Legal guidance on Race Equality Schemes

There is no specific guidance from the Commission for Racial Equality (CRE) for newly formed or merged organisations, but employers should take a fairly robust view on this.

In considering a Race Equality Scheme (RES) for newly formed or merged organisations, we recommend that those responsible for maintaining the RES for the organisation take the following steps:

1. Can the existing RES (or one of the existing RES) be used with appropriate (minimal) changes to take account of the new organisation, for example, the new name? In short, and balancing risk, "yes". The legal obligation is to review the RES every three years. This means that most organisations who do not start with a new RES (see point three below for further detail) will have to review their RES by May 2008 anyway. The general duty to promote race equality does suggest a more fundamental approach to a RES, however, at present new organisations need to strike a balance between that and the resources available. We do recommend that as best practice all organisations publish a commitment to impact assess any existing policies and functions, alongside undertaking an assessment for any new policies and functions. Visit here for further information on impact assessments.
2. If an existing RES would not be appropriate because, for example, more than minimal changes will need to be made to cover all the functions of the new organisation, would the organisation be able to effectively combine an existing RES from predecessor organisations so that a new RES can still be put together with relatively little effort? If the answer is yes then this approach can be taken. For example sections about the same subject or particular departments or function can be put together under one heading, such as surgery or orthopaedics to produce one document.
3. If it is simply not possible to use existing RES from predecessor organisations, the trust needs to consider its legal position and balance that against the practicalities. For example, if the organisation is not legally a new organisation then, it may have no legal duty to establish a new RES (although this would be the ideal). It would still have to review the existing RES in accordance with the obligation to review every three years. If the organisation is legally a new one, and either one or two above are not possible, it has to consider a more fundamental approach to a new RES. In this instance we advise that an organisation should work on and complete a new RES or at the very least make a commitment to put an RES in place by a set point in the future. Given the disability and gender equality duties it is a sensible option to set up a working party to look at producing a single equality scheme dealing with race, sex and disability. Trusts do not have to produce three separate schemes as long as the one scheme clearly shows an understanding and focus on the three different duties to comply with legislation.

We recommend that if organisations adopt option one or two they should ensure their internal equality committees review anything that is proposed and that it is made clear that the organisation will consult on a fully reviewed RES in the future. The above approach is of course not intended to replace a proper review of the RES when organisations have the time and resource to do so.

The Commission for Racial Equality (CRE) has published its assessment template that is used to identify whether employers have complied with the employment and RES duties. NHS organisations can use this to assess whether they would be at risk in the event on scrutiny by the CRE.