Discussion paper to Disability Working Group, Satellite Group 2
THE PUBLIC SECTOR DUTY TO PROMOTE EQUALITY OF OPPORTUNITY FOR DISABLED PEOPLE
Purpose
1.
This paper provides information about the new public sector duty to promote equality of opportunity or disabled people which has been introduced through the Disability Discrimination Act 2005.
Changing cultures: why have a duty to promote equality for disabled people?
2. The UK Government considered that the traditional model of discrimination law in itself was insufficient to drive forward the changes in society that are necessary if all people are to realise their potential and make a full contribution to wider society. For example:
- change depends on disadvantaged people enforcing their rights, rather than on bodies ensuring that they meet their responsibilities;
- bodies may act to minimise the risk of legal action, rather than to achieve the full spirit of the law; and
- while the law protects people from discrimination in the future, it does not tackle the consequences of past discrimination.
3. The UK Government decided to tackle the issue by introducing positive, statutory duties to promote equality, which place greater responsibility on bodies to work towards a more equal society. The view is that this will both formalise and spread existing good practice within the public sector.
4. Scottish Ministers are committed to equality for disabled people and asked the Scottish Parliament to allow extension of the new duty to Scottish public authorities.
5. Unlike more traditional types of anti-discrimination legislation that make certain acts of discrimination unlawful, these duties are not reactive. Rather than providing restitution when a person has been treated improperly, they require bodies to proactively eliminate discriminatory practices, policies and procedures. The duty to promote race equality is the best known, and most wide-ranging, of such duties.
General and specific duties
The general duty
6. One of the principal provisions of the Disability Discrimination Act 2005 introduces a duty to promote equality for disabled people. It has been designed to mirror the duty to promote race equality, but takes account of the differences between race relations law, and disability discrimination law. Thus, the Act sets out a
general duty which will require public authorities to have due regard, when carrying out their functions, to:
- the need to eliminate discrimination that is unlawful under this Act;
- the need to eliminate harassment of disabled persons that is related to their disability
- the need to promote equality of opportunity between disabled persons and other persons;
- the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled people more favourably than other persons;
- the need to promote positive attitudes towards disabled persons; and
- the need to encourage participation by disabled persons in public life.
7. The duty is designed to be proportionate, with bodies required to have due regard to eliminating unlawful discrimination and harassment, and to promoting greater equality of opportunity. The duty will not override other legislation or responsibilities - rather, it means that public bodies must take a reasoned and reasonable view of how their activities can affect equality, and take action to comply with the duty.
Specific duties
8. The Act follows the Race Relations (Amendment) Act in providing that
specific duties applying to certain public bodies can be prescribed in regulations. The purpose of imposing specific duties is to assist these public bodies to comply with the general duty. Bodies subject to the specific duty will be listed in the regulations. Listed bodies must publish
a Disability Equality Scheme and must monitor various indicators, particularly in relation to employment.
specific duties under the duty to promote equality of opportunity for disabled people Listed bodies must publish a Disability Equality Scheme that sets out how the body will fulfil its duties to eliminate unlawful discrimination against, and harassment of, disabled people, and promote equality of opportunity in relation to disabled employees, disabled service users, and disabled people generally. The scheme would: 1. set out the methodology the body will use to assess the impact of its existing and proposed activities on disabled people; 2. demonstrate that disabled people have been involved in producing the scheme and developing the action plan; 3. set out a plan for the actions the body will take over the following three years to fulfil the general duty; 4. set out the arrangements the body will put in place to gather the evidence necessary to track its progress in fulfilling its general duties. Such evidence would include: - measures of the recruitment and promotion prospects of disabled employees and potential employees;
- measures of the accessibility and suitability of services for disabled people;
- in relation to the education of disabled people, measures of the educational opportunities available to, and educational attainment of, disabled people.
5. set out the arrangements for analysing such evidence and updating action plans in the light of the analysis. Listed bodies must demonstrate that they have taken the actions they have committed themselves to, and achieved the appropriate outcomes. Listed bodies must report on their progress Within not more than three years, listed bodies must review and make appropriate revisions to the scheme. Specified Secretaries of State must report on progress towards equality within their sphere of influence. |
Bodies subject to the duties
The general duty
9. The Government intends to apply the duty to promote equality widely across the public sector. The Disability Discrimination Act 2005 uses a generic definition in both the provisions prohibiting discrimination in the exercise of public functions, and to define the bodies subject to the general duty to promote equality. Bodies subject to the General Duty to promote disability equality will not be listed - rather the duty will apply to all bodies carrying out functions of a public nature. It is expected that most public bodies will be covered.
Specific duties
10. The specific duties are designed to assist public bodies to comply with the general duty. Specific duties will be imposed on bodies that:
- have significant direct dealings with disabled service users;
- have significant impacts on the lives of disabled people;
- could be significant employers of disabled people; and
- are of sufficient size to support the duties.
11. Bodies subject to the specific duties will be listed in regulations. In general, bodies that are subject to specific duties to promote race equality will also be subject to specific duties for disability. In addition, cultural and environmental bodies will be subject to the specific duties on disability. Regulations listing Scottish bodies will be made by Scottish Ministers.
Code of Practice
12. The Disability Rights Commission will publish a Code of Practice on the disability duty. The Code will provide practical advice and illustrations of the kinds of activities that will be expected under the duty. A draft is currently available on the DRC's website.
Timescale
13. Subject to Scottish Ministers' views we are aiming to lay Scottish regulations in late 2005 requiring publication of the scheme towards the end of 2006 (our intention is to give bodies at least 12 months from the date the regulations is laid). However, the timing of both will ultimately be for Scottish Ministers to agree.