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Gender equality duty

  1. The requirements on public authorities
  2. What is a public authority?
  3. The general duty
  4. The specific duties
  5. General equality schemes
  6. The gender equality duty in employment
  7. Discrimination in pay systems
  8. Gender impact assessments
  9. Procurement
  10. PCS priorities

Part IV of the Equality Act 2006 comes into effect on 6 April 2007 and introduces a new duty on public authorities to promote gender equality between men and women.

Like the race duty and disability duty, the gender duty requires public authorities to develop and produce a gender equality scheme in consultation with stakeholders (including trades unions) and to conduct gender impact assessments on policy decisions including employment policies.

The requirements on public authorities

Gender equality schemes should be produced and published by 30 April 2007 and set out the authority's objectives for the next three years including how it intends to achieve those objectives. Public authorities should therefore be engaging now in consultation with trades unions and other stakeholders.

The gender duty includes both a general duty and specific duties and a summary of the provisions of the act are set out below. The duties are governed by a code of practice published by the Equality and Human Rights Commission.

It is recommended that union reps who are involved in consultation and negotiations with their employer should refer to the detail in the code of practice.

What is a public authority?

The gender duty applies to all functions of every public authority (with limited exceptions for Houses of Parliament, the Scottish Parliament and the security and intelligences services, including GCHQ). It also applies to certain private or voluntary bodies when they are carrying out a public function.

PCS takes the view that responsibility for compliance with the duty lies with the Parent Department rather than with individual agencies or non departmental government bodies (NDPB's) and this is an issue that should be raised by negotiators and reps as part of the formal consultation process.

The general duty

This places a legal duty on all public authorities when exercising their functions to have due regard to the need to:

  • Eliminate discrimination and harassment that is unlawful under the Sex Discrimination Act 1975 - this includes discrimination on the grounds of gender reassignment - and covers direct discrimination, indirect discrimination, harassment and victimisation as well as discrimination that is unlawful under the Equal Pay Act 1970 and
  • To promote equality of opportunity between women and men

The general duty applies to all public authorities in respect of all of their functions i.e.

  • Policy-making
  • Service provision
  • Employment matters

It also applies in relation to services and functions, which are contracted out and to private and voluntary bodies carrying out public functions but only in relation to those specific functions. The obligation to ensure that the gender equality duty is being complied with remains with the public authority responsible for placing the contract.

The code of practice identifies the following steps that public authorities should take in order to comply with the general duty:

  • Gathering and analysing information
  • Consulting stakeholders (including trades unions)
  • Carrying out impact assessment
  • Prioritising and implementing gender equality objectives
  • Reporting and reviewing

The specific duties

The specific duties set out the steps that a public authority should take in order to meet the general duty and these include the need to:

Prepare and publish a gender equality scheme showing how it intends to fulfil the general and specific duties and setting out its gender equality objectives

In preparing a scheme the authority must:

  • Consult employees, service users and others including trade unions
  • Take into account any information it has gathered or considers relevant as to how its policies and practices affect gender equality in the workplace and in the delivery of its services
  • In formulating its overall gender equality objectives consider the need to have objectives to address any causes of the gender pay gap
  • Ensure that the scheme sets out the actions the authority has taken or intends to take to:
  • Gather information on the effects of its policies and practices on men and women in employment services and performance of its functions
  • Use the information to review the implementation of the schemes objectives
  • Assess the impact of its current and future policies and practices on gender equality
  • Consult relevant employees service users and others including trade unions
  • Ensure implementation of the scheme objectives
  • Implement the scheme and their actions for gathering and using information within three years of publication of the scheme unless it is unreasonable or impracticable to do so
  • Review and revise the scheme at least every three years
  • Report on progress annually

General equality schemes

It is permissible to have a single equality scheme that incorporates the race, disability and gender duties but public authorities must ensure that they clearly meet the requirements of the gender equality duty (and the race and disability duties) by including specific objectives on gender equality

The gender equality duty in employment

The specific duties require public authorities to have due regard to the need to eliminate unlawful discrimination and harassment in their employment practices and actively promote gender equality within the workforce including discrimination and harassment of transsexual people on grounds of their gender reassignment

The EOC code of practices proposes that the most common issues that should be considered in the area of employment are:

  • Ensuring fair recruitment processes
  • Avoiding concentration of women and men into particular areas of work and addressing it where it already exists (occupational segregation)
  • Promoting and managing flexible working
  • Ensuring high level part time work and supporting part time workers
  • Managing leave for parents and carers
  • Managing pregnancy and return from maternity leave
  • Eliminating harassment including sexual harassment
  • Eliminating discrimination against and harassment of transsexual staff and potential staff
  • Grievance and disciplinary procedures
  • Redundancy
  • Retirement
  • Equal Pay
  • Work based training opportunities

Discrimination in pay systems

The specific duties require public authorities when setting their overall objectives to "consider the need to have objectives that address the causes of any differences between the pay of men and women that are related to their sex". There is no requirement however to undertake an equal pay review, although this is recommended good practice.

