Legal Q&A: Let's show some positive action

In a final monitoring and enforcement report, the Commission for Racial Equality (CRE) (which was replaced by the over-arching Equality and Human Rights Commission (EHRC) on 1 October) recently announced that not a single government department was complying with its duty to promote equality of employment under the Race Relations Act.

I heard some government agencies and departments had been criticised by the CRE. What was it about?

The race relations legislation includes 'positive duties' for public bodies to promote racial equality and harmony. This is sometimes referred to as the 'race equality duty'. Public bodies are required to put in place a number of processes to help them meet these obligations. These include agreeing and implementing 'race equality schemes' under which the organisation is meant to scrutinise and monitor its policies and procedures on a rolling basis.

The item that seems to have captured the media's interest is the fact that at its final meeting, the CRE reviewed compliance and concluded that a number of public bodies were falling short of making good progress on these processes in respect of the race equality duty.

What did the CRE decide?

Before its demise, the CRE had initiated enforcement action against seven government departments and agencies that had failed to make the required returns to the CRE on the state of progress on their race equality schemes and the race equality duty. The CRE was also considering naming more departments and agencies that had failed to follow the correct processes. In addition, the CRE sent a clear message that this work should be reprioritised by the EHRC.

What happens next?

The EHRC will review CRE's final report and the handover work it has initiated. It will do the same for the other two legacy commissions at the same time as deciding its priorities for its first year.

The legacy commission can't insist that the EHRC does things in any particular order, but it has committed to "building on the legacy of the old commissions" to "benefit some of the most disadvantaged and voiceless people in society". It will want to ensure that its priorities have the most impact on its mission to ensure that everyone has a fair chance to participate in society.

Was the CRE covered by the positive duty?

Yes it was. Ironically, a report by the Public Interest Research Unit suggested that the CRE had not been able to meet some of its process duties because of HR resource shortage. It is possible that a similar resourcing issue has impeded the compliance of other public bodies.

I am responsible for equality and diversity issues in my organisation, which is a public body. What should I do on the race equality duty?

Get your processes right. The duty is essentially measured through process, rather than outcome, so ensure the actions you committed to in your race equality scheme several years ago are well in hand, and hopefully completed. You should also review your position action initiatives.

In recent years, some of these have been found to be unlawful, because of an over-enthusiastic interpretation of what you are allowed to do. This is not only open to legal challenge, but can be counter-productive. You should prioritise what the organisation wants to achieve.

I am responsible for equality and diversity issues in my organisation, which is not a public body. What should I do on the race equality duty?

Nothing directly. The duty does not bind non-governmental bodies, however large and important, although many organisations want to get ahead in having good robust diversity initiatives that are measurable and effective.

You also need to be careful not to do anything that is unlawful under anti-discrimination rules. Organisations sometimes neglect small measures that can help to ensure non-discrimination in favour of eye-catching initiatives that may not deliver much in the way of change. So review your equality policies and recruitment and promotion practices.

Fair and open processes with equal opportunities for all are much more likely to get support from across the whole spectrum of staff. They can also be readily defended if there is a legal challenge.