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    Aileen McColgan - PSED and Postive Action

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    The document discusses equality law requirements in the UK, including the public sector equality duty (PSED) and positive action provisions. It provides: 1) An overview of the PSED under the Equality Act 2010, which requires public authorities to have due regard to eliminating discrimination and advancing equality when exercising their functions. Key protected characteristics are also outlined. 2) Guidance on how and when to conduct equality impact assessments (EIAs) to comply with the PSED, including identifying impacts, consulting stakeholders, and assessing and addressing adverse impacts. 3) An explanation of the differences between positive discrimination (which is generally unlawful) and positive action measures, which can be voluntarily taken to address disadvantages faced by people

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    Aileen McColgan - PSED and Postive Action

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    chrispittman
    95 views27 pages
    The document discusses equality law requirements in the UK, including the public sector equality duty (PSED) and positive action provisions. It provides: 1) An overview of the PSED under the Equality Act 2010, which requires public authorities to have due regard to eliminating discrimination and advancing equality when exercising their functions. Key protected characteristics are also outlined. 2) Guidance on how and when to conduct equality impact assessments (EIAs) to comply with the PSED, including identifying impacts, consulting stakeholders, and assessing and addressing adverse impacts. 3) An explanation of the differences between positive discrimination (which is generally unlawful) and positive action measures, which can be voluntarily taken to address disadvantages faced by people

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    Overview of the UK Public Sector Equality duty

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    The document discusses equality law requirements in the UK, including the public sector equality duty (PSED) and positive action provisions. It provides: 1) An overview of the PSED under the Equality Act 2010, which requires public authorities to have due regard to eliminating discrimination and advancing equality when exercising their functions. Key protected characteristics are also outlined. 2) Guidance on how and when to conduct equality impact assessments (EIAs) to comply with the PSED, including identifying impacts, consulting stakeholders, and assessing and addressing adverse impacts. 3) An explanation of the differences between positive discrimination (which is generally unlawful) and positive action measures, which can be voluntarily taken to address disadvantages faced by people

    Copyright:

    © All Rights Reserved
    Download as PPT, PDF, TXT or read online from Scribd
    Download as ppt, pdf, or txt
    95 views27 pages

    Aileen McColgan - PSED and Postive Action

    Uploaded by

    chrispittman
    The document discusses equality law requirements in the UK, including the public sector equality duty (PSED) and positive action provisions. It provides: 1) An overview of the PSED under the Equality Act 2010, which requires public authorities to have due regard to eliminating discrimination and advancing equality when exercising their functions. Key protected characteristics are also outlined. 2) Guidance on how and when to conduct equality impact assessments (EIAs) to comply with the PSED, including identifying impacts, consulting stakeholders, and assessing and addressing adverse impacts. 3) An explanation of the differences between positive discrimination (which is generally unlawful) and positive action measures, which can be voluntarily taken to address disadvantages faced by people

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    The PSED and Positive Action

    Aileen McColgan, Matrix

    The Statutory Equality Needs:


    Giving Regard Where it is Due

    Purpose and History


    it is incumbent upon every institution to
    examine their policies and the outcome
    of their policies and practices to guard
    against disadvantaging any section of
    our communities
    Sir William MacPherson

    A new approach to equality

    From restitution to mainstreaming


    From tort model to public law duty
    Pre-emptive duty of consideration
    From avoiding to discrimination to
    promoting equality

    S149 Equality Act 2010


    (1)A public authority must, in the exercise of its functions,
    have due regard to the need to
    (a) eliminate discrimination, harassment, victimisation and
    any other conduct that is prohibited by or under this Act;
    (b)advance equality of opportunity between persons who
    share a relevant protected characteristic and persons
    who do not share it;
    (c)foster good relations between persons who share a
    relevant protected characteristic and persons who do not
    share it.

