Background - New legislation

Legislation: the public sector equality duty

From April 5 2011, higher education institutions (HEIs) in England, Scotland and Wales will have a legal obligation to meet section 149 of the Equality Act 2010 - the Public Sector Equality Duty [see Appendix for full details].  This states that HEIs, and the funding councils, must, in the exercise of their functions, have due regard to the need to-

eliminate discrimination, harassment, victimisation

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Currently, HEIs and the funding councils meet this duty for the protected characteristics race, disability and gender. Now, HEIs and the funding councils will have to meet this duty for the following protected characteristics

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex;

• sexual orientation.

Additionally, the legislation requires that HEIs and the funding councils look to eliminate discrimination by association e.g. carers.

 

Legislation: the specific duties

Underpinning the public sector equality duty are the specific duties (to be announced shortly for England and Scotland, already active in Wales).

English HEIs, and the Higher Education Funding Council for England (HEFCE), will be required to publish information ‘to demonstrate its compliance with the duty imposed by section 149(1) of the Act  ... in particular, information relating to persons who share a relevant protected characteristic who are ... persons affected by its policies and practices.' Information must be published by 31 December 2011.  Subsequent information must be published at least annually.  There are currently no draft specific duties for Scottish HEIs or the Scottish Funding Council (SFC), although previous drafts imply similar requirements will be needed as in England. Welsh HEIs, and the Higher Education Funding Council for Wales (HEFCW), will be required to collect information, for all the characteristics, on:

• the number of people employed

• recruitment

• training

• grievance

• disciplinary procedures

Welsh HEIs must also disaggregate, in respect of the protected characteristic of sex, the number of people employed by:

• job

• pay

• contract type (including, but not limited to permanent and fixed-term contracts)

• working pattern (including, but not limited to full-time, part-time and other flexible working arrangements)

Information HEIs and the funding councils need to gather to meet this requirement

To meet the new legislation, the Equality and Human Rights Commission (EHRC), the regulatory agency for equalities legislation, recommends that HEFCE and English HEIs develop an equality profile of staff, at different grades or levels, to help understand key equality issues in the workforce and meet the duty. This includes any evidence of pay gaps or ‘occupational segregation'. They provide further recommendations to collect information about:

• the number of part-time/full-time staff by protected group

• recruitment, training, performance assessment, promotion, redundancy, and leavers

• grievances, including reported incidences of harassment

• the results of staff satisfaction surveys by protected group

• the rates of return to work of women on maternity leave (allowing institutions to check how their rates compare with other HEIs)

• contract workers

•  public office holders such as the members of your governing bodies

•  In particular, for institutions with 150 staff or more:

•  the race, disability, gender and age distribution of their workforce

• an indication of likely representation on sexual orientation and religion and belief, provided that no-one can be identified as a result

ECU's recommendations

General

HEIs will have to gather equality information for its employees across all the protected characteristics to meet the new legislation.

The HESA staff record already contains information on age, disability, gender, ethnicity, contract type, occupation, etc. ECU recommends extending the record, to cover the new protected characteristics which HEIs will have a legal responsibility to collect equality information on.

Extending the HESA staff record to cover all the protected characteristics will allow HEIs to:

• adopt a consistent approach to information collection

• look at information in greater detail, i.e. cross tabulate with other information in the HESA record such as occupation type, contract type, cost centre etc

• benchmark both externally and internally

• analyse over time (there is rich historical data within HESA that can be built on moving forward).

If HESA data is not gathered on the new characteristics, HEIs will have to look for alternative methods to gather this information to ensure they meet their legal requirements. Some HEIs will already collect this information. Where this information is already collected, e.g. through current HR systems, this can be fed directly into the HESA staff record to ensure there is no duplication of work. Any new questions should initially be voluntary - i.e. HEIs should have the option to provide the question to staff. Again, it is important for HEIs to note that if HEIs do not use the HESA record to drive this information gathering, they will need to gather information by other means to ensure they meet the new legislation.

 

Scope

The funding councils and HEIs will have to provide information on persons affected by their policies and practices (the HE sector).  This will include atypical staff. Atypical staff equality information is required where the information collected is of value and of particular relevance. The information collected to date in this area suggests that a new approach to collecting the information (e.g. surveys, interviews, focus groups) may be required. It is important that information is gathered in this area, though whether it is through comprehensive monitoring should be debated through this consultation.

