Ian Streets of About Access discusses diversity impact assessment and its continued importance
It may be seen as the scourge of efficient businesses, but the removal of so-called red tape doesn’t always leave things in simple black and white.
Think about it. If the Government made a major change to the country’s various rules and regulations every time a business or lobby group cried foul, we could all be grafting away for 60 hours a week in smoke-filled workplaces.
A more typical response to calls for relaxation is to tweak legislation slightly, bin an old regulation that everyone had forgotten about and generally create the impression of a win-win situation.
So it was in 2012 when David Cameron did away with the need for the diversity impact assessment (DIA), also known to some as the equality impact assessment. Businesses may be tempted to think that the decision ushered in a new era of freedom from this particular strip of red tape and that they could enjoy the mounting savings from not having to worry about how their policies and practices affect the various groups of people in society.
In fact abandoning the DIA made little difference. Organisations have a Public Sector Equality Duty (PSED) and, ironically, one of the most effective ways to ensure they meet it is to conduct a DIA, regardless of what the law says.
Prime Minister Cameron claimed that removing the need for DIAs would reduce the administrative burden on public bodies, cut out “bureaucratic nonsense” and invigorate the economy. He explained that, instead, the favoured approach would be for equality impact to be considered as part of policy making rather than as an additional “tick-box exercise”. According to the Prime Minister, as long as the issues have been considered then the requirement for a DIA would be removed.
A subsequent Government letter to all leaders and chief executives of local authorities in England informed them that DIAs were not a legal requirement under the Equality Act 2010 and could be resource intensive and time consuming, taking staff away from planning and delivering public services.
However the letter also warned that public service providers should use their judgement to pay due regard to equality in line with their Public Sector Equality Duty and should ensure that a proportionate, timely approach is taken to equality assessment at the outset of the policy making process, with an audit trail kept to ensure that “due regard” has been paid to these issues.
The instruction was clear in its advice that whilst local authorities no longer had to follow the DIA route, the end requirement to show compliance was still in place. Some may have welcomed what they saw as the removal of bureaucratic clutter but the devil was in the detail.
It remained incumbent on public bodies, public services providers, local authorities and others to demonstrate that they had shown “due regard” to equality considerations. This means being able to show clearly at what stage the duty was considered, what considerations were made, how the assessment was undertaken and conclusions reached to establish full compliance with the duty.
Many public bodies continue to take the view that the best way to ensure and demonstrate that they have complied with their duties is to conduct a DIA. The procedure highlights the elimination of discrimination, harassment and victimisation and other conduct prohibited under the Equality Act.
It also shows the advancement of equality of opportunity and the fostering of good relations between persons sharing a relevant protected characteristic and those who do not, for example by tackling prejudice and promoting understanding. It is recognised by the courts and the Equality and Human Rights Commission as evidence that the effects of a particular policy decision have been analysed.
In defining “due regard”, the courts are assisted by the Brown principles, established by the 2008 case of a disabled woman who claimed that the Government was failing to comply with its duties under the old Disability Discrimination Act by pursing a post office closure programme.
Mrs Brown was unsuccessful with her claim, but the court set out a number of principles which emphasise that the duty of “due regard” must be applied throughout the planning and implementation of a policy. It cannot be delegated to a third party, it is ongoing and its place in a policy should be recorded adequately. A DIA covers all of these requirements.
Network Rail still uses DIAs when making alterations to stations, installing or updating footbridges and other facilities. They also deliver training to relevant people such as project managers who need to give such improvements due thought.
As part of their consultation they will talk to local access groups and to their own in-house access panel, the Built Environment Accessibility Panel, along with a number of others. They do this because of their PSED. They recognise that in spite of the changes announced in 2012, it is still a very good way of getting them where they need to be. It is not a tick-box exercise. It has to be carried out with due diligence.
If you want to know more, or you have a question or concern, please contact us at info@aboutaccess.co.uk
