Equality Act 2006: a guide

The Equality Act 2006, establishing a Commission for Equality and Human Rights, received royal assent on 16 February 2006. Michael Rubenstein takes an in-depth look.

The Act also:

  • alters the definition of "religion" or "belief" in the Employment Equality (Religion or Belief) Regulations 2003 so as specifically to protect "lack of belief";
  • extends the prohibition on discrimination on grounds of religion or belief to the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions;
  • confers powers for a similar prohibition on sexual orientation discrimination to be introduced by regulation;
  • prohibits sex discrimination in the exercise of public functions; and
  • creates a "gender duty" on public authorities requiring them to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between women and men.
  • Although the basic structure of the legislation remained largely the same as the Bill that was introduced (Equality Bill reintroduced), there were a number of significant changes made as the Bill went through parliament.

    Commission for Equality and Human Rights

    The Commission for Equality and Human Rights (CEHR) will take over the functions of the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC). The CEHR will also have responsibility in respect of discrimination on grounds of religion or belief, sexual orientation and age. The commission will have responsibility for the promotion of human rights as well.

    The CEHR will be established in October 2007 for all areas except those for which the CRE is responsible. The CRE will remain independent until 31 March 2009, when its responsibilities will transfer to the CEHR.

    According to the government, the new commission will have an annual budget of £70 million. This represents a 43% increase on the total existing budgets of the three commissions.

    The location of the commission will be split between Manchester and London. The minister for women and equality, Meg Munn, said: "We expect that the Manchester site will be the larger but that there will be a significant presence in London." There will also be offices in Glasgow and Cardiff.

    Duties

    The CEHR's mission requires it to exercise its functions "with a view to encouraging and supporting the development of a society in which -

    (a) people's ability to achieve their potential is not limited by prejudice or discrimination;

    (b) there is respect for, and protection of, each individual's human rights;

    (c) there is respect for the dignity and worth of each individual;

    (d) each individual has an equal opportunity to participate in society; and

    (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights."

    Munn pointed out during the parliamentary debate that, "in ensuring that everyone has an equal opportunity to participate in society, the commission goes beyond the traditional understanding of equality and fair treatment."

    "Equality" and "diversity" are central concepts for the CEHR. "Diversity" is defined by the Act as meaning "the fact that individuals are different". "Equality" is defined as "equality between individuals". According to Munn: "Equality … means recognising that groups of individuals may experience different treatment when compared with other individuals because of particular attributes that they have and that this comparison may define the action necessary to achieve equality."

    The commission has a specific duty to "promote understanding of the importance of equality and diversity" and "encourage good practice in relation to equality and diversity". Note that equality and diversity in this respect are not defined by reference to existing discrimination statutes.

    The CEHR is also asked to "promote equality of opportunity", "promote the awareness and understanding of rights under the equality enactments", "enforce the equality enactments", "work towards the elimination of unlawful discrimination" and to "work towards the elimination of unlawful harassment".

    The Act specifically acknowledges that the law relating to disability discrimination is uniquely asymmetrical. It provides that: "In promoting equality of opportunity between disabled persons and others, the commission may, in particular, promote the favourable treatment of disabled persons."

    Strategic plan

    The commission will have a duty to publish a strategic plan setting out its planned activities, a timetable and its priorities. This is to be reviewed at least once every three years.

    Monitoring progress

    The commission is also required to publish progress reports on relevant changes in society, targets for the purpose of encouraging and supporting the development of a society that meets the aims expressed in the general duty ("outcomes"), and factors by reference to which progress towards these results may be measured ("indicators"). Such a "state of the nation" report is to be issued within three years of this part of the Act coming into force, and no later than every three years thereafter.

    Groups

    The CEHR is given the duty to promote understanding of the importance of good relations, and to encourage good relations, between members of different groups, and "between groups and others". It is also to "work towards the elimination of prejudice against, hatred of and hostility towards members of groups", and work towards "enabling members of groups to participate in society".

