A public body and the benefits of embracing the Equality Duty
A leading employment law QC member of the DLA has provided the following example which illustrates how, by incorporating equality requirements in a contract with an external supplier, a public authority can not only secure good equality outcomes for the contract in question but also bring about a change in the culture of the supplier itself. In this case, the resulting high equality standards which the supplier had fully implemented enabled it to satisfy an employment tribunal that it had taken ‘all reasonable steps’ and was therefore not liable for the alleged discrimination by its employees.
My client is a large, international private sector business. It submitted a tender for a contract with a London-based public body. To win the contract, it had to demonstrate compliance with various equality and diversity standards and enter into commitments (i.e. in terms of audit, monitoring - with the public body concerned - and review) for the future. The public body concerned set high standards in terms of equality and diversity and joint monthly monitoring meetings were established at a high level.
My client decided to embrace these requirements not just in that part of the business engaged in the particular contract with this public body but across its operations in the UK. It set itself yearly and 5-yearly 'targets', set about a completely new programme of diversity training and awareness and put in place a number of other measures to address what appeared to be areas where it could do more in terms of equality and diversity. Although the company had previously had in place equal opportunities policies, this was a change to a far more pro-active agenda and everyone I spoke to (from the Director of HR, senior management, first level supervisors etc.) said it had brought about an entire change in culture - a real wind of change.
I was instructed by this client in relation to a case in the employment tribunal when it was defending allegations of a ‘culture of racism’ by four claimants. One claimant withdrew his allegation, two claims were dismissed and the fourth very similar claim was postponed due to illness. Significantly, the employment tribunal found in the alternative that my client had established its defence under s.109(4) - that it had taken ‘all reasonable steps’ to prevent its employees from doing the acts in question. This is the first time, in over 20 years at the Bar, that I have had personal experience of an employer succeeding in this defence.
The main point in the above example is how a public authority could - by proactively engaging with its statutory equality duty and using a contract with a private sector organisation to do so - bring about a lasting positive change in the culture of that organisation.
* Source: Submission to the Review of the Public Sector Equality Duty, Call for Evidence[April 2013] : Discrimination Law Association