UNIVERSITY AND COLLEGE UNION
Response to the consultation on the specific duties

The University and College Union represents 118,000 lecturers and academic related staff in higher and further education. Our members are employed in a wide range of institutions from “old universities” to prisons and adult education colleges.

UCU welcomes the Equality Bill. We have long campaigned for the harmonisation and simplification of equality legislation. We are concerned to ensure that the Bill achieves the Government’s stated intention of levelling up with no dilution of existing equality rights.

We welcome the opportunity to respond to this consultation exercise about the specific duties. UCU supports the proposed extension of the public sector duty in the Equality Bill to cover all protected characteristics. 
We view this consultation exercise as extremely important and place much emphasis on how the existing specific race, gender and disability duties will be translated within the new duties. 
However, UCU is disappointed by much of the content of the consultation document. We do not believe the proposals meet the stated objective and principle of no regression and in new areas represent a lack of ambition. 

Q1: Do you think the criteria set out above are the right ones? Please give your reasons.
UCU supports the view that those bodies subject to the existing specific duties will also be subject to the new specific duties. We would not want to see any dilution of this principle. 
It is not clear whether an organisation is expected to meet all four criteria. UCU believes it should be sufficient for an organisation to clearly meet one of the criteria for the specific duties to apply to them.
Q2: Are there any other criteria we should use? If so, what do you suggest?
The key test should be that of no regression and a comparison needs to be made between those public bodies covered by the race, gender and disability duties and those covered by the proposed criteria. If the principle of no regression cannot be met using the current criteria, at that point they will need to be amended.
Q3: Do you agree that public bodies should have a specific duty to publish equality objectives with reference to the relevant evidence and their wider general Equality Duty?
Yes. UCU believes that the specific duty to publish equality objectives must make it absolutely clear how public bodies should gather evidence to inform their objectives. This should include a duty to gather evidence for each of the protected characteristics and to use this evidence to base their decisions about what their objectives should be. 
There should also be an absolute requirement to demonstrate how the involvement of protected groups and consultation with trade unions has fed into the development of the objectives. 
UCU is concerned that the questions in paragraph 5.10 of the consultation document focus exclusively on evidence relating to service use. Questions also must be asked about the public body’s employment function. 
Q4: Do you agree that public bodies should set out the steps they intend to take to achieve their equality objectives?
Yes, this is extremely important. The specific duties, and any accompanying Code of Practice or non statutory guidance, must make it clear that these steps should be published, easily accessible and widely available. They should also be set out in adequate detail to allow for a full understanding of how the equality objectives will be met.
Q5: Do you agree that public bodies should be required to implement the steps they have set out for themselves within the business cycle period unless it would be unreasonable or impractical to do so?
We agree that public bodies should be required to implement the steps set out against their equality objectives. It would be a rather pointless exercise if there was no such requirement.
UCU is nervous about introducing a test of reasonableness or practicality. There should be a very high test placed on the definition of “unreasonable” or “impractical”. Achieving, promoting and implementing equality is not always easy and there are often challenges and barriers. This should never be used as a reason not to meet the public and specific duties.
Q6: Do you agree that public bodies should be required to review their objectives every three years? If not, what time-period do you suggest instead?
Yes, we think a three year review period is sensible and would fit with most public bodies’ strategic planning processes. However, we also believe that the specific duties must make it very clear that there must be an annual process of monitoring, report and review which involves all stakeholders including the trade unions. 
Q7: Do you agree that public bodies should set equality objectives taking into account priority areas stet by the relevant Secretary of State?
We agree that where priority areas are set by the relevant Secretary of State, these should be taken into account when setting equality objectives but we are concerned to ensure that public bodies should not place too much emphasis on these areas. Equality objectives should be based on the evidence gathered as referred to above.  There should not be any reduction in the obligation to set equality objectives in respect of other areas not identified by the Secretary of State.
Q8: Do you agree that public bodies should not be required to set equality objectives in respect of each of the protected characteristics?
No.
UCU is extremely concerned about the proposal that public bodies should not be required to set equality objectives in respect of each protected characteristic. We very much welcomed the extension of the general duty to cover age, religion and belief and sexual orientation. However, if employers are given the choice not to set objectives against one or more of the protected characteristics this will significantly weaken the potential impact of the legislation. We have very real concerns that a number of areas will be put in the “too difficult” box.