 

Proposed questions and responses

The proposals below outline the protected characteristics covered by the public sector equality duty. ECU has provided a recommended question and responses. ECU has used its own research, as well as looking at the recommendations of national equalities bodies, and current Census questions, in arriving at these questions.  ECU would recommend that on-going work is conducted between UCAS, HESA and ECU to ensure uniformity in information collection.

Responses have been offered in the order that they appear on the national census. This has been done to aid comparison with the national census. However, a decision to move towards responses being offered alphabetically may reinforce messages that there is no hierarchy in the responses.

To support good information collection moving forward, it will be helpful to provide information to staff on why this information is being collected. ECU has also provided some text around why this information is useful for some of the new protected characteristics. ECU will support HESA with any accompanying text they wish to include or promote on their information gathering forms.

There will need to be a constant approach to how ‘unknowns,' ‘information not sought,' etc are classified. ECU will support HESA in any work around this.

As well as covering the new protected characteristics, HEIs will also need to show how their employment policies do not discriminate against people with caring responsibilities. ECU will provide further detail for an appropriate question to capture this information following engagement work with the sector.

 

1: Age

No change to the current HESA requirements

 

2: Gender

ECU Proposed Question and responses:

What is your sex?

• Male

• Female

• Other

• Unknown

ECU recommends the removal of the option ‘indeterminate' and the addition of ‘other'.  Indeterminate is not an appropriate term to use to describe people who are intersex.  People who are not intersex and who do not regard themselves as male nor female will also not associate with the term.  The use of ‘other' is appropriate for people who associate with the terms or labels intersex, androgyne, intergender, ambigender, gender fluid, polygender and genderqueer.

 

3: Ethnicity

The change proposed is in line with benchmarking against different national census questions, and HESA's approach to meeting these different requirements. ECU Proposed Question and responses: What is your ethnic group?

HESA 2012/13 coding frame		Coverage
		E	S	W	NI
10	White	Y	Y	Y	Y
11	White - Scottish		Y
12	White - Other		Y
13	Gypsy or Traveller	Y	Y	Y	Y
14	Irish Traveller				Y
21	Black or Black British - Caribbean	Y	Y	Y	Y
22	Black or Black British - African	Y	Y	Y	Y
29	Other Black background	Y	Y	Y	Y
31	Asian or Asian British - Indian	Y	Y	Y	Y
32	Asian or Asian British - Pakistani	Y	Y	Y	Y
33	Asian or Asian British - Bangladeshi	Y	Y	Y	Y
34	Chinese	Y	Y	Y	Y
39	Other Asian background	Y	Y	Y	Y
41	Mixed - White and Black Caribbean	Y	Y	Y	Y
42	Mixed - White and Black African	Y	Y	Y	Y
43	Mixed - White and Asian	Y	Y	Y	Y
49	Other Mixed background	Y	Y	Y	Y
50	Arab	Y	Y	Y	Y
80	Other Ethnic background	Y	Y	Y	Y
90	Not known	Y	Y	Y	Y
98	Information refused	Y	Y	Y	Y

 

4: Disability

ECU Proposed Question and responses: [addition of prefer not to say] Do you have an impairment, health condition or learning difference?

No known disability

Specific learning disability (such as dyslexia or dyspraxia)

General learning disability (such as Down's syndrome)

Cognitive impairment (such as autistic spectrum disorder or resulting from head injury)

Long-standing illness or health condition (such as cancer, HIV, diabetes, chronic heart disease, or epilepsy)

Mental health condition (such as depression or schizophrenia)

Physical impairment or mobility issues (such as difficulty using arms or using a wheelchair or crutches)

Deaf or serious hearing impairment

Blind or serious visual impairment

Other type of disability

Prefer not to say [this is additional] Question not answered

 

5: Gender identityECU Proposed Question and responses:

ECU ProposedQuestions and responses:

Is your gender identity the same as the gender you were originally assigned at birth? [voluntary question]

•         Yes

•         No

Gender reassignment is a protected characteristic under the Equality Act. HEIs need to take steps to ensure that they are not discriminating against staff because of gender reassignment.  National data exist that shows more people are now transitioning to their preferred gender but little is known about the number of people who are transitioning or have transitioned and work in HE.  Individual HEIs are unlikely to be able to publish any data on trans staff as numbers will be small.  Therefore national data will be of value to the HE sector.  This should not be compulsory information for institutions as many will not have an appropriate environment for monitoring.

 

6: Pregnancy and maternity status

ECU Proposed Question and responses: Are you currently pregnant or have you been pregnant in the last year?

