hinally" there +ill %e the general challenge of coing +ith the 7change8
that this Act %rings along* Li-e any other organisational/change this +ill
generate a lot of 7organisational/stress8* This may entail changing
organisational rocesses" lans" eole etc* ;t shall" therefore" %e another ma)or
challenge*
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