UCU is also concerned about the emphasis given in the consultation document to service delivery and service users. We not do want any focus on the obligations on public authorities as employers to be lost.

Q9: Do you agree that public bodies should be required to report annually on progress against their equality objectives, but the means by which they do so should not be prescribed in legislation.
UCU believes that the regulations to introduce the specific duties should prescribe the means by which public bodies should report on progress. This should include detail about how and to whom progress should be published. Our substantial experience in the further and higher education sectors since the introduction of the race duty under the Race Relations Amendment Act suggests that unless these details are prescribed in legislation they simply will not be addressed by public bodies. Our strong belief is that the “light touch” approach will fail.

We believe that public bodies should be required to report annually on progress against equality objectives relating to all protected characteristics. 

Q10: Do you agree that public bodies with 150 or more employees should be required to publish their gender pay gap, their ethnic minority employment rate and their disability employment rate? 
No. We believe they should be required to do far more.
We believe the proposed specific duty is regressive and does not meet the requirement within the current gender duty “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.”
UCU believes this proposed specific duty should be strengthened to require all employers to carry out regular comprehensive equal pay audits. Such audits should cover all protected characteristics. We believe there is a strong case for this given the obligation in Article 141 of the EU Treaty that Member State governments “shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.”

The pay gap between male and female employees remains shamefully wide. In Higher Education the gender pay gap between the mean average earnings of teaching professionals is 18.2%. In Further Education it is 8.6%. (Annual Survey of Hours and Earnings 2008). 

In the further education and higher education sectors UCU, along with the other recognised unions, has national agreements based on EOC guidance calling on employers to undertake regular equal pay reviews. Very few employers have complied and the pay gaps in each sector remain too wide and indeed in the HE sector has recently widened (see appendix). Numerous national pay agreements have required employers to take steps to address the disparity in pay between male and female employees. The voluntary approach is not working. 

UCU is also concerned about the proposals to publish a single BME employment figure and we view this as a regressive step. The current race duty contains detailed monitoring requirements for organisations with only 150 employees. We are concerned that these requirements should not be lost.

	
Q11: Do you agree with the proposal to use the overall median gender pay gap figure? Please give your reasons. If not, what other method would you suggest and why?
No. UCU believes this is too crude a measure and risks being a relatively meaningless figure without substantial explanation. It could potentially mask problematic areas of the pay structure or present a skewed figure due to one or two highly paid individuals. UCU believes employers should be required to publish the pay gap figure for each pay grade or pay band and to set out steps to address any identified disparity in pay. We believe public bodies should be required to follow the EOC toolkit on equal pay reviews. 

Q12: Do you have evidence of how much it would cost to produce and publish this information, and of what the benefits of producing and publishing this information might be?
UCU does not think public bodies would incur substantial costs in producing and publishing the basic information suggested in the consultation document but that these proposals will deliver few benefits. 
However, we do not believe the costs of the proposals we have made for additional information to be produced would be prohibitive. As stated above, the FE and HE employers have already signed up to national agreements committing to undertaking regular comprehensive equal pay reviews on all protected grounds. This should be happening already but now requires statutory force to deliver real change. 
The benefits of producing this information are wide ranging and include: more transparent pay and grading arrangements, ability to meet the general and specific duties, ability to meet equal pay requirements.
Q13: Do you agree with the proposal not to require public bodies to report employment data in relation to the other characteristics protected under the Equality Duty? If not, what other data do you think should be reported on ?
No.
UCU believes public bodies should be required to report employment data in relation to all protected characteristics. The Equality Bill aims to harmonise domestic and European equality and discrimination legislation. We should seek wherever possible to move away from a hierarchy of rights.