    Protected characteristics

    Age
    Disability
    Gender reassignment
    Pregnancy and maternity
    Race
    Religion or belief
    Sex
    Sexual orientation

    (3) Having due regard to the need to advance equality of opportunity between
    persons who share a relevant protected characteristic and persons who do not share
    it involves having due regard, in particular, to the need to
    (a) remove or minimise disadvantages suffered by persons who share a relevant
    protected characteristic that are connected to that characteristic;
    (b)take steps to meet the needs of persons who share a relevant protected
    characteristic that are different from the needs of persons who do not share it;
    (c)encourage persons who share a relevant protected characteristic to participate in
    public life or in any other activity in which participation by such persons is
    disproportionately low.
    (5)Having due regard to the need to foster good relations between persons who
    share a relevant protected characteristic and persons who do not share it involves
    having due regard, in particular, to the need to
    (a) tackle prejudice, and
    (b) promote understanding.

    General principles from the caselaw (1)


    Decision makers must be aware of their due regard duties:
    Kaur & Shah v Ealing LBC [2008] EWHC 2062 (Admin)
    Domb v Hammersmith and Fulham LBC [2009] EWCA 941
    Chavda v London Borough of Harrow [2007] EWHC 3064
    (Admin)
    Baker v Secretary of State for Communities and Local
    Government [2008] EWCA Civ 141;
    Brown v Secretary of State for Work and Pensions [2008]
    EWHC 3158 (Admin);
    Brooke v Secretary of State for Justice [2009] EWHC 1396
    (Admin)

    Principles (2)
    Due regard is regard that is appropriate in
    all the circumstances proportionality is the
    key
    The duty concerns the decision making
    process it does not dictate the outcome.
    The duty must be exercised with rigour and
    with an open mind

    Principles (3)
    Timing: must be fulfilled before and at the
    time of the decision
    A continuing duty
    The need for an EIA?

    When should an EIA be carried out?


    Not every policy needs one: screening
    Key concept is relevance
    Who is it likely to affect and in what way? Are
    any of the equality strands likely to be
    relevant?

    Key steps in an EIA

    Identify what equality strands the policy might affect


    What evidence already exists about potential impact?
    What further evidence is needed?
    Consultation Rahman v Birmingham City Council [2011] EWHC 944
    (Admin):
    1. Undertaken at a time when proposals are still at a formative stage;
    2. Sufficient reasons must be provided to permit those intelligent
    consideration and response;
    3. Adequate time must be given;
    4. Product of consultation must be conscientiously taken into account
    when the ultimate decision is taken.
    R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168.

    Assessing the impact the hard part

    What are the main findings do they reveal any issues relevant to the equality
    strands. For example...
    Could outcome of policy differ according to peoples ethnic group, gender, disability,
    sex etc
    Is there evidence of higher/lower uptake of the service/benefit among different
    groups?
    If so, or if different impacts on different groups, is that consistent with policy
    objective?
    Could policy disadvantage people from one or more groups?
    If there is differential impact that disadvantages one group, how can that impact be
    minimised consistent with the need to take into account overall policy objectives,
    which may include cost savings.
    Do effects amount to unlawful discrimination?
    Does policy promote equality of opportunity? If not, could it be changed to do so?
    Does policy foster good relations between people of different groups? If not, could it
    do so?

    And finally: some basic truths

    EIAs are not an end in themselves they are a way of showing that due regard has been paid to the
    general duties.
    EIAs should be an integral part of policy development and review, not a one-off or separate exercise.
    EIAs are not just about addressing discrimination or adverse impact; they should also positively promote equal
    opportunities, improved access, participation in public life and good relations.
    A policy should be impact-assessed if it is relevant to equality, with the most relevant policies assessed first and
    most thoroughly.
    The quality of an EIA is not measured by its page count but by the quality of the analysis, the action
    taken as a result and the outcomes achieved through implementation.
    The time and effort involved should be in proportion to the relevance of the policy.
    Without good evidence, a good EIA will be difficult to achieve.
    Lack of data is never an excuse for not assessing impact some data will almost always be available and where
    data isnt available it must be actively gathered.
    The information and insights that can be gained from involvement and consultation are essential, and
    involvement and consultation should also usually be carried out as part of the main policy development process.
    EIAs should always include an action plan.
    EIAs must always inform the final decision on a policy.
    Unless your policy is already perfect for equality (which is highly unlikely), an EIA should lead to policy change.

