Complying with the public sector equality duty

Equality 146x219Anna Sweeney provides a reminder of authorities’ obligations under the public sector equality duty and sets out some practical considerations to assist with compliance.

As many readers will be aware, the Public Sector Equality Duty (the Duty) contained within Section 149 of the Equality Act 2010 (the Act) has been in force for almost a year now, since 5 April 2011. Yet complying with the rigours of the Duty in such a way as to guarantee that challenges will not be made and claims not be brought (or at the very least can be easily defended) remains a matter of concern and confusion, especially in the ongoing climate of cuts to funding and services.

For those bodies affected by the Duty, life is not going to get (much) easier any time soon. However, to help as far as possible, the aim of this note is to act as a reminder of the requirements under the Duty, to highlight the factors that must be taken into account in order to maximise the likelihood of compliance and to give you our top tips.

Requirements of the Duty

The Duty is split into two constituent elements: the General Duty (contained at Section 149 of the Act) and the Specific Duties (the purposes of which are to "enable the better performance" [1] of the General Duty).

The General Duty requires public authorities (for example, local authorities, schools, government departments, the police, fire brigades etc.) to have a due regard, in the exercise of their functions, to the need to:

  • eliminate conduct prohibited under the Act (such as discrimination)
  • advance equality of opportunity between people who share a relevant protected characteristic (i.e. all protected characteristics recognised under the Act except marriage and civil partnership) and those who do not
  • foster good relations between people who share a relevant protected characteristic and those who do not.

“In the exercise of their functions” is a deliberately wide term, meaning that the General Duty applies to a large proportion of the public authority’s activities: policy development; budgeting; property management; human resources management; procurement etc. It is therefore not something to be taken lightly. Nor should institutions, which would not instinctively consider themselves 'public', ignore these obligations. Section 149(2) specifically applies the General Duty to those non-public authorities who exercise public functions (for example, a private school, exercising functions that would normally be dealt with by the local education authority).

Given the variety of organisations that are affected, and the variety of contexts when they will be affected, the Act allows for the imposition of the Specific Duties, as part of a 'carrot and stick' approach to assisting and ensuring compliance. Following three consultations on the format of the Specific Duties (these having varied radically during those consultations), they have now come into force and are set out in the Equality Act 2010 (Specific Duties) Regulations 2011 (the Regulations). An example of the Coalition’s drive for light-touch regulation, the Specific Duties require the bodies which are covered (extensively, but not exclusively, the same as covered by the General Duty) to publish information annually demonstrating their compliance with the General Duty and, at least once every four years, to prepare and publish one or more specific and measurable equality objectives.

The Specific Duties allow public authorities a certain degree of latitude. There is no set information a body should publish (save that those authorities with 150 or more employees should include information about their workforces, and that all authorities should publish information on how their policies and practices affect people who share a relevant protected characteristic); nor is there any formula for saying what and how many equality objectives any given body should set itself. In both cases, this will be a question of proportionality. It is not feasible to expect a countryside primary school to set itself as many objectives as the Department for Education, or to publish comparable amounts of information. Nevertheless, we would remind our public sector clients that they do have to comply with these Specific Duties, that they have to provide sufficient information to show that they have complied with the General Duty and that they must comply within the timetables. In that regard, the first equality objectives must have been published by Friday 6 April 2012, the same day on which schools were obliged to publish their first equality information (other organisations having had until 31 January 2012 to comply).

Complying with the Duty

It is worthwhile remembering that the General Duty, as a concept, is not new. Comparable (although not identical) equality duties were found in the Sex, Race and Disability Discrimination Acts [2] which the Act has now replaced. Therefore, whilst the outcome of any challenge to a public authority’s compliance with the General Duty will turn on the facts, there is a not-inconsiderable body of case law, providing helpful guidance on the key principles to take into account when exercising public functions. This guidance will remain useful as the body of case law on the new General Duty develops.

The seven key principles are:

  1. Whoever exercises a public authority’s functions needs to consciously consider the General Duty. All three aims must be taken into account. This will apply not only to people in positions of authority with responsibility for overall direction (such as a school’s board of governors or a town council), but also to those exercising human resource functions (such as when amending equal opportunities policies for their staff) and indeed to front-line staff, delivering services to users.
  2. Complying with the General Duty is not simply a question of completing a form. To discharge it properly requires genuine consideration, feeding in to and having an impact upon the ultimate decision, policy or programme.
  3. Considering the General Duty after making the decision, and thereby seeing if the two are compatible, will not work (as the Education Secretary recently found out to his cost when deciding to scrap the Building Schools for the Future programme [3]). It is of course key to consider it when any review of a policy or a programme is made, but it is essential that you pay the necessary due regard when formulating policy (i.e. before any firm decisions are made) and then subsequently on implementation.
  4. It is not enough to simply consider the aims of the General Duty once, at the outset of a policy. A decision-maker should remember to return to and review decisions on a regular basis. The demographic of the service users affected by the decision may change over time, calling into question the on-going merit of that decision. Moreover, the practical impact of a decision on equality and the means of reducing any adverse impacts may often only become clearer some time after the event. A mechanism for reviewing decisions is therefore vital.
  5. The decision-maker must have sufficient information to meet the General Duty. Where he or she does not have sufficient information, it must be found before the decision is taken (for example, by engaging and consulting with existing and potential service users and other interest groups).
  6. The Duty is non-delegable. Even when third parties exercise functions on behalf of a public authority, responsibility for the decisions made and the policies implemented in that authority’s name will remain with it. It is therefore vital to ensure that contractors are properly vetted and informed of the consideration they need to give.
  7. Keep records. Not only will this help with the annual discharge of the Specific Duties, more immediately, it will be considerably easier to defend a challenge to a decision if detailed records have been kept. A public authority can abide by all the other key principles detailed in this note, but this will count for very little if it is fundamentally unable to prove it.

We understand the conflict which public authorities will see between complying with the requirements of the Duty against the backdrop of making further cuts and savings (often quickly and with limited information). Whilst there may be an inclination to say that discharging the Duty would have to take a back seat in the current economic climate, the counter-argument is that it is precisely for times such as these that the Duty is in place, in order to ensure that the promotion of equality and the eradication of discriminatory behavior do not fall victim to financial constraints. The Courts have already shown themselves willing to adopt this approach themselves [4]. It is therefore vital that public authorities comply with the Duty as far as they are able, taking into account the seven key principles detailed above.

Top Tips

These are our Compliance Priorities:

  • identify policies and decisions to which the Duty will apply and prioritise your efforts accordingly;
  • make sure you have sufficient information in order to exercise your functions in accordance with the General Duty (with an eye to the Specific Duty on information);
  • establish the appropriate methodology – an Equality Impact Assessment is a helpful, but not obligatory, tool;
  • make sure you engage with a wide variety of groups, as early as possible in the developmental phase;
  • give detailed and open-minded consideration to the information gathered, the impacts identified and any proportionate means of mitigating those impacts;
  • consider the Duty at every turn, both before, during and after taking the decision or implementing the policy;
  • keep records!

Anna Sweeney is a professional support lawyer at Walker Morris. She regularly contributes articles and updates to reach.... ®, the free Walker Morris knowledge database and alerter service.

[1] Section 153


[2] Section 76A Sex Discrimination Act 1975; Section 71 Race Relations Act 1976; Section 49A disability Discrimination Act 1995


[3] Luton Borough Council and others v Secretary of State for Education [2011] EWHC 217 (Admin)


[4] See R(Rahman) v Birmingham City Council [2011] EWHC 944 (Admin)