The Act strengthens and extends the scope of the Race Relations Act 1976. It requires all public functions to be carried on without racial discrimination and imposes on certain specified bodies general and specific duties to promote racial equality. It also gives the Commission of Racial Equality (“CRE”) enhanced powers to issue statutory guidance and enforce the specific duties. Although it is targeted primarily at the public sector, standards required of public bodies will also influence practice in the private sector in a number of ways, discussed below.
Prohibition on discrimination – in force 2nd April
Under the Act, with effect from 2nd April 2001 all “public authorities” are prohibited from racial discrimination while carrying out any public function. “Public authority” is widely defined as "any person certain of whose functions are functions of a public nature". This covers manifestly public authorities, such as central and local government, NHS trusts, the police service and state-run prison services. It also covers private organisations which regulate professions or industries or to which public functions (such as running schools or prisons) have been outsourced. Anyone carrying out a “function of a public nature” must not discriminate in so doing.
The following types of discrimination are unlawful:
- direct discrimination - treating someone less favourably than others on racial grounds;
- indirect discrimination - where a condition or requirement is applied equally to everyone but the proportion of a racial group that can comply is considerably smaller than the proportion of persons not of that racial group who can comply, this will be unlawful if it cannot be justified on non-racial grounds and it causes a detriment to the person of the racial group concerned who cannot comply;
- victimisation - treating someone less favourably for having made or supported a complaint of racial discrimination.
Individuals will be able to bring proceedings for unlawful discrimination in the tribunals or courts in the usual way.
Duty on scheduled public authorities to promote racial equality – general duty – in force 2nd April
While all “public authorities” are subject to the prohibition on discrimination set out above whilst carrying out their public functions, an additional positive duty applies to certain specified bodies. The Act requires that, in carrying out their functions, the public authorities listed in Schedule 1A to the Act must have “due regard” to the need “to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between people of different racial groups” (referred to here as “the duty to promote equality”). The scheduled authorities cannot divest themselves of this duty by outsourcing their functions – they remain responsible for complying with this general duty even if they have contracted out some of their functions to private or voluntary organisations.
This general duty came into effect on 2nd April 2001. The Act does not specify what is required by this general duty. However, the CRE’s non-statutory general guidance on the scope of the duty issued on 2nd April and the Government’s consultation document Race Relations (Amendment) Act 2000: New laws for a successful multi-racial Britain (February 2000) both note that the duty is proportionate, i.e. the weight given to racial equality should be proportionate to its relevance to a particular public function. Authorities should define their public functions and then assess the impact on racial equality of current and proposed practices. Ethnic monitoring of the workforce and a publicly stated policy on race equality are also stated to be key requirements in the Government’s consultation document.
Of course, racial equality will always be relevant to all aspects of employment and therefore the CRE recommends that “all authorities should ‘equality-proof’ their employment policies, procedures and practice, and take all necessary steps to prevent discrimination”. The CRE suggests that this will involve auditing the workforce, comparing it with the population from which employees are recruited, checking for disparities in the success rates of job applicants, identifying and removing barriers to equality, reviewing policies and practices, considering lawful positive action measures, and ensuring any required changes to policies and practices are fully implemented throughout the organisation.
Duty on scheduled public authorities to promote racial equality – specific duties – not yet in force
The Act empowers the Home Secretary to impose specific duties on particular public authorities to ensure their better performance of the general duty to promote equality. The Government’s consultation document proposes imposing special duties on key central public bodies (including central and local government, the police, and the largest NHS bodies). Such duties would include the preparation and publication of a Race Equality Scheme setting out the proposals to comply with the duties, an analysis of the policies and procedures with a likely racial impact, consultation on proposed policies, the establishment of monitoring systems, the publication of the results of these processes, the establishment of arrangements to ensure access to information and services, and staff training.
There are also proposals for specific duties for educational establishments, requiring bodies to take account of the impact of policies not only on staff but also students and, in relation to schools, parents, with an emphasis on the attainment levels of ethnic minority students. The establishments would also be required to publish a written racial equality policy and monitor the impact of the policy.
In relation to employment, the Government’s consultation document proposes that all public employers subject to the general duty to promote race equality (i.e. all those in Schedule 1A of the Act) should have a specific duty to ethnically monitor staff in post and applicants for jobs, promotion and training. Where the public body employs more than 150 employees, there would also be a specific duty to ethnically monitor and analyse grievances, disciplinary action, performance appraisal (when this results in benefits or sanctions), training and dismissals and other reasons for leaving. It is proposed that the results of such ethnic monitoring be published annually.
The proposals for special duties are currently under public consultation. Orders imposing such duties are likely to be made in July 2001 and to come into effect in November 2001 with a six-month lead in time - so that the duties will have to be complied with by May 2002.
Scheduled public authorities
Currently Schedule 1A includes:
- Ministers and central government departments, armed forces
- Local authorities, regional development agencies and enterprise networks
- Police authorities
- Health authorities, health boards, NHS trusts and primary care trusts
- Governing bodies of maintained schools, colleges and universities
- The Housing Corporation, Scottish Homes, housing action trusts
CRE codes of practice
The Act allows the CRE to issue statutory codes of practice in relation to any aspect of the general or specific duties to promote racial equality, to provide practical guidance to public authorities on how to fulfil their general duties and give examples of best practice. At this stage, six codes are proposed: one each for central government, local government, the police, educational bodies and the NHS plus a generic code to sweep up the remaining areas. These are expected to be consulted on and laid before Parliament in the summer and to come into force in November 2001. Although not legally binding, these codes will be admissible as evidence and taken into account by the courts and tribunals in determining whether a particular duty has been breached.
CRE powers of enforcement
A significant difference from the provisions of the Race Relations Act 1976 is that, in relation to the specific duties, the CRE will now have the power to issue compliance notices requiring compliance and/or the provision of written information, which can be enforced directly through the courts.
The general duty cannot be enforced by compliance notice, but the CRE or an individual or other organisation could still apply for judicial review. Compliance with the general duty could also be the subject of inspections or audits by appropriate bodies (eg HM Inspectorate of Prisons).
Private sector companies
Private sector companies may be affected by the Act in a number of ways.
Where they carry out functions of a public nature (because they have been outsourced to those companies), they will have a duty not to discriminate in the carrying out of the functions.
The general duty to promote equality applies only to public authorities listed in Schedule 1A of the Act and does not apply to private companies. However, the scheduled public authority must have regard for its general duty when making arrangements for its functions to be carried out by a private company. This means that the authority will be expected to take account of its duty when setting criteria and deciding who should be awarded contracts or grants. Further, if racial equality considerations are relevant to the particular function being contracted out, the authority will be expected to impose non-discrimination and/or racial equality performance standards as contractual obligations on the private company. Such contracts should also provide for effective monitoring and enforcement.
The general duty may also be filtered down to certain private companies in a similar way by another route. Some of the scheduled public authorities regulate certain professions (such as the Audit Commission, Institute of Chartered Accountants, Law Society, Financial Services Authority and the Bank of England). In complying with their own duty to promote racial equality, these regulatory bodies may consider themselves obliged to impose similar obligations on companies in the profession they regulate. Other scheduled bodies which maintain certain standards (such as Investors in People UK and the British Standards Institute) may also consider that their duty requires them to introduce additional ethnic monitoring standards. It is to be hoped that the CRE’s general Code of Practice will provide some guidance on this issue.
© Herbert Smith 2002
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