The gender equality duty comes into force in Great Britain on 6^th April 2007.  Gender Equality Schemes must be in place by 30^th April 2007 in England.  Gender Equality Schemes must be in place in Scotland by 29 June 2007 (with equal pay policy statements in place by 28 September 2007).Welsh specific duties are not anticipated to be finalised until April 2008.

The Gender Equality Duty [GED] requires public authorities to promote equality between women and men and eliminate unlawful sex discrimination and harassment. This means the public sector will have to develop policies, design services and have employment practices with the different needs of women and men in mind. The duty covers all the functions of a public authority, such as policy-making, public services, and employment.

Instead of relying on only individuals to make complaints about sex discrimination, the duty places the legal responsibility on public authorities to demonstrate that they treat men and women fairly. Thirty years after the introduction of the Sex Discrimination Act (SDA), there is still widespread discrimination. The rights of individuals do not oblige organisations to promote equality. The GED will bring about real change in the culture of public organisations and the onus will be on organisations to promote equality, rather than just on individuals to take cases. It does not replace the right of individuals to take cases against a public authority.

The Code sets out the specific duties and the organisations that are covered by them.

What are the specific duties?

A public authority should:

• prepare and publish a Gender Equality Scheme showing how it intends to fulfill the general and specific duties and setting out its gender equality objectives. 

In preparing a scheme:

• consult employees, service users and others (including trade unions) 

• take into account any information it has gathered or considers relevant as to how its policies and practices affect gender equality in the workplace and in the delivery of its services

• in formulating its overall gender equality objectives, consider the need to have objectives to address the causes of any gender pay gap

• ensure that the scheme sets out the actions the authority has taken or intends to take to: gather information on the effect of its policies and practices on men and women, in employment, services and performance of its functions and use the information to review the implementation of the scheme objectives

• assess the impact of its current and future policies and practices on gender equality

• consult relevant employees, service users and others (including trade unions)

• ensure implementation of the scheme objectives

• implement the scheme and their actions for gathering and using information within three years of publication of the scheme, unless it is unreasonable or impracticable to do so

• review and revise the scheme at least every three years

• report on progress annually

All listed public authorities in England are required to comply with the same specific duties.  This contrasts with the specific duties under the Race Relations Act 1976 (as amended), which have different requirements for different sectors, and the specific duties under the Disability Discrimination Act 1995 (as amended) which have different requirements in relation to information gathering. 

How will the duty be enforced?

The duty will be actively enforced by the EOC then by the Commission for Equality and Human Rights (CEHR) from October 2007. 

The extent to which a public authority has complied with the duty is likely to be assessed on the following criteria:

Information: does the public authority have the information which allows it to understand the impact of its work on women and on men (including transsexual women and men)?  For example, is it collecting and analysing gender disaggregated data?

Consultation: have the relevant people inside and outside the authority been involved in appropriate ways, in providing information and identifying gender equality priorities?  For example, voluntary and community organisations with specialist knowledge on gender equality would be highly appropriate to consult.

Transparency: has information about the gender equality scheme been widely available through appropriate channels and in a variety of formats? This should include details of decision-making processes, priorities, actions as well as updates on progress.

Proportionality: in addressing the duty, has the public authority put its effort and resources where they will have most impact on gender equality (and have they done enough to find out what the most significant issues are?)

Effectiveness: has action been taken and has it delivered the required outcomes, leading to less discrimination and greater gender equality?

The CEHR will be able to issue compliance notices to authorities that are failing to meet the general duty.  The EOC, then the CEHR will be able to issue compliance notices on the specific duties.  These are enforceable in the courts.  Notices state that the authority must meet the duty and instruct them to tell the EOC or CEHR within 28 days what they have done to comply. 

If a public authority (including a private or voluntary organization exercising public functions) does not comply with the general duty, its actions or failure to act can also be challenged through an application to the High Court/Court of Session for judicial review.  An application for judicial review could be made by a person or group of people with an interest in the matter, or by the EOC/CEHR. 

Finally, public sector inspection bodies are also subject to the duty and will therefore have to pay due regard to the duty in their functions.  This means that they will have to integrate the requirements of the gender duty into their monitoring and inspection frameworks and processes. 

For the purposes of the general duty, all public authorities in GB are required to meet the general.  The definition of a public authority for the purposes of the duty is: "public authorities are bodies whose functions are those of a public nature." The most obvious examples of these are government departments, schools, universities, local authorities, the police and the armed forces. They will generally possess special powers, be democratically accountable, be publicly funded in whole or in part, be under an obligation to act only in the public interest and have a statutory constitution.  These bodies are sometimes referred to as 'pure public authorities'.   More detail on what constitutes a public body can be found in Appendix A of the England and Wales Code of Practice.

A private body may also be subject to the duty when they are performing public functions, such as a private company operating prisons.  They are covered only in relation to those functions.  It would ultimately be up to a court to decide on the specific facts of the case, whether or not the duty applies.  The following extract from Appendix A of the England and Wales Code of Practice provides some pointers:

As the law presently stands, a private body may be held to be performing public functions and thus subject to the gender equality duty in relation to those functions if:

• it is publicly funded

• it is exercising powers of a public nature directly assigned to it by statute; or

• it is taking the place of central or local government

• it is providing a public service

• its structures/work are closely linked with the delegating/contracting-out state body

• there is a close relationship between the private body and any public authority.

Additional factors which may be relevant in determining whether or not a body is carrying out a function of a public nature include:

• the extent to which the private body is supervised by a state regulatory body

• the fact of supervision by a state regulatory body.

Whether or not a particular organisation is actually subject to the duty directly will turn on the particular circumstances in each case. 

Can we do just one scheme for the gender, race and disability duties?

Yes, but to comply with your legal obligations you scheme must fully satisfy the criteria for all three duties.  The desired outcomes for gender, race and disability must all be clearly and comprehensively set out in the scheme. For further reference on the interaction between the three duties, please consult the forthcoming EOC guidance on this subject.

Why does the gender equality duty only cover transsexual people in relation to employment and vocational training? 

The gender equality duty is limited by existing UK law which protects transsexual people from discrimination in work and vocational training (including higher and further education) but not in regards to goods, facilities and services.  A 1999 European Court of Justice case ruled that it was unlawful to discriminate in employment.  The law protecting transsexual people against discrimination in the provision of goods, facilities and services was not changed but a recent European Directive means that discrimination will be prohibited in these areas from December 2007