ISSUE 5 - JULY 2014
Equality Law Briefing
 

The Equality Law Project supports front line organisations to understand and use the Equality Act 2010. The Equality Act 2010 is the most fundamental overhaul ofprevious UK antidiscrimination and equality law.

For further information please contact Poornima Karunacadacharan, Equality Law Project officer on 0207 697 4092 or email Poornima@rota.org.uk.

 
 
Equalities in Focus


Review of the Public Sector Equality Duty in Wales

The Equality and Human Rights Commission in Wales has published its research, which shows that the Public Sector Equality Duty is working effectively in Wales.  All 44 public sector organisations that participated in the research were able to demonstrate how the PSED helps eliminate unlawful discrimination, promote equality and foster good relations.

The Key findings from the research are:

  • Participating organisations described the benefits of the PSED as:
    - Raising the profile of the equality agenda;
    - Providing a clear structure and focus for equality work;
    - and promoting cultures of inclusivity, fairness and respect.
     
  • The Welsh specific duties were valued by listed and non-listed bodies for providing clarity about what needed to be done to implement the duty.
     
  • All participating organisations could provide at least one example of evidence demonstrating progress related to the general duty. More typically organisations could give more than one example.
     
  • Greatest progress had been made in putting in place the foundations to do equality work. There was also some evidence of progress directly related to outcomes for service users and staff.
     
  • This study found no evidence of under-compliance. Compared to other research on the English specific duties this study also found more limited evidence of over-compliance, which is doing more than required as a result of a lack of clarity in guidance.
     
  • Key challenges for participating organisations arose from the insufficient signposting and sharing of practical information. This would help organisations know that they are approaching the PSED in the best way and avoid duplication of effort.

Poor Equalities Data Collection in Scotland the CRER Reports:

Despite the legal duty on public bodies in Scotland to publish information on the Ethnicity of their employees, the Coalition for Racial Equality and Rights (CRER) has found that most organisations are failing on this duty.  The report has noted with concern that information is missing on the ethnicity of about one-third of the workforce in the NHS.  It questions how staff can ask for ethnicity information from patients if they themselves are not being asked for their own details.

The report recommends that:

  • Public bodies need to gather equalities monitoring information on their employees and applicants and to publish this information in an accessible manner;
     
  • Data on employees and applicants should be obtained for as close to 100% as possible;
     
  • The Data Protection Act should not be used as an excuse to negate equalities monitoring responsibilities; and
     
  • All public sector bodies should use a common recording and reporting template for the data.

 
 
Case Law

This is a pick of the most recent judgments in relation to equalities:

R (on the application of Bapio Action Ltd) v Royal College of General Practitioners [2014] EWHC 1416 (Admin)

Any individual wishing to practice as a general practitioner in the UK must have a Certificate of Completion of Training (CCT), granted by the Royal College.  In order to obtain a CCT an individual doctor must pass a Clinical Skills Assessment (CSA).  The CSA was devised, set and supervised by the Royal College of General Practitioners (the first Respondent) and it was approved by the GMC (the second Respondent).  Figures collated by the Royal college show that a significantly higher proportion of BME and South Asian doctors than white doctors fail the CSA.  A number of reports about the CSA had been compiled by medical academics and statisticians, which confirmed persisting differences in outcomes; small but significant bias in the scores given by examiners in the role play test; and highlighted the risk of subconscious racial bias. 

The Claimant issued proceedings in the High Court and contended that the Respondents had failed to comply with the public sector equality duty set out in s. 149 of the Equality Act 2010 (EqA 2010).   All cases up to now have been concerned with the need for a public authority to have due regard to the PSED when proposing to take a decision which will have an impact on the users of existing services provided by the authority.  This case is different in that it concerns what needs to be done to address a long-established state of affairs.

The Administrative Court held that the PSED applied to the GMC as it is a listed public authority and to the Royal College as it exercises public functions.  The GMC was held to have complied with its equality duty by commissioning an expert’s report and acting upon that report.  It collected data from doctors in difficulty, on assessment results, worked on standards for examiners and discussed with the Royal College the recruitment of more BME role players and examiners to address what may be an apparent bias in the assessment.

The Claimant argued that the equality duty required the Royal College to establish training courses itself, to remedy perceived shortcomings in performance on the part of South Asian and BME doctors who failed the CSA.  The Court held that the PSED cannot require the Royal College to consider exercising public functions which it has chosen not to exercise, and that the equality duty applied only to the public functions that it did exercise.  However, the Royal College remains under a continuing duty to have due regard to the need to eliminate discrimination and advance equality of opportunity in the exercise of its public functions of setting and administering assessments which lead to the granting of CCTs. 