Q14: Do you agree with the move away from an emphasis on describing process, to requiring public bodies to demonstrate how they have taken evidence of the impact on equality into account in the design of their key policy and service delivery initiatives and the difference this has made?

No. UCU believes that moving away from the process could lead to worse outcomes and lead to public bodies not fulfilling the general duty. If there is a concern that there has been too much emphasis on process this should be dealt with through non statutory guidance or a Code of Practice.

UCU does not want to see a watering down of the current requirements to impact assess all existing and new policies and procedures. The consultation document wording of “key policy and service delivery initiatives” is therefore concerning. While we agree that the outcome of impact assessment is important, the focus on the process should not be lost. 

Unless the process, including the timing, nature, involvement of relevant people and publication of impact assessments is specified our experience demonstrates that there is a real danger they will become a meaningless exercise.

The new specific duty must be clear that public bodies must demonstrate how they have taken the evidence of equality impact into account at the outset of any decision making process. Unfortunately our experience across further and higher education is that colleges and universities too often undertake impact assessment too late in the process to influence the outcomes.

Q15: Do you agree that public bodies should have a specific duty, when setting their equality objectives, deciding on the steps towards their achievement and reviewing their progress in achieving them to take reasonable steps to involve and consult employees, service users and other relevant groups who have an interest in how the body carries out its functions – or where appropriate their representatives; and in particular take reasonable steps to consult and involve the protected groups for whom the duty is designed to deliver benefits?
UCU believes that the proposals on involvement and consultation do not meet the GEO’s stated aim of non regression. 
UCU believes this proposal represents a significant weakening of the current requirement within the disability duty to involve disabled people and the requirement within the gender duty to consult with trade unions. We oppose the proposal of introducing a test of reasonableness for consulting and involving employees, service users and others. 

We also oppose the proposed appropriateness test for the consultation and involvement of trade unions. We cannot understand how consulting trade unions on issues of equality within the workplace would ever be anything other than appropriate. This test is not needed and if it remains will be used by public bodies to avoid their current obligations. This should be an absolute requirement.

Set out below is  testimony from an experienced UCU disabled representative which demonstrates the current value of the requirement to involve disabled people in the DED and the requirement to consult trade unions in the GED:

The current  requirement within the disability duty to involve disabled people and the requirement within the gender duty to consult with trade unions has been extremely valuable in my institution, and the potential weakening of these requirements in the current proposed specific duty to only "take reasonable steps to consult and involve employees, service users and others who have an interest in how they carry out their functions; or where appropriate their representatives, such a lobby groups and trade unions... (and) public bodies should take reasonable steps to involve and consult the protected groups for whom the duty is designed to deliver benefits," will significantly weaken current practice.  The active involvement of employees, service users trade unions should be an absolute requirement. 

As a direct consequence of the existing requirements in the various legislation to involve disabled staff and trade unions many progressive employers adopted the most participative requirements across the equality strands to ensure the active involvement of stakeholders.  For instance, my own employer ensured that there was trade union representation in the committees that drew up equality schemes / action plans relating to Disability, Gender, Race, Age, Religion & Belief, Sexuality and ultimately our Single Equality Scheme: this informed participation significantly strengthened the resulting schemes.  As a direct consequence of trade union input my institution now marks LGBT History Month annually.  In relation to disability the requirement to consult under the DDA stimulated my employer to establish a Disabled Staff Group to, in part, create a consultation mechanism.  The input from this group, with associated trade union contributions, has resulted in several key initiatives; such as a new staff development policy committed to the provision of full accessible training materials and a commitment to establishing a Disability Leave Policy.  The crucial local impact of both trade union and stakeholder input around the equality agenda has been publically celebrated, in for instance the report of the Commission for Disabled Staff in Lifelong Learning (which highlighted my employer as one of the only examples of good practice around participation in the sector) and my institution's last successful Investors in People inspection which specifically noted trade union encouragement of celebration of LGBT History Month.