    Positive Action

    Positive discrimination: the


    default position

    It is unlawful to:
    treat someone less favourably because of a
    protected characteristic
    treat someone more favourably because of a
    protected characteristic
    Exceptions:
    Disability
    Age
    Political parties

    Positive action: the general


    idea

    the Act does not prohibit the use of positive action


    measures to alleviate disadvantage experienced by
    people who share a protected characteristic, reduce
    their under-representation in relation to particular
    activities, and meet their particular needs. It will, for
    example, allow measures to be targeted at particular
    groups, including training to enable them to gain
    employment, or health services to address their
    needs.
    Explanatory notes

    Positive action is voluntary


    S.158
    Positive actions: general
    S.159
    Positive actions: recruitment and
    promotion

    Positive actions: general


    If P reasonably thinks people with a protected characteristic:
    suffer a disadvantage connected to a protected
    characteristic
    have needs which are different from others
    participate in disproportionately low numbers in an
    activity
    some indication or evidence will be required to show that
    one of these statutory conditions applies. It does not,
    however, need to be sophisticated data or research.
    Employment Code of Practice

    Then P can take any action which is a proportionate


    means of achieving the aim of addressing one or more of
    those issues
    Proportionality involves the balancing of competing
    relevant factors
    Is the action an appropriate way to achieve the stated aim?
    Is the action reasonably necessary to achieve the aim
    would it be possible to achieve the aim as effectively by
    other actions that are less likely to result in less favourable
    treatment of others?

    Examples
    Police: under-reporting of anti-Semitic crime; evidence of lack
    of trust within Jewish community
    Positive action: team dedicated to anti-Semitic crime
    Positive action: dedicated reporting points for anti-Semitic
    crime
    British Judo Association: disproportionately low number of
    women competitors
    Positive action: offer twice as much prize money to women
    Positive action: dedicated advertising campaign aimed at
    women
    Positive action: special offers on training courses for women

    Positive action:
    recruitment/promotion

    Differences:

    Does not include positive action to address different needs


    The person treated more favourably must be as qualified as
    the person treated less favourably
    a judgment based on the criteria the employer uses to
    establish who is best for the job Explanatory Notes
    The employer may not have a policy of treating persons who
    share the protected characteristic more favourably
    each case must be considered on its merits
    Explanatory

    Notes

    EU law
    as a derogation from an individual right laid
    down in the Directive [these kinds of provisions]
    must be interpreted strictly (Kalanke)
    the Directive precludes national rules such as
    those in the present case which, where
    candidates of different sexes shortlisted for
    promotion are equally qualified, automatically
    give priority to women in sectors where they are
    underrepresented. (Kalanke)

    A measure which is intended to give priority in


    promotion to women in sectors of the public service
    where they are under-represented must be
    regarded as compatible with Community law if
    it does not automatically and unconditionally give
    priority to women when men and women are
    equally qualified, and
    the candidatures are the subject of an objective
    assessment which takes account of the specific
    personal situations of all candidates. (Badeck)

    Examples
    A solicitors firm has disproportionately few women
    partners.
    it decides to interview all female applicants.
    having concluded that a female and male candidate
    were both equally qualified for partnership, it decides
    to offer the role to the female candidate
    An employer has very few employees over the age of 50
    it has an open day specifically for older candidates
    it decides to restrict applications for a new vacancy to
    candidates over 50
    it states on its advertising that it specifically
    encourages applications from candidates over 50

    Conclusion
    A valuable opportunity to address disadvantages
    But caution:
    Burden of proof?
    Objective assessment by court/tribunal
    If action does not meet the conditions, it will
    probably be unlawful discrimination

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