The Act protects people from discrimination on the basis of protected characteristics. The relevant characteristics are:

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1 Equality Act 2010 The Equality Act 2010 brings together, harmonises and in some respects extends the current equality law, by making it more consistent, clearer and easier to follow in order to make society fairer. As a public sector organisation, our responsibilities remain largely the same but there are some differences we need to be aware of. The Equality Duty is a duty on public bodies and others carrying out public functions. It ensures that public bodies consider the needs of all individuals in their day to day work in shaping policy, in delivering services, and in relation to their own employees. The new Equality Duty supports good decision-making it encourages public bodies to understand how different people will be affected by their activities so that policies and services are appropriate and accessible to all and meet different people s needs. Show Desktop.scf 1. Who is protected? The Act protects people from discrimination on the basis of protected characteristics. The relevant characteristics are: Disability (definition changed) Gender reassignment (definition changed) Pregnancy and maternity Race Religion and Belief Age Sex, Sexual Orientation, and Marriage and Civil Partnerships The Equality Act does not make explicit reference to refugees and migrants or gypsies and travellers within the Act itself. However, we have a history of including the needs of refugees and migrants within our Race Equality and Corporate Equality Schemes and addressing these needs through action plans. Additionally, under the Act, we will still be required to demonstrate how we have had due regard to the general Duty. This will require us to include groups such as refugees and migrants and gypsies and travellers in any ongoing monitoring of outcomes in order to demonstrate the impact of our work on the different communities we serve. Despite the socio-economic duty no longer being included within the Equality Act 2010, the Council s top priority is to tackle poverty, which is high in Islington compared to other areas. We are therefore committed to considering the socio-economic impact and reducing inequalities and Equality Act

2 disadvantage when making decisions about how we exercise our functions. The Council s policy is therefore to include socio-economic disadvantage in the same way as other protected characteristics. This means considering it within our EIA s and taking steps to mitigate, as well as considering it within other equality policies and schemes. 2. Aims of the Public Sector Equality Duty The Equality Duty under section 149 of the Equality Act 2010 has three aims. It requires public bodies to have due regard to the need to: Eliminate unlawful discrimination, harassment and victimisation Advance equality of opportunity between people who share a characteristic and those who do not Foster good relations between people who share a characteristic and those who do not Having due regard means consciously thinking about the three aims of the Equality Duty as part of the process of decision making. This means that consideration of equality issues must influence the decisions reached by public bodies such as how we act as employers; how we develop, evaluate and review policy; how we design, deliver and evaluate services, and how we commission and procure from others. Having due regard to the need to advance equality of opportunity involves considering the need to: Remove or minimise disadvantages suffered by people due to their protected characteristics; Meet the needs of people with protected characteristics; and Encourage people with protected characteristics to participate in public life or in other activities where their participation is low. Example The Community Safety team, when reviewing its policy on hate crime, finds that 68% of all hate crime reported to the police is described as homophobic. The Community Safety team takes account of the extremely high occurrence of hate crime on the local LGBT population in drawing up and implementing its new policy addressing hate crime. Fostering good relations involves tackling prejudice and promoting understanding between people who share a protected characteristic and others. Compliance with the general equality duty means that in some circumstances it is lawful to treat some people more favourably than others, when this is allowed by the Equality Act For instance, making reasonable adjustments for disabled people. Equality Act

