The Equality Act 2006: the gender equality duty

This week Caroline Blackwood of Osborne Clarke begins a series of articles on the Equality Act 2006 with a look at the new 'gender equality duty' on public authorities.

Introduction

The gender equality duty is part of the Equality Act 2006, which received Royal Assent on 16 February 2006, and will come into force on 6 April 2007. The Act will amend the Sex Discrimination Act 1975 to place a statutory duty on all public authorities, when carrying out their functions, to have due regard to:

eliminating unlawful sex discrimination and harassment; and

promoting equality of opportunity between men and women.

Together these requirements are known as the 'general duty' and make up the core of the gender equality duty. This will apply to public authorities in respect of all their functions - as service providers, policy makers and employers. It is not, therefore, confined to employment issues, but has wider-reaching implications for everything that the public sector does.

In February 2006, the Equality Opportunities Commission (EOC) launched a draft Code of Practice (on the EOC website) on the gender equality duty for consultation. The Code will provide guidance to public authorities on how to meet the duty. The consultation closes on 15 May 2006.

The EOC contends that the duty is different from previous sex equality legislation in two crucial respects, namely:

the positive requirement for the organisation itself to take action, rather than waiting for individuals to take cases against it; and

the requirement to act to promote equality, not just to avoid discrimination.

The duty is designed to make gender equality central to the way that public authorities work, building gender equality into organisations' core business thinking and processes. It is described by the EOC as a form of legally enforceable 'gender mainstreaming', which involves systematically identifying and addressing gender equality issues throughout policy development, service design and delivery, monitoring and employment.

Relevance to the private sector

For most private sector organisations, this concept would be fairly radical and it is unlikely that many businesses would voluntarily participate in such a detailed and comprehensive process. However, the reasons for introducing the duty in the public sector apply equally to the private sector - for example, encouraging good industrial relations, retaining and maximising talent across the workforce and avoiding expensive claims. Therefore, the private sector can usefully learn from the best practice example that public authorities will soon be required to follow.

Impact on organisations with public sector involvement

Any private sector organisation that has involvement with the public sector will need to show high standards in relation to gender equality. This would be the case, for example, if a private sector company carried out any public sector functions on a contracted-out basis, or where a private sector company provided any services to the public sector. When making decisions about awarding tenders, public sector authorities will take into account companies' gender policies and procedures, including their implementation and record of success. Private sector companies will, therefore, need to be aware of these issues and their impact on commercial success.

Implementation of the gender equality duty

There will be specific duties to support implementation of the general duty, which will apply to major public authorities. The draft Code of Practice lists these. Public authorities will be required to:

produce and publish an equality scheme identifying their gender equality goals and proposed action to meet them, in consultation with employers and stakeholders;

monitor and review progress;

review the scheme every three years;

develop, publish and regularly review an equal pay policy, including measures to address promotion, development and occupational segregation; and

assess the gender impact of new legislation and major policy developments, and publish their criteria for conducting such impact assessments.

The draft Code contains details on how to meet the gender equality duty in policy development, service design and delivery, and in employment.

Policy development, service delivery and design

In terms of policy development, service delivery and design, gender issues will need to be assessed and acted upon at all stages. The draft Code gives some interesting examples of this in practice, eg when Dublin Buses reviewed its service provision, it took gender issues into account by conducting a survey on the use of buses. It found that women used buses differently to men, making many short trips as well as using them for longer commutes. The bus services were revised to reflect this, providing, for example, cheaper multi-trip fares. Later analysis showed significantly increased bus use, particularly by older women. Subsequent growth in city centre economic activity was believed to be directly linked to the increasing number of people coming into the city centre during the day.

This example provides a useful indication of the potentially radical impact that the gender equality duty may have throughout public sector processes.

Employment

The suggestions for implementation of the gender equality duty in employment are more relevant to HR practitioners and, for those in the private sector, they provide a reminder of many methods of eliminating discrimination and encouraging diversity that are already well known, but not necessarily widely implemented.

The draft Code suggests that there will need to be a cyclical process of data collection, analysis of data, development of an action plan, implementation of the plan and monitoring of outcomes to inform further action. It contains a detailed analysis of the steps that employers can take to ensure gender equality and identifies key employment areas to consider when deciding priorities for action, including:

recruitment (eg consider ways in which jobs at all levels can be opened up to part-time working, job-sharing and flexible working);

occupational segregation (eg if men predominate at higher levels, consider whether this is due to a lack of opportunities for part-time or flexible working in those positions and encourage female role models);

flexible working (eg train managers on how to manage flexible workers and deal with requests for flexible working);

leave for parents and carers (eg ensure that men feel that they can take leave to fulfil their parenting responsibilities as easily as women);

pregnancy and return from maternity leave (eg implement a culture that is positive towards pregnancy and family responsibilities at all levels of management);

sexual and sexist harassment (eg provide line managers with training so they are able to deal with instances of harassment should they occur); and

equal pay (eg conduct an equal pay review and be prepared to act on the results).

Next week's article will look at the establishment of a single Commission for Equality and Human Rights and the changes regarding religion and belief.

Caroline Blackwood is a training and know-how lawyer in the employment, pensions and incentives department at Osborne Clarke (Caroline.Blackwood@osborneclarke.com).

Further information on Osborne Clarke can be accessed at www.osborneclarke.com