    The concept of "groups" replaces that of "communities" in the original Bill. It is defined as a group or class of persons who share a common attribute in respect of age, disability, gender, reassignment of gender, race, religion or belief, or sexual orientation. The explanatory notes point out that this includes smaller groups that may share an attribute in addition to the one by which that group is defined, such as Muslim women, or black and minority ethnic lesbians and gay men, or young disabled people.

    The Act requires the commission to have particular regard to the importance of exercising the powers conferred on it in relation to groups defined by reference to race, religion or belief. This special status recognises the network of local racial equality councils supported by the CRE. The government has guaranteed support for local racial equality work.

    Enforcement powers

    The CEHR's investigative and enforcement powers are broadly modelled on the existing powers of the DRC, as set out in the Disability Rights Commission Act 1999, but are stronger in some respects than the powers of any of the three existing enforcement agencies.

    The commission will be able to carry out an investigation into whether or not a person has committed an unlawful act. The statute specifies that such an investigation may be conducted by the CEHR "only if it suspects that the person concerned may have committed an unlawful act". According to Lady Ashton, the parliamentary under-secretary of state at the Department for Constitutional Affairs: "The commission cannot form a suspicion without the grounds to do so. Combined with its public law duty to act reasonably, the word 'suspect' suffices to imply a reasonable suspicion based on specific grounds … it does not equate to a belief as high as a civil burden of proof, but there must be material before the commission sufficient to raise a reasonable suspicion that the named person may have committed acts of the kind that it is proposed to investigate. The commission must be able to justify its decision to investigate as reasonable and fair, and it would be required to produce the evidence it based the decision on if challenged."

    She added that it would be expected that the evidence would include "such things as material that flows from an inquiry; material that has been put before a court or a tribunal that may have led to a decision, or the case may have settled and the proceedings withdrawn; information that is brought to the attention of the commission through helpline or advice services. A suspicion based on a single unsubstantiated complaint, for example, would be unlikely to be defensible, but a number of complaints over a long period of time, combined for example with a number of settled cases of which the commission is aware, is likely to be sufficient."

    Action plans

    The unlawful act notice may require the person concerned to "prepare an action plan for the purpose of avoiding repetition or continuation of the unlawful act" The commission can make recommendations as to what should be in that plan. The organisation concerned must submit a draft action plan; the commission will either approve it, or serve a further notice stating that the plan is inadequate and to be revised. The theory is that it is for the discriminator to "own" the solution to the problem by considering the circumstances in which the discrimination has taken and devising ways of ensuring that it does not recur.

    If the organisation does not submit a draft plan, the CEHR can apply to a county court for an order requiring submission of a draft plan. Failure to comply with such an order will be an offence.

    Application for an injunction

    Unlike the existing commissions, the CEHR will be able to apply to a county court (or to a sheriff in Scotland) for an order to stop a person discriminating. The legislation was strengthened in the House of Lords so as to specify that "if the commission thinks that a person is likely to commit an unlawful act", it may apply "for an injunction restraining the person from committing act". Lady Ashton explained: "The major advantage of these amendments is that they enable the commission to bring proceedings directly and immediately once there is sufficient evidence that, unless restrained, a person is likely to discriminate. While the current legislation requires that a person has already discriminated … [the new provisions] … impose no such restriction. The can be used against a person whom the commission thinks will discriminate, even though there is not an established track record in that regard."

    Assistance

    The commission will be given power to assist an individual who has become party to legal proceedings relating, wholly or partly, to the "equality enactments". Where proceedings relate partly to a provision of the equality enactments and partly to other matters, assistance may be given in respect of any aspect of the proceedings while any provision of the equality enactments continues to be in issue, but once there is no longer a discrimination issue, assistance may not be continued.

    This means that, where someone claims that they been unfairly dismissed and discriminated against on grounds of race, the CEHR will be able to pay for legal representation, for example. If the race discrimination complaint is settled during the proceedings, however, no further assistance can be given. The Act does contain powers for the secretary of state to make an order in the future so as allow cases to be taken forward by the commission even if the equality issues were dropped.