3 3. What this means? Public bodies need to consciously think about the three aims of the Equality Duty as part of the process of decision-making. The weight given to the Equality Duty, compared to other factors, will depend on how much that function affects discrimination, equality of opportunity and good relations and the extent of any disadvantage that needs to be addressed. The following principles, drawn from case law, explain what is essential in order for the Equality Duty to be fulfilled. Public bodies should ensure: Knowledge be aware of the requirements of the Equality Duty; having a conscious approach and state of mind. Timeliness The Equality Duty must be complied with before and at the time that a particular policy is under consideration or decision is taken that is, in the development of policy options and in making a final decision. A public body cannot satisfy the Equality Duty by justifying a decision after it has been taken. Real consideration consideration of the three aims of the Equality Duty must form an integral part of the decision-making process. The Equality Duty is not a matter of box-ticking; it must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision. Sufficient information need to consider what information we have and what further information may be needed in order to give proper consideration to the Equality Duty. No delegation we are responsible for ensuring that any third parties which exercise functions on our behalf (such as contractors) are capable of complying with the Equality Duty, are required to comply with it and that they do so in practice (through contract monitoring). It is a duty that cannot be delegated. Review need to have regard to the aims of the Equality Duty not only when a policy is developed and decided upon, but also when it is implemented and reviewed. The Equality Duty is a continuing duty. Demonstrating compliance with the Equality Duty There is no explicit requirement to refer to the Equality Duty in recording the process of consideration but it is good practice to do so. Keeping a record of how decisions were reached will help public bodies demonstrate that they considered the aims of the Equality Duty. 4. Specific Duties Equality Act

4 Public authorities must publish sufficient information to demonstrate that they have complied with the general equality duty. The regulations will require public bodies to: Publish equality objectives every four years Publish information annually to demonstrate their compliance with the general Equality Duty In particular publish information relating to employees (for bodies with 150 or more staff) and others affected by their policies and practices (such as service users) Specific duties will ensure that we are accountable for delivering on the Equality Duty by requiring them to be transparent about our own staff and the public services that we deliver that is, giving the public the information they need to hold us to account. Equalities Monitoring Because the general equality duty requires you to analyse the effect of your organisation s functions on all protected groups, public authorities will not be able to meet the duty unless they have enough usable information. We have not yet achieved a culture where employees or service users are ready to be asked about their sexual orientation, gender identity or religion or belief. We need to take steps to engender a culture of trust in which this information could be collected. This can also include analysing national or local research and engagement with people from those groups can be useful for identifying potential issues of concern. If this information is collected, it is important to explain why the information is being collected, what it will be used for, and how privacy will be protected. 5. What s not a duty? The new Equality Duty should be applied in such a way that the focus is on performance, not process. Equality Impact Assessments EIA s are no longer a legal requirement. Compliance with the Equality Duty involves consciously thinking about the three aims of the Equality Duty as part of the process of decision making. It entails understanding the potential effects of the organisations activities on different people. However, there is no prescribed way of doing this. The most pragmatic way to deliver this is to continue with the EIA process the Council has already implemented. This means we will continue undertaking impact assessments of changed or new processes thereby demonstrating consideration of the Equality Duty in making decisions and understanding impacts on different groups. We will also continue publishing a schedule of EIAs, thus maintaining transparency and accountability. Producing an EIA after a decision has been reached will not achieve compliance with the Equality Duty. Equality Act

5 The Equality Duty does not mean that we have to examine equality issues where they are not relevant to the matter in hand. Where it is clear from initial consideration that a policy will not have any effect on equality for any of the protected characteristics, no further analysis or action is necessary. For example, if a public body is conducting a review in relation to an issue which has no implications for equality such as an evaluation of the effect of coastal pollution on marine life undertaking a formal consultation or analysis addressing equality issues where it is evident that the Equality Duty is not relevant would be pointless and is not required. The Equality Duty does not require us to take disproportionate action on equality. In practice, this means giving greater consideration to the Equality Duty where a function or policy has the potential to have a substantial effect on discrimination or equality of opportunity for the public or the public body s employees, and less consideration where the potential effect on equality is slight. Example We might decide to translate a leaflet about a key service into a few commonly spoken minority languages, in order to ensure people from particular ethnic minority communities have access to the service. But translating all of our public information into the 155+ languages regularly spoken in Islington would be a disproportionate response to the Equality Duty. The Equality Duty does not require us to treat everyone the same. Rather, it requires us to think about people s different needs and how these can be met. So the Equality Duty does not prevent us from providing women-only services for example, for female victims of sexual violence or domestic violence. Indeed, such services may be necessary in order to ensure women have access to the services they need. The Equality Duty does not require us to treat all religions as being equal or to treat all religious festivals equally. For example, a public body displaying a Christmas tree every year in its reception area would not be a breach of the Equality Duty. However, if we have significant numbers of residents or staff from other religions who asked for similar recognition of their significant festivals, then we would need to consider the request seriously. The Council has produced Religious Observance policy which may provide further guidance, please see bacfb8/ Religious_observance.pdf The Equality Duty does not require us to make services homogeneous or to try to remove or ignore differences between people. So, for example, it does not mean that we must stop providing age-appropriate services for people of different ages, or that we can no longer commission some services to be provided by different faith organisations. Faith Equality Act