The code of practice does recommend however that in setting objective to address gender inequality in pay, the authority should gather evidence on the impact of caring responsibilities and the extent of occupational segregation in their workforce.

The PCS national and equal pay unit will be issuing separate guidance to pay negotiators on how the Gender Equality Duty can be used to support negotiations on equal pay issues.

Gender impact assessments

A gender equality scheme must set out the actions that the authority has taken or intends to take to assess the impacts of its policies and practices or their likely impact on gender equality.

For the purpose of meeting the duty, policies and practices cover all the proposed and current activities, which the authority carries out including its employment and service delivery functions.

For new policies and practices, the Equality and Human Rights Commission code of practice recommends that impact assessments are most effective when they are carried out early in the decision-making process in order to inform the process of policy-making and to enable any changes to the policy or practice before it takes effect.

The code of practice recognises that not all policies and practices are equally relevant to gender equality and suggests that impact assessments should be undertaken as a process of initial screening for relevance followed by a more detailed impact assessment and remedial action if appropriate.

The process recommended is:

  • Initial screening to identify the most relevant policies and practices
  • Remedial action to eliminate discrimination or harassment and to promote equality based on initial evidence from the screening and/or
  • Subject the policy to a more detailed assessment

    In screening a policy or practice the core questions to consider are:

    • Is the policy or practice a major one in terms of size and significance for the authority's activities?
    • Is there any indication that although the policy or practice is minor it is likely to have a major impact on gender equality? (Not just numbers of people affected but the seriousness of the potential impact)

    Additional useful screening questions are:

    • Is there any evidence that men and women have different needs experiences concerns or priorities in relation to the issues addressed by the policy or practice?
    • Is there evidence that particular groups of women or men have particular needs in relation to this policy or practice?
    • Of those affected by the policy what proportion are men and what proportion women?
    • If more women or men are likely to be affected by the policy or practice, is that appropriate and consistent with its objective?
    • Where the policy or practice is intended to achieve a particular outcome what is the evidence for the likely outcomes on men and women?
    • Could the policy unintentionally disadvantage people of one sex or the other and for employment policies could it disadvantage transsexual women and men?
    • It is essential to consider not just the intended consequences of the policy or practice but also any unintended consequences that might prevent it being effective for one sex or the other

Procurement

The gender equality duty also applies to services and functions, which are contracted out and to private and voluntary bodies carrying out public functions but only in relation to those functions.

Where a contractor is carrying out a public function on behalf of a public authority, the legal liability for the gender duty in relation to that function remains with the public authority that contracted out that function.

The code of practice contains detailed guidance on the actions that public authorities are required to take in relation to contracted out services and the procurement process

Enforcement

Enforcement of the gender equality duty lies with the Commission for Equality and Human Rights (CEHR), the body that will replace it.

The process of ensuring compliance will involve the EOC monitoring compliance with the duty and working with public authorities to improve any areas of non-compliance. If this approach is unsuccessful, the EOC can then issue a statutory notice to comply and if no improvement is made can apply to a county court (or equivalent in Scotland) to have that compliance notice enforced.

It is also open to the EOC and to any interested party to bring judicial review proceedings to challenge non-compliance

PCS priorities

The PCS national women's forum has identified the following issues, which they believe should form part of the development of any gender equality scheme. These might be useful to negotiators and to any PCS Reps or members involved in the consultation process of setting up a scheme:

  • Consultation should be meaningful
  • Statistics should be disaggregated in order to identify the different impacts of policies for example on black women and on disabled women and to address multiple- discrimination
  • Flexible working and family friendly policies including paid time off for caring responsibilities should be made more widely available
  • Mentoring and shadowing opportunities should be offered to support promotion and progression opportunities
  • Grievances and complaints should be monitored and action taken where any gender differences can be identified
  • Recruitment and vacancy advertising policies should be monitored to identify any inequalities
  • Promotion and vacancy filling procedures should be monitored and action taken where any gender differences can be identified
  • Supportive networks should be provided (and facility time for trade union equality initiatives and committees)
  • Appraisal schemes should be monitored
  • Relocation and job losses should be monitored
  • Sickness absence policies should be monitored
  • Occupational segregation and equal pay issues should be addressed
  • Health and Safety policies should take account of gender differences
  • Research should be conducted into the effect of work processes and any adverse impacts on women

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