    "Equality enactments" are defined relatively broadly, to include relevant provisions of European Community law. This, according to Lady Ashton, will "enable the commission to support proceedings alleging that domestic legislation is incompatible with EC law in equality between men and women, or EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This covers provisions under articles 13 and 141 of the EC treaty, such as the Equal Treatment Directive, the Equal Pay Directive and the race and framework Directives based on article 13." The government, however, resisted an amendment supported by the EOC that would have extended the CEHR's remit to cover employment rights concerned with maternity leave, parental leave, flexible working, termination of employment, redundancy, protection from victimisation and part-time working. Munn claimed: "It would be inappropriate to extend the regulatory role to areas of legislation that go beyond discrimination, because it would create a risk that the new commission would lose focus on its core role, which is centred on equality and human rights."

    Intervention

    The strategy, developed by the DRC, of seeking to intervene as a third party in key test cases, rather than acting on behalf of a claimant, has been highly successful (see EOR 138) and is now being followed by the other statutory commissions. The Equality Act gives the CEHR an express capacity to "intervene in legal proceedings ... if it appears to the commission that the proceedings are relevant to a matter in connection with which the commission has a function".

    Enforcing public sector duties

    The CEHR will also have new powers to require a public authority to comply with its public sector duties for disability, race and gender. In respect of breach of a public sector specific duty, the CEHR will be able to issue a compliance notice requiring the public authority to comply and to provide within 28 days written information of steps that it has taken and/or that it proposes to take to comply with the duty. Before a compliance notice is issued in respect of a breach of a public sector general duty, however, the CEHR will have to conduct an assessment. This could lead to recommendations for improvement. In either case, the CEHR will be able to enforce a compliance notice by court order.

    Human rights

    The Act requires the CEHR to "promote understanding of the importance of human rights", "encourage good practice in relation to human rights", "promote awareness, understanding and protection of human rights" and "encourage public authorities to comply with s.6 of the Human Rights Act 1998".

    The government's explanatory notes point out that, in relation to the more general duties under this clause: "The CEHR will not be limited to dealing with public authorities. It will, for example, also be able to provide encouragement to the voluntary and commercial sectors to adopt appropriate human rights standards as the basis of the relationship with their clients and customers in the provision of their services."

    The commission's human rights remit also includes the conduct of general inquiries, bringing judicial review applications in its own name and intervening as a third party in Human Rights Act cases.

    Structure

    The CEHR will have between 10 and 15 commissioners, of whom one must be (or have been) a disabled person. The government resisted amendments to the legislation that would have required a minimum number of black and female commissioners.

    The CEHR will be able to establish advisory or decision-making committees, which can be made up of commissioners, staff and external members. Decision-making committees can have any function delegated to them.

    Special provisions have been made for a disability committee as a decision-making committee. The disability committee will be empowered to give advice and information, issue codes of practice, offer legal assistance and conciliation as appropriate, institute judicial reviews and monitor the law. At least half of its members will be people who have, or have had, a disability. The Act provides that the commission's functions as regards equality and diversity are to be delegated to this committee, in so far as they relate to disability matters, for at least five years, when its continuation will be reviewed. Following this review, it will be open to the secretary of state to decide for what further minimum time a disability committee should continue, although after that it will be open to the commission itself to establish such a committee on a permanent basis. The DRC has welcomed these provisions as "vital to disabled people's confidence in the ability of the CEHR to work effectively to eradicate the widespread discrimination and exclusion they face".

    The government defeated amendments to the legislation to require the CEHR to establish a race discrimination committee, but Munn told parliament: "I have no doubt that the commission will establish a committee that will take forward those priorities on race relations, and I strongly encourage it to do so at an early stage. It is simply not possible for it to ignore the priorities and concerns of black and minority ethnic communities, because they, along with others, will be the authors and architects of the commission's strategic plan."

    Speaking to the House of Commons on the Bill's third reading, the secretary of state for trade and industry, Alan Johnson, said: "The passing of the Bill does not determine how the commission will run, but it is the start of a new conversation and process in which black and minority ethnic communities will be fully involved. We are committed to an orderly transfer of the race agenda and, in cooperation with the Home Office, we will immediately initiate a work stream that will directly involve members of the black and minority ethnic community and others, in exploring how, for example, the race equality and good relations functions of the new commission could be framed, including its important focus on race and faith communities. In this way, we will strive to make sure that race and faith communities have full confidence in the new commission and that the commission's governance structures and strategic plan are designed in a way that reflects their concerns."

