The Equality Bill: Impact on the construction sector
The Equality Bill 2009 - 2010, which was published in April 2009, is currently passing through Parliament. The Government has indicated that most of the Bill is due to come into force in October 2010, with Public Sector Equality Duties to come into force in April 2011. There is ongoing consultation on non-statutory guidance and Codes of Practice, and Policy Statements have been published.
Summary of the Bill
The Bill has two main purposes – to harmonise discrimination law, and to strengthen the law to support progress on equality. The Bill will bring together and re-state existing discrimination legislation. The Bill will also strengthen the law in a number of areas.
The Bill currently spans 210 clauses and 28 schedules. The proposed changes will affect many areas of business, including employment practices, age and gender discrimination and so on.
This note highlights the proposed change in the law in respect of “reasonable adjustments”, and draws attention to proposals in relation to procurement by public authorities.
The main change affecting construction operations and buildings will be to make it easier to claim “reasonable adjustments” from service providers.
It would no longer be necessary to show, as under existing law, that the provider's practices, policies and procedures make it “impossible or unreasonably difficult” to access the service. In relation to “physical features”, such as access to and design or layout of buildings, or fixtures or fittings there is a new duty. The new duty is a requirement, where a physical feature puts a disabled person at “a substantial disadvantage… in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”. In addition, if a disabled person would, but for the provision of an auxiliary aid, be put at such a disadvantage there is a new duty to take such steps as it is reasonable to have to take to provide the auxiliary aid.
A person has a disability if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
A failure to comply with the duties is a failure to comply with a duty to make reasonable adjustments, with no defence of justification.
The Government recently agreed amendments to the Bill proposed by the House of Lords so that 'substantial' will be defined to mean 'more than minor or trivial'.
The new, more onerous, duty will mean that when commissioning and designing new buildings, and in relation to existing buildings, service providers will need to take greater care to ensure that disabled persons are not at a “substantial disadvantage” when compared with others who use the buildings. This will be all the more important when the Bill is enacted since there will be greater public awareness of the differences between the current and new legislation and the fact that it may be easier to make claims for reasonable adjustments.
Under the Bill the Government may impose duties on a public authority that is a contracting authority within the meaning of the Public Sector Directive in connection with its public procurement functions. (A failure in respect of a performance of such a duty imposed will not confer a cause of action at private law).
In a Policy Statement published in January 2010, the Government Equalities Office (“GEO”) said although public bodies should already be taking equality into consideration as part of their procurement processes under the existing public sector procurement equality duties, it did not believe this happens as frequently or as consistently as it could. The GEO had therefore proposed that a legislative imperative was needed to drive up performance and consistency in the use by public bodies of their procurement activities to contribute to equality outcomes.
The GEO said it will require public bodies that are also contracting authorities in relation to their public procurement activities (excluding purchasing activities which fall below the thresholds set by the Public Sector Directives) to:
- consider using equality-related criteria, where they are relevant to the subject matter of the contract and are proportionate; and
- consider using equality – related contract conditions where they relate to the performance of the contract and are proportionate
The GEO said that it continues to believe that “poor equality performers should not benefit from public sector procurement and that this explicit message should be made clear to public authorities when considering who to invite to bid for contracts and to potential suppliers when considering bidding”.
The GEO intends to build on current best practice guidance in order to provide clarity in this regard, and to ensure that appropriate quality considerations, such as whether a potential contractor has breached discrimination legislation, are made at the earliest stage in the procurement process.
The message is clear. Public authorities will be expected to do more in its procurement activities to further equality. If they are to participate in publicly procured contracts, contractors will need to ensure that they themselves have complied and will comply with existing and proposed equality legislation (in all areas) and have evidence of this. If they are not already doing it, to demonstrate compliance with discrimination legislation, contractors should carry out “equality audits” of their organisations as soon as possible.