Nursery Management: The Equality Act 2010 - Acting to end discrimination

However much we wish our society was equal in all respects, the reality is that it is not. Inequalities are deeply embedded in most aspects of how it functions, including in the early years. To counter any discrimination resulting from these inequalities, a relatively recent harmonisation and enhancement of equalities legislation, some of which had been in place for decades, has taken place with the introduction of the Equality Act 2010.

For children, and those who work with them, to be treated equally, it is important that heads, leaders, managers, proprietors and staff take this legislation very seriously, and take the necessary steps to comply with it. This short article focuses on key requirements and principles of the Act for early years providers.

WHAT THE ACT SAYS

The Equality Act 2010 replaces all previous equalities legislation, bans unlawful discrimination and helps achieve equal opportunities in and outside the workplace. All early years settings, whether in the statutory, voluntary, independent or private sectors, including childminders, must comply with the Act. The Act harmonises the earlier legislation with some changes, and extends some provisions to take account of all the protected characteristics, which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Save for some exceptions, direct discrimination under the Act involves treating a person less favourably than another because of a protected characteristic; it also includes harassment and victimisation.

Indirect discrimination occurs when a policy or procedure is applied which adversely affects one protected group more than another and cannot be objectively justified.

The law also protects people if they are wrongly perceived as having a protected characteristic, or if they are associated with someone who has one, such as being a parent of a disabled child. It also introduces protection against discrimination arising from disability and failure to make reasonable adjustments for disabled people.

Positive action enables employers, schools and service providers to target provision to meet the needs of particular protected groups, which may be under-represented or particularly disadvantaged.

The Act introduces a single Public Sector Equality Duty (the duty). This comprises a general duty outlined in the Act and specific duties introduced by regulations. These apply to all listed 'public authorities' in respect of all their functions (with some exceptions). Local authorities, children's centres run by local authorities and maintained nursery schools are subject to the duty.

Under the Act, organisations which are not public authorities but which are carrying out public functions, as defined by the Human Rights Act 1998, will be subject to the duty. However, case law has interpreted the meaning of public functions narrowly, in which case voluntary, independent and private settings may not be carrying out a public function in their own right when delivering the free early education entitlement.

One local authority that we know about, however, has stated that in its view the free early education entitlement is a public function. Whatever the interpretation, it would certainly be good practice for all settings to ensure they follow the principles of the duty. It may in any case be part of their contractual obligations if carrying out this work on behalf of a local authority or other public service provider.

The general duty has three main elements. In carrying out their functions, those subject to the duty are required to have due regard to the need to:

1. eliminate discrimination and other conduct that is prohibited by the Act

2. advance equality of opportunity between people who share a protected characteristic and people who do not share it.

This involves :

• Removing or minimising disadvantages suffered by people due to their protected characteristics

• Taking steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people (Meeting different needs involves taking steps to take account of disabled people's disabilities.)

• Encouraging people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

3. Foster good relations between people who share a protected characteristic and people who do not share it. This involves countering prejudice and promoting understanding between people from different groups.

Case law on the previous equality duties has established certain principles that are relevant to the new duty. Relevant and proportionate consideration should be given to the aims of the duty. Whenever significant decisions are being made or policies developed and implemented, thought must be given to the equality implications before and at the time policy is developed and decisions taken.

The Act also introduces specific duties on certain listed public authorities, intended to enable them to comply with the duty more effectively.

Listed public authorities must publish information showing how they have complied with their duty. Most public authorities had to do this by 31 January 2012; certain educational bodies, including maintained schools and nurseries, by April 2012; and then on a yearly basis.

Listed public authorities must also publish one or more objectives designed to meet one or more of the aims of the duty; this has to be done by 6 April 2012, and then repeated on at least a four-yearly basis.

In order to be able to meet the specific duties and to have due regard to the aims of the general duty, public authorities must understand the impact of their policies and practices on people with protected characteristics. Collecting and analysing equality information is an important way for public authorities to develop this.

HOW SETTINGS CAN COMPLY WITH THE ACT

Many settings will already be complying with parts of the Act in developing their practice over the years to take account of:

• the Early Years Foundation Stage

• previous anti-discriminatory legislation

• OFSTED inspection requirements

• the increasing availability of supportive resources, training and advice, both nationally and locally.

