The International Experience - The Equality Act
The Equality Act (April 2007) introduced the positive duty for gender equity into UK public authorities. The duty requires public authorities to pay due regard to promoting gender equality and eliminating sex discrimination. This means service providers and public sector employers will have to design employment and services with the different needs of women and men in mind. It requires public bodies to set their own gender equality goals in consultation with their service users and employers and to take action to achieve them.
The new duty is enforceable by law: instead of depending on individuals taking complaints about sex discrimination
The Act is said to be designed to generate policy-making that is sensitive to gender differences, services that are tailored to meet the different needs of women and men, employment practices that challenge occupational segregation and remove the barriers to women reaching their potential, and procurement practice that promotes equality. The gender duty includes any breach or contraventions of the Equal Pay Act (1970) - an act that covers equal pay for work of equal value.
The Act establishes a new single Commission for Equality and Human Rights (CEHR) that will bring together all six strands of discrimination - race, age, gender, disability, religion and sexual orientation - into one unified organization.
The report of the U.K. Women and Work Commission strongly recommended (prior to the passing of the Act):
- Decision makers 'should develop practical, equalities-led procurement advice which actively encourages public sector procuring authorities to promote good practice in diversity and equal pay matters among contractors so that it becomes the norm'
- 'Public authorities should ensure that their contractors promote gender equality in line with the public sector Gender Duty, and equal pay in line with current legislation. This intention should be flagged up in contract documents to ensure that it is built into contractors' plans and bids.'
- 'Government should appoint a ministerial champion of procurement as a means of spreading best practice in diversity and pay matters.'
- 'The government should develop a strategy for the social care sector incorporating issues such as pay, quality of care, qualifications of the workforce and future demand.'
This went further than the Equality Act.
Impact
The Centre for Public Services suggests that:
‘The government’s modernisation policies are increasing the rate at which services and functions are being transferred to the quasi-public/private sector. Understanding these trends and developments should provide an important part of the context in determining the scope of a Duty to Promote Equality… There has been a considerable growth in the last decade of new quasi-public/private companies and organisations to which services have been transferred’ and, ‘the commissioning and procurement process (covering outsourcing and quasi-public/private organisations and companies providing transferred services) will increasingly dominate the management of public authorities. This could have profound implications for equalities groups. It also suggests that a Duty to Promote Equality on public authorities alone will have limited impact.’[40] In a personal communication from Dexter Whifield of the Center he says:
“Basically I think a package of measures is required including:
- TUPE type legislation
- Procurement best practice
- Rigorous evaluation of the employment proposals and practices in shortlisting and bids to ensure that quality employment is funded in the bid.
- Equality impact assessment to cover all changes in employment and policy.
- Positive duty legislation
- Secondment model – instead of transferring staff are seconded by the local authority to a contractor or joint venture company – arguing this in a number of strategic service-delivery partnership contracts at present. This protects low paid admin women workers.
I don’t think any one mechanism alone is inadequate.”
While it is too soon to judge the effectiveness of the positive duty requirements, experience to date does suggest that the keys to success could be:
- there is an ongoing need to make sure that key officials understand the aims and principles of the requirement;
- officials need to be trained not just on appointment but at regular intervals during employment; and
- procedures are developed to enforce and monitor compliance after the contract has been awarded.
Information on the specific impact of the Positive Duties obligations on the pay employment conditions of the staff of contractors to local authorities does not appear to be available. However, it clear from the literature that there is now a will to have positive duty inform contracting out in ways that go beyond the TUPE regulations.
Possible relevance to New Zealand
In many ways the positive duty approach fits the New Zealand current approach to the implementation of equity objectives.
It is prescriptive in terms of the outcomes expected but not the means used to achieve the goals. It is proactive and positive rather than individual complaint based and is supported by assistance and tools for employers. It aims not only to remedy current employment inequities but also prevent inequitable impacts of future policy formation.
Positive duty requirements on New Zealand public entities could require a gender analysis of the impact of polices such as contracting out. Far from being simply a ‘politically correct’ initiative, overseas experience is that it is equally driven by the need for sustainable and quality services.
UK experience would also suggest that for public bodies to be wholehearted in the implementation of the full spirit of positive duty obligations, sufficient resources (especially financial) need to be provided by government.
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[40] Centre for Public Services (2004), op cit.
