Draft code of practice on gender equality duty
The Equal Opportunities Commission is consulting on the terms of a code of practice that aims to give guidance to public authorities on meeting their new gender equality duty.
The Equality Act 2006 creates a general duty on public authorities to have due regard, in carrying out their functions, to the need to eliminate unlawful discrimination and to promote equality of opportunity between men and women. It also provides that the secretary of state1 can, by order, impose on someone to whom the general duty applies "specific duties" to ensure better performance of the general duty.
The Equal Opportunities Commission (EOC) has now issued a draft code of practice on the gender equality duty and is asking for views on it.
The gender equality duty will be similar to the existing race equality duty and the disability duty that will be imposed on public authorities from December 2006. In the draft code, the EOC confirms that it will be acceptable for public authorities to produce one set of planning documentation covering all three duties, provided that the requirements of all three duties are met and that it is clear to people what action they can expect to see on each of the equality issues.
The general duty
The general duty will apply to public authorities, which are defined as including "any person who has functions of a public nature".
The draft code explains that the aim of the general duty is not to establish processes, but to make visible and faster progress towards gender equality. It gives possible indicators of progress which, in the employment field, could include that:
women and men are represented at all levels of the workforce and in all areas of work;
sexual and sexist harassment of staff is dealt with promptly and systematically, according to agreed procedures; and
there is no discrimination against pregnant women and women returning from maternity leave.
The draft code lists 13 key employment issues that should be considered by public authorities when deciding their priorities for action. These are: recruitment; concentration of men and women 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.
Public authorities are told that, in practice, meeting the gender equality duty as an employer will involve a cyclical process of data collection, analysis of data, developing an action plan, implementing the plan and monitoring the outcomes. The workforce will need to be involved in the process and there will need to be an agreed timetable for taking action.
There is a reminder that there is already a Code of practice on equal pay2, which recommends equal pay reviews as the best means of ensuring that employers are complying with the need to eliminate unlawful sex discrimination from their pay system.
The specific duties
Although a list of the public authorities subject to the specific duties has yet to be finalised, most of the major ones will be included. In appendix C to the draft code, the EOC has published a list as set out in the Department of Trade and Industry's 2005 consultation Advancing equality for men and women: government proposals to introduce a public sector duty to promote gender equality3. The final list is likely to include some modifications, chiefly to include educational institutions. As yet, there are no draft regulations in which the "specific duties" are defined. For the purposes of the consultation, the EOC is working on the proposed duties set out in the 2005 consultation.
These require public authorities to:
produce and publish an equality scheme identifying their gender equality goals and action to meet them, in consultation with employees 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
conduct and publish gender impact assessments of all legislation and major policy developments and publish their criteria for conducting such impact assessments.
The draft code states that, in order to draw up a gender equality scheme, public authorities will have to undertake a rigorous process of reviewing their core business functions to understand which areas affect gender equality. They will be expected to focus on the issues where the impact is greatest. As employers, they will need to prepare a gender profile of their staff - including data on recruitment and promotion. There should also be a more detailed breakdown of data about men and women by disability or ethnicity and, if possible, by age, sexual orientation or religion.
The listed public authorities must ensure that their gender equality schemes are in place and published no later than 6 April 2007.
The draft code envisages a gender impact assessment starting with a screening process on policy development in the organisation concerned. It gives an outline of the initial screening process and indicates that the EOC is to publish further detailed guidance on conducting gender impact assessments.
Procurement and partnerships
The gender equality duty applies to functions that are carried out through procurement, as well as those carried out directly by public authorities.
Where a contractor is carrying out a public function on behalf of a public authority, legal liability for fulfilling the gender equality duty in relation to that function remains with the public authority. In some cases, a publicly funded private contractor providing a public service may also be liable as a functional public authority. The draft code gives the example of a private company running a prison and, in breach of its contract with the Home Office, closing down the childcare facilities intended for use by prison visitors. Both the Home Office and the private company could be challenged as being in breach of the gender equality duty. If the Home Office had included a requirement for childcare facilities in the contract, it might be able to demonstrate that it had discharged its duty. However, the private company is more likely to have difficulty doing so.
This means that the relevant gender equality considerations will need to be built into the procurement process. The draft code recommends specific steps that public authorities should take to assist them in meeting the gender equality duty where contractors provide goods, works, services and staff on their behalf. These include:
providing training for all staff involved in procurement work so that they fully understand the provisions of the sex discrimination and equal pay legislation where relevant to their work;
informing procurement candidates or tenderers where to obtain information about contractors' obligations under the legislation and the gender equality duty; and
including in every contract a performance condition that the contractor must comply with these obligations and the gender equality duty.
Exceptions and enforcement
The draft code gives guidance on the legal status of single-sex services. In the employment field, this focuses on the limited exceptions under the Sex Discrimination Act 1975 that allow women only - or men only - access to facilities for training (s.47).
It also explains the role of the EOC - and, in future, the Commission for Equality and Human Rights (CEHR) - in enforcing the general duty by judicial review and both the general and specific duties by means of compliance notices.
The draft code lists the criteria that the EOC, the CEHR and public sector inspectorates are likely to use to assess whether public authorities have discharged the gender equality duty:
Information: do you have the information that allows you to understand the impact of your work on men and women, including transsexual men and women?
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 has it 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?
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Document: The new gender equality duty: a public consultation on the draft code of practice The questions: The consultation is seeking views on the draft code, and the following questions in particular: How clear is it what your organisation has to do to comply with the gender equality duty, and what could be done to make it clearer?
Is it clear which steps are legal obligations and which are recommended as good practice?
What are the most and least helpful aspects of the code?
Do any of the recommendations or guidance in the code have a particular positive or negative impact on men and women from different racial groups or with disabilities?
How useful are each of the chapters in the code and what changes could be made to them to help you implement the gender equality duty more effectively?
Deadline for responses: 15 May 2006. Responses to be submitted: online (contributors are required to register). Available
at: http://eoc.dialoguebydesign.net/dbyd.asp. |
1Or Scottish ministers where appropriate.