6 organisations are sometimes well-placed to deliver services which meet the particular needs of their community. 6. What do we need to do differently? As a public sector organisation, our responsibilities remain largely the same, so there is not a lot we need to do differently, but there are some things we need to do to update our current practice. Schemes and Policies We need to revise existing key equalities (such as Dignity for All) and workforce development policies (such as Recruitment) to reflect the Equality Act. We need to review and update equality schemes and guidance as appropriate. It is not intended that we complete new schemes for all the protected characteristics but to incorporate the new protected characteristics within existing schemes, for instance making explicit reference to gender reassignment in our Gender Equality Scheme. The EIA guidance needs to be updated to reflect the changes made by the Equality Act. As stated we are not proposing to cease EIAs but we do need to ensure that there is explicit reference to the three aims of the Equality Act within our EIA process. In addition, we need to incorporate the new protected characteristics (gender reassignment; maternity and pregnancy; and marriage and civil partnerships) within the EIA process. We have already incorporated poverty/ child poverty within our EIAs. As part of the EIA process, we also need to screen significant policies to assess their impact on the new protected characteristics. Recruitment An employer will not be allowed to ask a pre-employment health questionnaire before the person is given a job or placed in a pool of future employees. If the council does ask health questions before a job is offered and subsequently does not offer the person a job, the burden of proof will be on the council to prove that there was no discrimination. Employers will be able to ask health related questions before a job offer is made in limited circumstances. These include: asking health related questions in order to make reasonable adjustments for the interview process to monitor for diversity find out whether a candidate is able to undergo an assessment for the job Assess whether the candidate is able to perform the pivotal functions of the job There is an occupational requirement defence which applies to all protected characteristics. Equality Act

7 Enables an employer to state that only people with a particular protected characteristic are eligible for the job Positive Action The act permits rather than requires organisations to voluntarily take positive action and recruit from under-represented or disadvantaged group where two candidates are as qualified as each other, providing such action is proportionate Candidates do not have to be identical in all ways before a preference can be shown. Where the council considers both candidates to satisfy the requirements of the role and have the same band of capabilities, the council may show a preference to the candidate from the disadvantaged group or the group where there is low participation. However, it would be unlawful to hire someone solely on the basis of the fact that they are from a particular demographic or underrepresented group. This would be direct discrimination. The council is not allowed to formulate a policy of automatically choosing people from an underrepresented group in recruitment. It is prescribed to fast track people with a protected characteristic. Employers must keep an open mind and carry out an objective assessment at all stages and only make the preference at the point of the decision. 7. Effective dates The majority of the Equality Act came into force on the 1 st October 2010 with the Public Sector Equality Duty coming into effect on 5 th April Draft regulations were laid before Parliament on 27 June 2011, which would require public bodies to: Publish equality objectives every four years Publish information annually to demonstrate their compliance with the general Equality Duty In particular publish information relating to employees (for bodies with 150 or more staff) and others affected by their policies and practices (such as service users) We need to publish our equality objectives and compliance with the Equality Duty by April The Equality and Human Rights Commission will produce a statutory Code of Practice on the Equality Duty later in 2011, explaining the law in more detail. 8. Enforcement The Equality and Human Rights Commission is responsible for assessing compliance with and enforcing the Equality Duty. It has powers to issue compliance notices to public bodies that have failed to comply and can apply Equality Act

8 to the courts for an order requiring compliance. The Equality Duty can also be enforced by judicial review. This can be done by the Commission or any individual or group of people with an interest. Further information: Equality Act

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