On 4 December 2006 the Disability Equality Duty will come into force. It will join the broadly similar Race Equality Duty, which has existed under the race relations legislation since 2001. Meanwhile, an analogous Gender Equality Duty is due to come into force in April 2007.
The intention behind the creation of these new duties is to ensure that bodies which exercise public functions “mainstream” equality issues when exercising those functions. “Mainstreaming”, in effect, requires that public bodies, when making decisions, or when developing or implementing new policies, consider the needs of certain sections of society that have historically suffered discrimination as an integral part of the policy-making process.
These duties generally consist of both a general duty to promote equality and specific duties that are set out in regulations. The general duty creates, in essence, mandatory considerations in respect of disability, race and gender equality for public authorities when they formulate policy or take decisions. The specific duties usually require certain, listed, public authorities to create equality schemes setting out particular information in relation to how a public authority is going to go about promoting equality when carrying out its functions.
So, what does this mean for the private sector?
The impact of these new duties on the private sector will come in any interaction they may have with the public sector. The greatest impact is likely to be in relation to outsourcing arrangements. In particular, the legislation giving rise to these duties contain definitions of "public authority" that are broadly similar to that under the Human Rights Act 1998. That is, a body performing a public function will be a "public authority" for the purposes of the general duty. When a public authority outsources any of its function to a private body, to the effect that the private body is, in effect, "standing in the shoes" of the public authority in relation to that function; that private body will be considered a "public authority" for the purposes of the equality duties in relation to that function. Businesses therefore need to consider, when tendering to provide services on behalf of a public authority, whether the provision of those services is likely to be a public function and, if so, whether they are therefore willing to take on the equality obligations that will require.
The equality duties will also impact on the procurement practices of public authorities. The equality duties will need to be taken into account by public authorities in producing tendering information, conducting the tendering process as well as in the resulting contract. For example, public authorities are likely to ensure that their relevant terms and conditions include reference to equality legislation and their equality schemes. Contractual arrangements are likely to require the contractor to comply with equality legislation and may require evidence to demonstrate compliance. Equality matters are also likely to form part of tender specifications and award criteria. A well-informed business is therefore likely to gain a significant competitive edge in procurement processes as a result of these equality duties.
The equality duties will clearly impact on the behaviour of public authorities in their interactions with business. Business would be best to ensure that they are prepared.
Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn. 0131 473 5682