Every setting will have its own particular circumstances. Depending on these, each will need to consider how best they can take action to comply with the Act. Those which are not subject to the duty should consider taking steps that are recommended for compliance with the duty as this will assist them in complying with the anti-discrimination provisions of the Act. The Equality and Human Rights Commission has published codes of practice and guidance on the new Act and will be publishing a code on the duty later this year.

The following are points for consideration in complying with the duty, in having due regard to:

1. Eliminating discrimination and other conduct prohibited by the Act.

Settings need to understand the impact of their policies and practices on people with protected characteristics. For example, the collection, analysis and evaluation of equality information on admissions and employment (at all levels) should assist in identifying any discriminatory practices. This will help to make informed choices and decisions. The information will also be required by the local authority in monitoring its own duty.

2. Advancing equality of opportunity between people who share a protected characteristic and people who do not share it.

The draft revised EYFS Statutory Framework 'provides equality of opportunity and anti-discriminatory practice, ensuring that every child is included and supported'. It also requires settings to 'have and implement a written policy to promote equality of opportunity for children in their care' and lists what it must include. It would be good practice and compatible with the Act, including the duty, to develop:

• an equalities policy based on the Act, covering all the protected characteristics, and its implications for the setting1. Taking time to develop this, and including all the staff and, where appropriate, parents in the process, will help address any potential tensions and differences of opinion and understanding. In view of the considerable evidence of socio-economic inequalities, settings may also wish to include socio-economic background in their policy. Even though this is beyond the scope of the Act, it overlaps with the needs of disadvantaged groups.

• a short checklist for use on an ongoing basis of what questions might need to be asked, and information assessed, whenever policy or practice decisions are made about the setting.

Treating people equally does not necessarily mean treating them all the same. The evaluation of information in (1) above, using the results of the Foundation Stage Profile and observing children, may pinpoint differences where action needs to be taken to minimise disadvantages suffered by people due to their protected characteristics. For example, taking steps to:

• encourage promotion and access to training of staff

• boost children's self-esteem so they can learn more readily

• initiate a project to tackle the underachievement of boys in writing2

• place resources so all have equal access to them

• making reasonable adjustments for disabled children.

3. Fostering good relations across all characteristics - between people who share a protected characteristic and people who do not share it. The need to counter prejudice and promote understanding is fundamental to breaking down the barriers they create. For example, settings could:

• address issues of stereotypes, assumptions and judgments

• organise outings to cultural/traditional/specific places to share similar and different experiences

• use Persona Dolls to develop empathy in children and attitudes that are free of prejudice3

• use points from 2008/revised EYFS to raise issues, eg. 'be alert to injustices'

•  involve parents in writing the equalities policy.

The way children are treated in their critical earliest years affects their future lives. The Equality Act 2010 provides a basis for ensuring that each one can maximise their potential free from the constraints of discrimination and prejudice and their damaging consequences. However, it needs those responsible for delivering education and care in the early years to ensure the Act is implemented effectively so that these aims can be achieved.

Jane Lane is an advocate worker for racial equality in the early years. Brenda Parkes is a discrimination lawyer.

RESOURCES

• Further information on the Act can be obtained directly from the Equality and Human Rights Commission at http://www.equalityhuman rights.com/advice-and-guidance/new-equality-act-guidance and INSTED www.insted.co.uk

• (2) Cigman, Julie (2010) 'Follow their lead', a boys' writing project. Nursery World 21 October 2010

• Early Years Trainers Anti Racist Network (2001) 'A Policy for Excellence'

• Lane, Jane (2010) 'Institutional discrimination in the early years' - for discussion and practical points similar to general duty under the Act. Available from jane@janelane.plus.com

• Lane, J and Ouseley, H (2010) 'Review of the Early Years Foundation Stage' - for significant equality (mainly racial) points in EYFS (2008). Available from jane@janelane.plus.com

• (3) Persona Doll Training, www.persona-doll-training.org

• (1) Wilson, R. 'Singing from the same song sheet - policy consensus at a children's centre'. Race Equality Teaching, Spring 2012, vol 30 no 2.