    Independence

    Like the existing equality commissions, the CEHR will be a non-departmental public body. During the course of the Act's passage through parliament, a number of changes were made to the government's original proposals to bolster the commission's independence from the secretary of state.

    Thus, the legislation as originally drafted provided for the secretary of state to pay to the commission such sums as appear to the secretary of state "appropriate" for the purpose of enabling the commission to perform its functions. "Appropriate" was changed to "reasonably sufficient". Other amendments made clear that the secretary of state will be able to make appointments to the CEHR only based on merit unless there was some other special reason for doing so, and removed the power of the secretary of state to direct the CEHR to conduct inquiries or investigations.

    Religious discrimination

    The Equality Act makes changes to the Employment Equality (Religion or Belief) Regulations 2003, as well as prohibiting discrimination on grounds of "religion or belief" in the provision of goods, facilities and services, education, the use and disposal of premises and the exercise of public functions.

    New employment discrimination definition

    The Act contains a new definition of "religion" and "belief" for the purposes of discrimination by service providers, and that same extended definition will replace the existing definition in the Employment Equality (Religion or Belief) Regulations 2003.

    Those Regulations (New Discrimination Regulations Part 2: Race, religion and sexual orientation) specify that "religion or belief" means: "any religion, religious belief, or similar philosophical belief".

    The new definition substitutes the following: "In these Regulations -

    (a) 'religion' means any religion,

    (b) 'belief' means any religious or philosophical belief,

    (c) a reference to religion includes a reference to lack of religion, and

    (d) a reference to belief includes a reference to lack of belief."

    The Department of Trade and Industry's (DTI) explanatory notes to the Equality Act link the "broad" definition to the guarantee of freedom of religion in art. 9 of the European Convention on Human Rights. The notes point out: "The main limitation on what constitutes a 'religion' for the purposes of article 9 of the ECHR is that it must have a clear structure and belief system."

    There are two notable changes, however, from the definition in the 2003 Regulations. First, the requirement that a philosophical belief must be "similar" to a religious belief has been removed. The DTI explanatory notes to the 2003 Regulations said that the phrase "similar philosophical belief" "does not include any philosophical or political belief unless it is similar to a religious belief". However, the Framework Employment Directive requires member states to make it unlawful to discriminate on grounds of "religion or belief", and does not use the word "similar".

    Explaining the change, Lady Scotland, the minister of state at the Home Office, set out the government's view that "the word 'similar' added nothing and was, therefore, redundant. This is because the term 'philosophical belief' will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief … but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights."

    This remains to be seen. Lady Scotland notwithstanding, a tribunal construing the new definition is likely to think that the change has more significance than the omission of a redundant word. In Equality Bill reintroduced, we suggested that the change in the definition may bring within the scope of the protection some political beliefs, especially those that shape a person's way of life or perception of the world. Pacifism and veganism are obvious examples but, depending on the facts, discrimination against someone because they are an animal rights activist or an ardent hunt supporter might also now fall within the scope of the legislation.

    Is support for a political party necessarily outside the new definition? The most pressing question is whether someone who is unfavourably treated because of their support, membership of or activities in the British National Party (BNP) could claim discrimination on grounds of "belief". Lady Scotland said that in Baggs v Fudge "it was shown that a belief in the political views of the BNP should not be considered a belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. Baggs, however, was a non-binding employment tribunal decision. In any event, in the case of the BNP, it may not be easy to disentangle membership and philosophy, and the particular grounds for the less favourable treatment. Is the reason for the treatment that the employee joined or belonged to the BNP, or is it that the person subscribed to the BNP's white supremacist views? If the latter, are such views clearly not a "philosophical belief"? Some further guidance may be given by the Court of Appeal when it hears Redfearn v Serco Ltd t/a West Yorkshire Transport Service (EOR 146), although that claim by a BNP activist was brought as a claim of race discrimination rather than discrimination on grounds of philosophical belief.

