UK Employment: New Duty on Employers to Promote Gender Equality

5/11/2007
Client Alert

Under the Equality Act 2006, public authorities and private sector employers carrying out public functions on behalf of public authorities have a statutory duty to eliminate unlawful discrimination and harassment on grounds of gender and to promote equality of opportunity between men and women.  The imposition of the new gender equality duty, taken together with the duties to promote race equality and disability equality which came into force in April 2001 and December 2006 respectively, represents a shifting of the burden of ensuring compliance with equal opportunities legislation from employees to employers, in recognition of the fact that, despite 30 years of individual legal rights, there is still, regrettably, widespread inequality in the workplace.

The Gender Equality Duty

From 6 April 2007, UK law imposes a general duty on all relevant employers (see Who is Covered? below), when carrying out their functions, to have due regard to the need:

  • to eliminate unlawful discrimination and harassment; and
  • to promote equality of opportunity between men and women.

Some employers are also subject to various specific duties to help them meet the general duty, namely: 

  • to prepare and publish a gender equality scheme, showing how employers will meet their general and specific duties and setting out their gender equality objectives;
  • in formulating their overall objectives, to consider the need to include objectives to address the causes of any gender pay gap;
  • to gather and use information on how the employers’ policies and practices affect gender equality in the workforce and in the delivery of services;
  • to consult stakeholders (i.e. employees, service users and others, including trade unions) and take account of relevant information in order to determine the employers’ gender equality objectives;
  • to assess the impact of the employers’ current and proposed policies and practices on gender equality;
  • to implement the actions set out in their schemes within three years, unless it is unreasonable or impracticable to do so; and
  • to report against the scheme every year and to review the scheme at least every three years.

Where the duty applies, it extends to all functions such as policy-making, service provision, employment matters and in relation to enforcement or any statutory discretion and decision-making. 

Relevant employers must have due regard to the need to eliminate unlawful discrimination and harassment and promote equality of opportunity between men and women in all of their functions.  The Equal Opportunities Commission has published a Gender Equality Duty Code of Practice (the “Code”) to help employers meet the duty.  According to the Code, due regard comprises both proportionality and relevance.  The weight which employers give to gender equality should therefore be proportionate to its relevance to a particular function: the greater the relevance of a function to gender equality, the greater regard which should be paid to it. 

Who is Covered?

The definition of “public authority” is wide and includes any employer which has functions of a public nature, i.e. private sector employers carrying out functions on behalf of a public authority.  An organisation will be exercising a public function where it is in effect exercising a function which would otherwise be exercised by the state and where individuals have to rely upon that person for the exercise of that function. 

A private sector employer may be held to be performing public functions and thus subject to the gender equality duty in relation to those functions if, for example, its structures and work are closely linked with the public authority delegating or contracting-out those functions or there is a close relationship between the private sector employer and any public authority. 

Additional factors which may be relevant in determining whether or not an employer is carrying out a function of a public nature include the extent to which the private sector employer is supervised by a state regulatory body and the fact of supervision by a state regulatory body.  For example, private security firms managing contracted-out prisons are likely to be deemed to be performing functions of a public nature in relation to their prison management functions and therefore subject to the gender equality duty in relation to those functions.  However, a private security firm running a prison will not be covered by the duty in relation to its other private activities such as providing security guards for supermarkets.

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