Q16: Do you think that imposing specific duties on contracting authorities in relation to their public procurement activities are needed, or are the best way to help deliver equality objectives? Do you think such an approach should be pursued at this time?

Yes, we believe that this is needed and such an approach is long overdue and should be pursued. However, we are concerned that the proposals do not include a requirement to impact assess procurement policies.

Q17: Do you agree that contracting authorities should be required to state how they will ensure equality factors are considered as part of their procurement activities to help contribute to the delivery of those objectives?

Yes. UCU believes the provisions relating to procurement must be as robust as possible and should be widened to include employment and the impact on the workforce.
Q18: Do you agree that contracting authorities should be required to consider using equality-related award criteria where they relate to the subject matter of the contract and are proportionate.
We believe contracting authorities should be required to use equality-related award criteria, not simply to consider it. We are nervous about the test of proportionality and how this will be used.
Q19: Do you agree that contracting authorities should be required to consider incorporating equality-related conditions where they relate to the performance of the contract?
We believe this should be strengthened to require contracting authorities to incorporate equality-related conditions.
Q20: What would be the impact of a regulatory proposal aimed at dealing with suppliers who have breached discrimination law? What might be the benefits, costs and risks?
UCU supports the inclusion of an explicit duty to ask suppliers about breaches of discrimination law. A fair approach would be to also ask for supplementary information about what steps they have taken to amend their policies and practices.
Q21: Do you support the proposal to establish a national equality standard which could be used in the procurement process? If so, do you believe this is achievable through a specific duty or is this better tackled through a non-legislative approach? 
We believe the focus should be on ensuring the specific duties relating to equality considerations in the procurement process are as robust as possible. We are not convinced that a national equality standard would add value.
Q22: Which of the four models do you consider achieves the best balance between joined-up working and senior accountability for equality outcomes, while avoiding unnecessary burdens.
UCU believes the first model should be used as it most closely resembles the requirements within the current disability equality duty. We reject the notion of introducing unnecessary burdens and question the basis for asking for feedback on this basis. We are disappointed that a potential dilution of the current disability duty is presented in this way. These comments also apply to question 23.
Q24: Are there any specific requirements, other than those that we have proposed, which you think are essential to ensure that public bodies deliver equality outcomes in an effective and proportionate manner?
We would like to make a comment about enforcement.
The consultation document makes it clear that the Equality Bill will not change the enforcement procedures for the general and the specific duties. UCU believes the current operation of enforcement procedures needs to be carefully looked at, including the role for public service inspectorates and strategic bodies with responsibility for funding allocations. 
Our view is that the current enforcement procedures are not used to their best advantage by the Commission and that far more needs to be done to ensure that public bodies meet their general and specific duties. Although the Commission has recently intervened at two universities, too little has been done across the further and higher education sectors with the result that there is widespread non compliance. It is time colleges and universities knew they will be held to account and this will be all the more important when there is an extended public sector duty across all equality areas.
Q25: What role do you think the guidance from EHRC should play in helping public bodies implement the specific duties in a sensible and proportionate manner? What do you think it would be helpful for such guidance to cover?
UCU believes guidance from the EHRC should focus on providing practical examples of how to implement the specific duties with detail on the requirements to involve and consult key stakeholders including trade unions. 
UCU supports the need for a Code of Practice with statutory force on the public sector duty and associated specific duties. We would highlight the Codes of Practice produced by the Disability Rights Commission in being particularly helpful in setting out straightforward, practical advice in plain English. We also support the need for a Code of Practice dealing with equal pay.
Next steps
UCU believes far more clarification is needed from the GEO about the status of the current duties and the specific duties attached to them once the Bill receives Royal Assent but before the new PSD takes effect.