After more than five years in the making, the Equality Act finally came into force today. However, in addition to the impact that the Act will have on public bodies as employers, it could easily have an even greater impact on the public sector when it comes to budget cuts.
Public bodies are under a lot of pressure to make significant cuts and to make them quickly. They might be thinking about the equalities impact on the workforce, but they need to get to grips with their public service obligations as set out in the Equality Act if they are to avoid legal challenges. The Act requires public bodies to take account of equalities considerations in performing their public functions. They must consider any disproportionate impact on protected groups when making decisions, such as budget cuts.
While many of the provisions are essentially consolidations of existing obligations in separate pieces of legislation, such as the Race Relations Act, Sex Discrimination Act and Disability Discrimination Act, there are significant differences in terms of new definitions and enhanced protection for disabled people.
There is also the new Public Sector Equality Duty which is the expanded ‘due regard’ duty which now applies to discrimination on the grounds of age, sexual orientation and religion and belief, as well as race, gender and disability. This extended duty will probably come into force in April 2011.
Although this is six months away, this is the legal duty already most successfully used to challenge public bodies on equalities. It requires equalities considerations to be factored into policy-making and key decisions about budgets and services, as an integral part of business planning and management rather than an add-on or silo activity. Bodies will need to be factoring the expanded equalities considerations into their thinking well in advance of April, so that any decision or activity taking place after that date can be defended.
We've already seen some examples of the type of challenges we can expect – the Fawcett Society has demanded a Judicial Review of the whole Budget as they believe that it impacts disproportionately on women; and the Equality and Human Rights Commission (EHRC) has written to all government departments, including the Treasury, asking for reassurance that they will comply with equality legislation when making decisions such as budget cuts.
The Equality Act is not something that can be put on the back burner for six to 12 months while public bodies deal with the other pressing issues that they face. Unions and others have already indicated that they will use these equality obligations to challenge decisions by public authorities to cut jobs, budgets and services where they feel that these cuts will impact particularly on groups protected by the legislation. The Equality Act provides many possibilities for challenging spending decisions that impact particularly on women, people with disabilities, particular ethnic groups or age groups.
Difficult decisions for public bodies have the potential to arouse strong feelings and claims could be brought as much for the publicity and political embarrassment factor as for any real prospect of intervention or enforcement. These legal challenges should be preventable though if public bodies ensure that they are fully informed and prepared. Any cuts that are made will require careful analysis of the precise nature of any legal obligations and careful management of service users’ expectations.
Stephen Hocking is a public law partner at law firm Beachcroft