Although the Royal College did not carry out a formal equality impact assessment, it was sufficient that it addressed its mind to the need to have due regard by commissioning and considering the expert reports which it had done over the years, together with that commissioned by the GMC.  The Royal College had identified the respect in which, in the discharge of its public functions, it needs to act to eliminate discrimination and identified some of the means by which that need might be addressed and fulfilled.  However, the Court held that the equality duty does not permit a person exercising public functions to identify the need to eliminate discrimination in one of its functions and then do nothing about it.  Doing so would not be “having due regard” to the need to eliminate discrimination, and may even amount to indirect discrimination under section 19 of the Act.  The Court held that both Respondents had taken the necessary steps to comply with the duty to date, noting, however, that a delay in taking further action to address the issue may lead to a future finding that the continuing duty has not been complied with.

 

R (on the application of Bapio Action Ltd) v Royal College of General Practitioners [2014] EWHC 1416 (Admin), Equality Law Reports, Michael Rubenstein Publishing Ltd, [2014] EqLR 409 - 417 

 
 
Best Practice Case Study of the month

 

Building trust through involvement with the Gypsy and Traveller community in Wales

Gypsies and Travellers aren’t ‘hard to reach’ at all, they are ‘seldom reached’ groups and that’s the difference! (Welsh Assembly Government spokesperson).

In Wales, work is being done by the Welsh Assembly Government and by local authorities to increase the involvement of the Gypsy and Traveller community in the decision-making of public bodies. The work to encourage greater involvement by this community in Wales has highlighted that two significant barriers to greater involvement by this community are lack of trust and illiteracy.

Spending time with Gypsy and Traveller communities on site in a way that suited them was an effective strategy to change attitudes, increase trust and confidence and promote involvement.  This approach can have the added benefit of increasing the confidence of communities to communicate effectively with officials such as those from the local authority.

Gypsies and Travellers aren’t ‘hard to reach’ at all, they are ‘seldom reached’ groups and that’s the difference! (Welsh Assembly Government spokesperson).

In Wales, work is being done by the Welsh Assembly Government and by local authorities to increase the involvement of the Gypsy and Traveller community in the decision-making of public bodies. The work to encourage greater involvement by this community in Wales has highlighted that two significant barriers to greater involvement by this community are lack of trust and illiteracy.

Spending time with Gypsy and Traveller communities on site in a way that suited them was an effective strategy to change attitudes, increase trust and confidence and promote involvement.  This approach can have the added benefit of increasing the confidence of communities to communicate effectively with officials such as those from the local authority. 

At a local level, Gwynedd Council has encouraged council officers involved in working with the community to develop an awareness of the Romany, Irish and New Traveller culture, as well as an understanding of issues faced by Travelling Communities.

Because there are high levels of illiteracy, giving Gypsy and Travellers a hard copy of the strategy isn’t really going to work so we actually need to have one to one engagement with the members of the Gypsy Traveller community.  (Welsh Assembly Government spokesperson)

To build capacity and overcome the barrier to involvement posed by high levels of illiteracy, a number of strategies were used. These included using the expertise of specialist and voluntary organisations to develop and deliver easy read versions of documents and speak to people about the issues. Capacity building was undertaken, for example by asking members of the community to work with their own communities to understand and discuss important issues. Steps were also taken to ensure that events were tailored to suit participants. For example, a range of single sex events and events for children and young people were held.  The approach taken of national and local organisations working together can help to increase the benefits resulting, and it can save resources.

Source: Case studies: Equality Impact Assessments [EHRC: 2013]

This case study is part of a resource developed in partnership with the Race Equality Foundation (REF) and collated by Leander Neckles, Equanomics UK.

 
 
News and events


Major consultation by Parliament on “A new Magna Carta?”

In July 2014, Parliament launched a major consultation on ‘Political and Constitutional Reform: A New Magna Carta’ through its Political and Constitutional Reform Select Committee.

The most famous constitutional document in England’s history, the Magna Carta, has its 800th Anniversary next year, but  the Committee has been looking forwards by working on a major project with King’s College London to develop several different visions of what a democratic settlement for the UK could look like. The King’s College research lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way.

Find out more about this here.
 
 

 
 

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