• Yes

• No

• Prefer not to say

Have you taken maternity leave within the past year?

• Yes

• No

Data is currently not being collected by HEIs on staff pregnancy and maternity, which is now a distinct protected characteristic under the Equality Act. Pregnancy and maternity have been proven by national data and research to have a significant impact on women's careers. Monitoring of pregnancy should be optional. It should be collected annually and on recruitment. Monitoring will enable universities to identify how many staff are likely to be taking maternity leave in future. It will also help the sector as a whole to better understand the impact of pregnancy on career progression. Data will also be able to ensure that the benefits, facilities and services for their staff are adequate in meeting the needs of employees who are pregnant or have taken maternity leave. In terms of maternity, data could be linked through university personnel records without asking the actual question. However, currently maternity return rates are not routinely being recorded within the sector, and so work may need to be done to ensure this information is gathered. Although there is no legal requirement under the Equality Act 2010 to monitor paternity leave and adoptive leave, HEIs may wish to also gather this information to better understand the effect this has on career progression.

 

7: Religion and belief

Different national censuses provide variations in the questions asked, and the answers available, around religion and belief. Therefore HESA will need to consider whether a standard question covering all territories is required. ECU would recommend the following broad question and response set, but with particular categories disaggregated for each region. See Appendix 4 for details of the different questions and responses across the regions. Due to debates around whether this question is leading, ECU would recommend that this question is accompanied by text explaining that its purpose is to ensure its policies and practices do not discriminate against people observing a religion or belief.

What is your religion or belief? [voluntary question]

• No religion or belief

• Christian

• Buddhist

• Hindu

• Jewish

• Muslim

• Sikh

• Any other religion or belief

• Prefer not to say

• Unknown

8: Sexual Orientation

ECU Proposed Question and responses: What is your sexual orientation? [voluntary question]

• Bisexual

• Gay man

• Gay woman/lesbian

• Heterosexual

• Other

• Prefer not to say

Monitoring of sexual orientation will allow HEIs to understand whether sexual orientation has an impact on staff pay, progression and retention.

   

Appendix:

1: Legislation - Equality Act 2010, public sector equality duty (Section 149)

 

(1) A public authority must, in the exercise of its functions, have due regard to the need to-

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to-

(a) tackle prejudice, and

(b) promote understanding.

(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7) The relevant protected characteristics are-

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

(8) A reference to conduct that is prohibited by or under this Act includes a reference to-

(a) a breach of an equality clause or rule;

(b) a breach of a non-discrimination rule.

 

2: ECU current guidance with work in this area

ECU Promoting equality in pay: A guide to conducting an equal pay review, tailored specifically for the higher education sector.

ECU Developing staff disclosure: A guide to collecting and using equality data in higher education.

ECU Advancing LGB equality: Includes a section on monitoring the sexual orientation of staff and students

ECU Trans staff and students in higher education: revised 2010: Includes a section on monitoring the trans status of staff and students

ECU Student pregnancy and maternity: implications for higher education institutions: Includes a section on monitoring the pregnancy and maternity status of students

ECU Equality in higher education: statistical report 2010: Provides national figures for comparison with an  institutions local data

 

3: EHRC guidance

EHRC guidance ‘Equality information and the equality duty: A guide for public authorities' can be found at http://www.equalityhumanrights.com/advice-and-guidance/public-sector-duties/new-public-sector-equality-duty-guidance/

 

4: Regional religion and belief census questions[England and Wales] What is your religion?

[England and Wales] What is your religion?

[voluntary question]

• No religion

• Christian

• Buddhist

• Hindu

• Jewish

• Muslim

• Sikh

• any other religion

• Prefer not to say

• Unknown

NOTE: In the English census, the ‘Christian' category states that this includes ‘Church of England, Catholic, Protestant and all other Christian denominations'. In Wales, the ‘Christian' category states that this includes ‘all Christian denominations.'

[Scotland] What religion, religious body, or denomination do you belong to? [voluntary question]

• No religion

• Church of Scotland

• Roman Catholic

• Other Christian

• Buddhist

• Hindu

• Jewish

• Muslim

• Sikh

• Any other religion

• Prefer not to say

• Unknown

[Northern Ireland] What religion, religious denomination or body do you belong to?

[voluntary question]

• Roman Catholic,

• Presbyterian Church in Ireland,

• Church of Ireland, Methodist Church in Ireland,

• Other [write in]

• None