    Lack of belief covered

    The second change specifically protects non-believers. The definition of "religion" and "belief" will now explicitly specify that "a reference to religion includes a reference to lack of religion" and "a reference to belief includes a reference to lack of belief". This refers not just to a lack of belief generally, but to a lack of a particular belief. Therefore, it makes clear that a person is protected from being discriminated against because they do not share the religion, or a particular belief, of the discriminating employer.

    The Employment Equality (Religion or Belief) Regulations 2003 made no reference to lack of religion or lack of belief, although the DTI's explanatory notes assert that this is also covered, and the same point was made when the Regulations were being debated in parliament. The DTI said: "References to 'religious belief'... include reference to an individual's belief structure involving the absence of particular beliefs because these are two sides of the same coin ... For example, if a Christian employer refuses an individual a job because he is not Christian, regardless of whether he is Muslim, Hindu, atheist (etc), that would be direct discrimination on grounds of the individual's religious belief, which can be described as 'non-Christian'. It is not necessary to identify the individual as an atheist or a Hindu for the purposes of the Regulations in such circumstances if he can be identified as a 'non-Christian'. The same is true of persons who might describe themselves as 'unconcerned' by religious beliefs, or 'unsure' of them."

    Whatever the reason for the absence of an explicit reference to absence of belief in the 2003 Regulations, they have now been amended. As a result, they will cover someone who is discriminated against because they do not share the discriminator's religious or philosophical views.

    Definition of discrimination

    In parallel with the new right not to be discriminated against on grounds of religion or belief in respect of access to goods, facilities and services, there is also a change to the definition of direct discrimination in reg. 3(1) of the 2003 Regulations. This currently provides: "A person ('A') discriminates against another person ('B') if - (a) on grounds of religion or belief A treats B less favourably than he treats or would treat other persons." It then goes on to provide in reg. 3(2) that discrimination on grounds of religion or belief "does not include A's religion or belief", ie the religion or belief of the discriminator.

    Regulation 3(2) has now been repealed and the definition in reg. 3(1)(a) has been modified to read: "… on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat other persons".

    The explanatory notes state: "direct discrimination can occur even if it is not person B's religion or belief, but another person's religion or belief, which constitutes the grounds for discrimination … However, it does not apply where the less favourable treatment occurs solely on grounds of A's religion or belief - for example where A feels motivated to take particular action because of what his religion or belief requires. Additionally, subsection (1) clarifies that person A will still have unlawfully discriminated, even if they subscribe to the same religion or belief as that of the victim of discrimination." This will apply where there is discrimination between sects of the same religion, such as where an orthodox Jew discriminates against a liberal or reform Jew on the grounds that they were not religious enough.

    Note that the DTI has now acknowledged that the protection against discrimination on grounds of religion or belief does not apply to cases where the discrimination is motivated by the beliefs of the employer or service provider, rather than the belief (or lack of belief) of the person discriminated against. Thus, these Regulations still do not provide a remedy where a Muslim employer refuses to employ a gay person because of the employer's religious views or where a Roman Catholic employer, because of his beliefs, dismisses an unmarried female employee who has become pregnant (although there may be claims under the Sexual Orientation Regulations and Sex Discrimination Act respectively in those cases).

    Access to goods, facilities and services

    The main thrust of the Act, so far as discrimination on grounds of religion or belief is concerned, is to make it unlawful to discriminate in the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions. According to the Lord Chancellor, this "remedies the anomaly whereby members of some religions are protected against discrimination in the provision of goods, facilities and services, but members of other religion or belief groups are not". Lady Scotland commented that "the Race Relations Act already provides protection to Jews and Sikhs, and addressing that anomaly is one of the major reasons" for this part of the legislation.

