Equality Act 2010 – will it make a difference in Procurement?

Margaret DavisPartner20 October 2010

The Equality Act 2010• New general duty• New specific duties• New socio-economic duty• Commencement?

Equality Act 2010General Equality duty, which will require bodies to have due regard to the need to: • Eliminate discrimination, harassment, victimisation and any other

conduct prohibited under the Bill

• Advance equality of opportunity.

• Foster good relations across all the characteristics that will be protected by the Bill

Policy statement January 2010Government intended to:

• scrap equality schemes

• introduce a new obligation to set equality objectives

• introduce some national equality objectives –e.g. closing the gender pay gap

• require the publication of data on the authority’s gender pay gap, percentage of staff from ethnic minority groups and those with disabilities

• introduce new procurement related duties

Public Procurement

Labour governmentEquality issues are to play a key role in delivering public procurement objectives and equality issues to be taken into account in award criteria and contract conditions when appropriate

Public procurementproposals published January 2010

• Although public bodies should already be taking equality into consideration as part of their procurement processes under the existing public sector equality duties, we do not believe this happens as frequently or consistently as it could. We therefore proposed that a legislative imperative was needed to drive up performance and consistency in the use by public bodies of theirprocurement activities to contribute to improved equality outcomes.

Specific Duties

• A consultation document published in June 2002 for specific duties based on previous Government’s proposals

• Very heavy on procurement setting out very detailed and complex proposals

Coalition Goverment

Back to the drawing board!

The Equality Act 2010

• Royal Assent - 8 April 2010

• Majority of provisions came into force - 1 October 2010

• Provisions still under consideration• dual discrimination

• gender pay gap information

• positive action in recruitment and promotion

• prohibition on age discrimination in services and public functions

• the socio-economic duty on public authorities

Coalition Government’s proposals• 19 August 2010 Consultation document published by

Government Equalities Office (GEO) its proposals for:

• Regulations on the specific duties designed to help bodies meet the requirements of the general equality duty.

• The public bodies that will be subject to the general and specific duties.

• Proposals for the specific duties (Chapter 5 of the document)

Public Procurement

August 2010 - Consultation document Promoting equality through transparency:

• The Equality Duty requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups across all their functions.

• We do not believe it is necessary to impose burdensome additional processes on public bodies telling them how to conduct their procurement activity: they will be judged on the outcomes that they deliver

New general duty – s149A public authority must, in the exercise of its functions, have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;

• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and

• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Protected characteristics

• Age• Disability• Gender Reassignment• Marriage and Civil Partnership• Pregnancy and Maternity• Race• Religion or Belief• Sex• Sexual Orientation

Prohibited conduct• Direct discrimination• Indirect discrimination• Victimisation• Harassment• Disability

• Discrimination on the grounds of

• Discrimination for a reason relating to

• Discrimination arising from

• Reasonable adjustments

Direct Discrimination• “because of” rather than “on the grounds of”

• compare like with like

• actual and hypothetical comparators

• covers perceptive discrimination

• covers associative discrimination but not where the protected characteristic is marriage /civil partnership

Indirect discrimination• a person applies a provision, criterion or practice (often called a

"PCP");• which puts or would put persons who share a protected

characteristic at a particular disadvantage when compared with other persons;

• which puts or would put the Claimant at that disadvantage; and• which cannot be shown to be justified (a proportionate means of

achieving a legitimate aim).

Harassment• Unwanted conduct related to a relevant protected

characteristic which:• violates a person’s dignity; or

• creates an intimidating, hostile, degrading, humiliating or offensive environment for that person

• In deciding whether the conduct has that effect, must take into account:• Perception of the victim

• Other circumstances of the case

• Is it reasonable for the conduct to have that effect

• Could be a one off incident

Secondary liability • Vicarious liability• Reasonable steps defence• Personal responsibility• Agency• Aiding• Making statements to those aiding discrimination• Instructing, causing or inducing

In short…• No legal basis for using equalities-based criteria for

selection of bidders• No express basis for using for award• Unattractive ground of challenge - but times harder and

economic operators more aggressive

Policy – Promoting Equality through Transparency

• Emphasis on performance and growth as engine of equality, on public sector equality duty

• Public sector organisations will be judged on outcomes and therefore have a responsibility to consider equality as part of every procurement.”

• Consultation ends 10 November 2010

http://www.equalities.gov.uk/news/specific_duties_consultation.aspx.

Thank you for listening Margaret Davisemail; margaret.davis@ffw.comDirect dial: 0207 861 4187