The Public Sector Equality Duty (PSED) plays a vital role in underpinning union work to tackle discrimination and harassment at work according to the TUC's response to a government review of the duty.
The PSED, which only came into effect two years ago, requires public bodies to pay 'due regard' to equalities in everything that they do.
While the TUC believes that it is far too early to conduct a credible review of the PSED, trade unions have provided a wide range of evidence highlighting the positive difference the duty is making to promoting equality and how it could be improved.
The key findings in the TUC response are:
Positive overall impact in the public sector: the equality duty has enabled the gathering of equality information, greater transparency and accountability, a sense of fairness and a basis for action to improve employer policies or decisions (see paragraphs 3.2-3.8).
Better engagement with protected groups: the duty has encouraged public authorities to engage with and accommodate the concerns of protected groups, particularly with disabled, LGBT communities (3.9). However a weakening of the specific duty on engagement and the cuts environment was undermining engagement (3.10) and better enforcement was also required (3.11)
Improved employment outcomes: the duty has enabled unions to secure improved employment outcomes for protected groups, particularly through reconsideration of redundancy processes, securing reasonable adjustments for disabled workers, and flexible working for women (3.12-3.14). But there was also evidence that protected groups were suffering in the present climate (3.15). Unions also reported that it was too early to assess the impact of the new duty (3.16).
Improved service delivery outcomes: improvements for service users were recorded, particularly for disabled people (3.18), but again, it was a mixed picture (3.19)
Impact on procurement: there was limited evidence from unions of the duty being applied to procurement, perhaps partly because it was not included as a specific duty as originally intended (3.20-3.23).
The overall importance of the PSED: unions were adamant that the PSED played a vital role in progressing equalities. Without it any good work that had been done would be undermined (3.23).
Despite such progress, unions felt that the PSED was far from fulfilling its potential, given a range of limiting factors including: newness of the duty (2.4-2.5); weakening of the specific duties (2.6-2.9); refusal of the government to enact a statutory code of practice on implementation (2.10-2.11); government's undermining of the duty (2.12-2.20); roll-back on national equality standards (2.21-2.28) and cuts in staff and resourcing on equality (2.35 to 2.37). These limiting factors are partly mitigated by the emerging helpful guidance from the courts on what is required to meet the duty (2. 29 -2.34). Recommendations to improve the effectiveness of the duty are included in paragraphs 5.2 to 5.6.
To gather evidence for this response, the TUC together with the Labour Research Department (LRD) conducted an online survey in November and December 2012 of trade union workplace representatives and trade union officers on the effectiveness of the former equality duties and the PSED. A range of other evidence is also included in this response.
To improve the compliance with the duty and to ensure better employment and service delivery outcomes for all in our society, the TUC believes the following needs to be addressed:
The implementation of a statutory code of conduct of implementation of the Public Sector Equality Duty, as well as supporting sector-level guidance;
A detailed review of the different specific duties legislation in English and non-devolved authorities compared to their devolved Scottish and Welsh counterparts, with a view to amending the former, if the latter duties are more effective in delivering positive equality outcomes;
High-level government leadership to ensure that equality is mainstreamed across public authorities. This includes political support for: the collection of good quality information on equality, engagement with those who have been traditionally disadvantaged or under-represented and the need to consider impact on equality at a formative stage of decision-making in a structured and transparent way (i.e. something akin to a proper impact assessment);
A better resourced and independent Equality and Human Rights Commission, willing and able to use its powers and to work with other regulators and stakeholders to support compliance with the duty and to take action against those who fail to meet it; and
Provide statutory right for time off for workplace union equality representatives to perform their duties.
Issued: 19 April, 2013