    The main "beneficiaries" of the new rights will be Muslims, although the government's explanations can be regarded as an oversimplification of the correct legal position. Jews and Sikhs are not protected under the Race Relations Act against discrimination on grounds of their religion or belief. They are protected against discrimination on grounds of being members of an ethnic group. To the extent that Muslims constitute an ethnic group or a group defined by national origins, they are also protected under the Race Relations Act, as demonstrated by cases such as JH Walker Ltd v Hussain (EOR 66), in which Muslim employees from the Indian subcontinent were held to have been indirectly discriminated against when they were disciplined for taking a day off work to celebrate Eid.

    Muslims who are discriminated against on grounds of their religion or belief, as opposed to their ethnicity, in respect of access to goods, facilities and services are now given protection; so are Jews and Sikhs who are discriminated against on grounds of their religion or belief.

    These provisions are expected to come into force in October 2006.

    Sexual orientation

    At the third reading stage in the House of Lords, the government accepted an amendment to the Bill giving the secretary of state broad powers to make Regulations that prohibit sexual orientation discrimination (including indirect discrimination, victimisation and harassment). The Regulations are expected to parallel those provided for in the Equality Act in respect of discrimination on grounds of religion or belief. That means that they will prohibit, either generally or in specified circumstances, discrimination in the provision of goods, facilities and services; the exercise of public functions; education; and the disposal of premises.

    The House of Lords, during the debate on the Bill, was told that there is a great deal of evidence about sexual orientation discrimination in the private sector as regards access to goods, facilities and services by insurance and financial services companies, holiday companies and hotels. An example frequently mentioned is that hotel and holiday accommodation can be refused to gay couples requesting double rooms, and there is currently no legal redress.

    In the public sector, discrimination in the form of refusal of healthcare is cited.

    The Regulations will enable individuals to bring cases via the county courts in England and the sheriff courts in Scotland.

    The Act also provides a power under which the Office of the First Minister and Deputy First Minister can make parallel regulations in Northern Ireland.

    Consultation

    The government issued a consultation document1 setting out its proposals for the Regulations on 13 March 2006. This seeks views on specific points about the range of activities that should be covered by the Regulations, and on whether any exceptions should be provided from them to ensure that the protection from sexual orientation discrimination that is introduced is effective and appropriately targeted. The consultation period will last for 12 weeks, closing on 5 June. The government intends to implement the Regulations in October 2006, alongside the religion and belief provisions.

    Introducing the proposals, Johnson said: "Too often, gay and lesbian people can face discrimination in their everyday lives. I want to make sure that no one gets refused a room at a hotel or a table in a restaurant because of their sexuality. We intend to end this sort of discrimination and make sure that gay men, lesbians and bisexual people can enjoy the same rights and freedoms as heterosexual people." Views are being sought on the following areas:

  • how religious organisations and faith schools should be covered by the Regulations;
  • whether or not exceptions should be provided in a few specific areas, for example to allow sexual health clinics for gay men or lesbians to continue to target their services at these groups; and
  • how charities should be covered by the Regulations.
  • The government is proposing that there should be no exception from the prohibition on sexual orientation discrimination to allow businesses to limit access to their goods and services on the basis of an individual customer's actual or perceived sexual orientation. This will also apply to businesses that are directed towards lesbians, gay men and bisexuals, such as gay bars and clubs. The consultation document says: "Providing an exception that was limited to gay businesses would undermine the general principle that discrimination on the grounds of sexual orientation is wrong." However, there may be "carefully defined" exceptions for public sector services, such as health services targeted at lesbians and gay men.

    Clubs or associations that exist to provide a genuine benefit or opportunity to a group linked to their sexual orientation, such as a gay men's social and support group, will also be permitted to include the sexual orientation of a person in their membership criteria.

    Gender equality duty

    The Equality Act prohibits sex discrimination in the exercise of public functions and creates a public sector duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between women and men.

    The prohibition of sex discrimination in the exercise of public functions is regarded by the government as "needed to provide comprehensive protection against sex discrimination in the delivery of public functions, thus bringing public sector activities such as policymaking, decision-making, administrative functions and, where not already covered, service delivery within the Sex Discrimination Act. It is also essential to underpin the gender duty."

