There is no longer a specific legal requirement for English institutions to undertake an equality impact assessment (although this requirement covers Scotland, Wales and Northern Ireland). We are, however, legally required to demonstrate that we have given ‘due regard’ to the aims of the general equality duty. In practice this means that equality considerations are embedded into our decision-making processes and that equality is considered when we are developing key University policy – so undertaking an equality analysis of decisions and policy before they are implemented. Further guidance on the equality analysis process is set out below. The Equality and Diversity Team can also advise on this process as necessary.
The public sector equality duty (the equality duty) is made up of a general equality duty which is supported by specific duties. The general equality duty requires the University, in the exercise of its functions, to have due regard to the need to:
The University is required to have due regard to the aims of the general equality duty when making decisions and when setting policies. Understanding the effect of our policies and practices on people with different protected characteristics is an important part of complying with the general equality duty. Failure to undertake equality analysis could constitute a breach of the general equality duty, which could give rise to judicial review where no or inadequate analysis has taken place.
Under previous equality legislation there was a specific requirement for organisations to undertake ‘equality impact assessments’ that were required to follow a prescribed format. However, under the Equality Act 2010 the exact requirements in this area are less clear – there is no prescribed format for assessing the impact of policy/decisions and a shift from formulaic, process-heavy ‘equality impact assessment’ documents to a proper analysis of the effect on equality of the policy/decision itself. There is also a change in terminology in the legislation from ‘equality impact assessment’ to ‘analysis of the effects on equality’. This indicates a move away from the prescriptive production of a document to more of a focus on the quality of the analysis undertaken.
Principles established under previous legislation
Previous legislation relating to race, disability and gender equality introduced the concept of ‘equality impact assessment’. It established some general principles that illustrate what having due regard means in practice. Organisations covered by the general equality duty must ensure that:
Case law also states that it is good practice to keep records of its consideration of the aims of the general equality duty when making decisions. Documenting the findings of any equality analysis will enable the University to show that the general equality duty is being met. It was held in R (Kaur and Shah) v. London Borough of Ealing that:
‘The process of assessments should be recorded… records contribute to transparency. They serve to demonstrate that a genuine assessment has been carried out at a formative stage. They further tend to have the beneficial effect of disciplining the policy-maker to undertake the conscientious assessment of the future impact of [his/her] proposed policy.’
If a legal challenge is brought, it is likely to be more difficult to demonstrate ‘due regard’ if no records have been kept. Minutes of meetings where equality-related issues are discussed should suffice.
Equality analysis on policies (for example, our staff recruitment process, student admissions policy, promotion and progression procedure)
Any potential impact on equality should be considered throughout the process of developing a policy. It is not advisable to wait for information to be available on the actual impact post-implementation as this will prevent the equality analysis from influencing the development of the policy. The impact of any final policy should be assessed in relation to relevant protected characteristics and consideration should be given to any refinements to the policy that may be necessary in light of this information. It is good practice to periodically review policy – it is proposed that equality analysis should form part of any review. For example, the University will be monitoring the impact of the new promotions and progression procedure in relation to certain key protected characteristics, with a particular focus on gender. Equality data (such as success rates by gender) also informed the development of the current promotions and progression procedure.
Equality analysis should start early in the policy development process or at the initial stages of any key decision-making. Equality considerations are to be taken into account both when decisions are made and after policies are in place. There is no point in considering the impact of policies on equality if the findings are not given active consideration in our policy development and decision-making processes.
Equality analysis on decisions (for example, closure of a programme, major restructuring, or other operational change)
Based on recent case law, the highest risk area relates to challenges being made against decisions. For example:
R (Rahman) v Birmingham City Council (2011) – challenge against decision to terminate funding for legal advice services – no material consideration of race and disability equality duties.
Luton BC v Secretary of State for Education (2011) – government acted unlawfully in failing to consult and comply with equality duties when scrapping Building Schools for the Future Programme.
Equality analysis should take place at the initial stages of any key decision-making. A template has been developed to highlight the issues that should be considered, depending on the decision that is being made.Any potential impact on equality should be considered before any key decision is made. It is not advisable to wait for information to be available on the actual impact post-implementation as this will prevent the equality analysis from influencing the decision. For this reason, equality analysis should be integrated into day-to-day policy-making, business planning and other decision-making arrangements so it is a core part of policy or decision-making processes.
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