Academies and the public sector equality duty

The introduction of the "public sector equality duty" has sent a clear message to schools regarding the importance of incorporating a proper consultation into the academy conversion process. Allison Cook considers the consultation process in light of the recently implemented duty, which has arisen from section 149 of the Equality Act 2010.

Academies are defined by the Department for Education as "publicly funded independent schools that provide a first-class education" to their pupils. Notwithstanding the reasons for the introduction of Academies, they are now recognised as the flagship of current education policy and the conversion process is open to any well performing state school. At the start of August 2011 there were a total of 1070 academies open in England and Wales, with a further 665 having applied to convert.

Whilst the Academy model has been widely feted, not all parents and staff members have been happy with their school's decision to convert and some are looking for ways to resist prospective changes.

The importance of the consultation and decision making process

When a school converts to an academy, its entire constitution changes and an 'academy trust' is created. Academy trusts are both companies and exempt charities. Once it is established, the trust becomes the employer of all the staff working for the academy. It also becomes responsible for contracts, and controls its own funds. The trust renders the school independent from the local authority. These changes are far from merely procedural, and can be a source of concern to parents and staff.

Before making the final decision to convert to an academy, a school must undertake a thorough consultation process. This process must involve in-depth discussions with both parents and staff, and schools must take great care to meet all their consultation obligations. There is increasing concern and resistance to schools'proposals to convert to an academy and this is largely due to the fact that once a school has converted to an academy the employee's employer changes from the local authority to the "company" incorporated for this purpose.

The impact of the "public sector equality duty" on schools

The new public sector equality duty requires governing bodies to have due regard, in the exercise of their functions, to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
• advance equality of opportunity between those sharing protected characteristics; and
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Since April 2011, when this duty came into force, it has been identified by individuals who disagree with the academy conversion process as an effective means of mounting challenges against school governing bodies. Governing bodies who do not undertake a full and proper consultation process risk failing to be able to demonstrate that they have had proper regard for this important duty. The consequence of such a failure could ultimately be the quashing of a decision to convert to academy status.

The value of carrying out an Equality Impact Assessment (EIA)

During the consultation process the school's governing body should be able to demonstrate that it has actively considered its public sector equality duty. Some governing bodies carry out formal EIAs as part of this process. Although an EIA alone will not demonstrate that the public sector equality duty has been met, they do help schools demonstrate that their equality duties have been considered. An EIA also obliges governing bodies to look for opportunities to promote equality and minimise any negative impacts that the academy conversion process might have on equality.

Further information regarding EIAs can be downloaded from the Government Equalities Office website (www.homeoffice.gov.uk/equalities) or from the Equality and Human Rights Commission (www.equalityhumanrights.com).

Allison Cook is an associate at Veale Wasbrough Vizards. She can be contacted on 0117 314 5466 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..