    The gender equality duty requires a public authority to have due regard to "the need to eliminate unlawful discrimination" and to "promote equality of opportunity between men and women". The first limb of this duty will include discrimination in pay, and therefore will cover the Equal Pay Act. The second limb, as Munn noted during the parliamentary debates, "covers everything that a public authority does, including its employment functions, its services and its public functions, such as its policy, regulatory and enforcement work, to the extent that they are relevant to gender equality".

    The Equality Act's provisions in this respect closely parallel the duties that were imposed on public authorities by the Race Relations (Amendment) Act 2000 (EOR 95) and by the Disability Discrimination Act 2005 (Disability Discrimination Act 2005: an EOR guide). They will apply to anyone who carries out a public function. This will cover recognisable public bodies such as government departments, local authorities and NHS trusts. The gender equality duty will also apply to educational institutions, such as schools, colleges and universities.

    Private sector bodies that provide services on behalf of a public authority, such as running a prison, also fall within the scope of the gender equality duty, but only in relation to areas of work that constitute a public function. For example, it will apply to a private contractor to the extent that it provides security services to a prison, but not in relation to any of its services provided for customers or businesses in the private sector.

    There are exceptions for services that are provided separately, or for one sex only, when the circumstances or need are such that it would not be reasonably practicable to do otherwise. An amendment made to the legislation as it went through parliament places a specific obligation on public authorities relating to the elimination of sexual harassment.

    The gender equality duty is likely to come into effect on 6 April 2007. The government has published a consultation document on its proposals (Views sought on gender duty proposals). The duty would require public authorities to draw up a scheme identifying gender equality goals and showing the action they will take to implement them. They would also be required to conduct and publish gender impact assessments.

    Until the CEHR is established, the EOC will be responsible for the implementation and enforcement of the gender equality duty. It has been given powers to prepare a statutory code of practice. On 13 February 2006, the EOC issued a consultative draft code of practice intended to give practical guidance to public authorities on how to meet the gender equality duty. The consultation period will run until 15 May 2006, and will include a series of regional meetings. There is also an online consultation2, which will run until 13 May.

    Announcing the consultation process, the EOC said that the gender equality duty "has the potential to transform public services - including healthcare, transport and education - and help close the pay gap between women and men".

    The draft code sets out the general principles that: "Public authorities will be expected to provide evidence that due regard has been paid to the duty in relation to their core functions of policy development, service design and delivery, and employment. This includes services and functions which have been contracted out … Paying due regard means that the weight given to gender equality should be proportionate to its relevance to a particular function. In practice, this approach will mean giving greater consideration and resources to functions or policies that have most effect on the public, or on the authority's employees. The authority should ask whether particular policies could affect men and women in different ways, and whether policies will promote equality of opportunity."

    The draft code suggests that how a public authority has discharged the gender equality duty is likely to be assessed by the EOC, the CEHR and public sector inspectorates on the following criteria:

  • Information:
  • do you have the information which allows you to understand the impact of your work on women and on men, including transsexual women and men?

  • Involvement:
  • have the relevant people inside and outside the organisation been involved in providing information and identifying gender equality priorities?

  • Transparency:
  • has information on decision-making processes, priorities, actions and progress been widely available through appropriate channels and in a variety of formats?

  • Proportionality:
  • in addressing the duty, has the public authority put its effort and resources where they will have most impact on gender equality (and have they done enough to find out what the most significant issues are)?

  • Effectiveness:
  • has the action delivered the required outcomes and led to greater gender equality?"

    The gender equality duty applies to all aspects of a public authority's functions, including its functions as an employer. The EOC's draft code emphasises that the duty requires employers to ensure that "you eliminate discrimination and harassment in your employment practices and actively promote gender equality within your workforce".

    The draft code contains detailed recommendations on how to do this in respect of the following key employment issues: recruitment; concentration of women and men into particular areas of work; managing flexible working; part-time work; managing leave for parents and carers; managing pregnancy and return from maternity leave; sexual and sexist harassment; transsexual staff and potential staff; grievance and disciplinary procedures; redundancy; retirement; equal pay; and work-based training opportunities.

    1Getting equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services (PDF format, 373K).

    2www.eoc.org.uk/genderduty.