Do your duty

June 23, 2011

The public sector equality duty came into force on 5 April this year. Helen Burgess explains what is involved for the organisations affected.

To whom does the public sector equality duty apply?

The public sector equality duty (the Duty) applies to public authorities listed in schedule 19 of the Equality Act 2010 (the Act) and those bodies carrying out public functions, including private companies and charities (but only when they are carrying out their public functions). A public function is a function of a public nature for the purposes of the Human Rights Act 1998.

The list of public authorities in the Act includes government departments, NHS bodies, local government, the police, transport and educational bodies.

Public authorities and those carrying out public functions are referred to collectively in this note as “public bodies”.

Many, but not all, public bodies who are subject to the Duty will also have to comply with further requirements known as the “specific duties”.

What is the public sector equality duty?

The Duty is contained in section 149 of the Act and came into force on 5 April 2011. The Duty replaced the old public sector race, disability and gender equality duties with one consolidated and extended duty.

The Duty requires public bodies to have “due regard” to the following three aims:

To eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act.
To advance equality of opportunity between people who share a relevant protected characteristic and those who don’t.
To foster good relations between people who share a relevant protected characteristic and those who don’t (which involves tackling prejudice and promoting understanding).

What are the relevant protected characteristics?

The relevant protected characteristics are:

Age
Disability
Gender reassignment
Pregnancy and maternity
Race
Religion
Sex
Sexual orientation

Note that in respect of the first aim only i.e. reducing discrimination, the protected characteristic of marriage and civil partnership is also relevant.

What does having “due regard” involve?

This means consciously thinking about the three aims of the Duty as part of any decision making process and before reaching a decision.

What does having “due regard” to advancing equality of opportunity involve?

In particular this will involve:

Removing or reducing disadvantages suffered by people who share a protected characteristic and which are connected to that characteristic.
Taking steps to meet the different needs of people who share a particular characteristic which are different from the needs of those without the characteristic.
Encouraging people who share a particular characteristic to participate in public life or other activity where participation by such people is disproportionately low.

When does the public sector equality duty apply?

The Duty applies when a relevant public authority is exercising its functions as a public authority and as an employer.

The Duty is likely to be relevant for public authorities carrying out their day-to-day work, including when they are:

Acting as an employer
Developing policies
Setting a budget
Making public appointments
Managing premises
Designing and delivering services
Commissioning and procuring goods and services

The Duty only applies to other bodies carrying out public functions in relation to those functions so not, for example, in relation to their private law relationship with their own employees.

What should public bodies do to ensure they are complying with the public sector equality duty?

The Act is not prescriptive about exactly what public bodies need to do to comply with the Duty. There are however some firmer requirements where the specific duties apply (see below).

Public bodies will need to consciously think about the three aims of the Duty when carrying out their day-to-day work. Therefore they should consider how the function they are exercising is affected by discrimination, equality of opportunity and good relations issues and the extent of any disadvantage which needs to be addressed.

To comply with the Duty, public bodies will need to assess the effect of their proposed decisions on different groups, will need to have sufficient data available to them to do so and will have to consider proportionate ways of mitigating any detrimental impact.

Case law has enunciated the following principles of which public bodies should be aware:

Those who are exercising the public body’s functions must be aware of the Duty and consciously have it in their minds – R (Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin)
The Duty cannot be avoided by being delegated: where a third party is exercising a function on behalf of a public body they must also comply with it.
The Duty must be complied with when policy options are being developed and in making the final decision. The Duty can not be satisfied after the decision has been made.
The Duty is not just a box-ticking exercise: it must be exercised “in substance, with rigour and with an open mind in such a way as influences the final decision” – see page 5, GEO Quick Start Guide.
The decision maker must have sufficient information available to them to be able to give proper regard to the Duty and should request further information before reaching a decision if needed.
The Duty is a continuing duty and public bodies must have due regard to the aims when implementing and reviewing a policy not just when it is being developed and decided.

It may help public bodies demonstrate compliance if they:

Keep a written record of the equality considerations they have taken into account.
Ensure their decision-making includes a consideration of the actions that would help to avoid or mitigate any negative impacts on particular protected groups.
Make sure their decision is based on relevant evidence (as the Duty includes some new protected characteristics it may be necessary for public bodies to gather additional data to cover the gaps in its existing information).
Have made the decision-making process as transparent as possible, for example, by engaging with potentially affected groups.

Public bodies will only be required to act in a proportionate way for example, by giving greater consideration to decisions which may have a potentially greater effect on equality etc. A public body’s size and resources can be taken into account when considering how those effects might be mitigated.

Public authorities will not have to examine equality issues where these are not relevant to the matter in hand (but it would be prudent to record how they reached this view).

What records need to be kept?

The Act does not lay down any record keeping requirements but public bodies should certainly document, as comprehensively as possible, their considerations of the Duty so that they can demonstrate compliance if their decision is challenged in the future. This will usually involve a written, dated and accurate record of how decisions have been made.

What are the specific duties and to whom will they apply?

The specific duties will be set out in regulations which have not yet come into force. Draft regulations were originally published in January 2011 and then amended and re-issued in March 2011 for a further period of consultation which ended on 21 April 2011. It is expected that the specific duties will come into force in July 2011.

The specific duties will apply to all public authorities listed in Schedule 1 of the draft regulations. This covers most (but not all) of the public authorities listed in Schedule 19 of the Act.

The specific duties are intended to help relevant public authorities to comply with the Duty by improving focus and transparency.

The draft regulations containing the specific duties require public authorities to:

Publish equality objective(s) (which must be specific and measurable) by no later than 6 April 2012 and then at least every four years.
Publish information to show how they have complied with the Duty by no later than 31 December 2011 and then every year thereafter. This must include information relating to people who share protected characteristics and are affected by its policies. Where the organisation has 150 or more employees it must also include information about how its employees are affected by its policies.

Each public authority must come up with one or more objectives which it thinks it should achieve to meet any of the three aims of the Duty set out in section 149 of the Act.

To demonstrate compliance with the Duty it will not be enough for a relevant public authority to show that it simply complied with the specific duties, it is likely to be necessary to do more to show how it met the three aims of the Duty.

Do we still need to conduct an Equality Impact Assessment?

There is no legal requirement under the Act* (and was not previously) to conduct an Equality Impact Assessment (EIA), although in the past many public authorities have produced these documents.

The Government has said it wants to encourage public bodies to move away from arduous and ineffective bureaucratic processes to focusing on outcomes, and does not appear to regard EIAs as helpful. However, the Equality and Human Rights Commission suggests it would still be good practice to prepare a document similar to an EIA (although the nomenclature has changed and it now refers to an “equality analysis”).

Does the public sector equality duty allow public bodies to positively discriminate?

No. Positive discrimination remains unlawful under European law and the Act.

It is not necessary to treat everyone exactly the same: the Act recognises that it may be necessary to treat some people more favourably than others to meet their needs. For example, it allows some positive action and more favourable treatment of disabled people where required by means of reasonable adjustments.

How is the public sector equality duty enforced?

The Duty can be enforced through the Courts by judicial review of a decision by a public body brought by an interested individual or group.

In addition, the Equality and Human Rights Commission (EHRC) has various powers which enable it to assess compliance with the Duty and take action, including issuing compliance notices where it considers there has been a failure to comply. Ultimately, the EHRC can apply for a court order to enforce the Duty.

Where can public bodies get further information and advice?

List of public authorities to whom the Duty applies

Government Equality Office public sector equality duty page

GEO: Quick start guide

GEO policy review paper on the specific duties (March 2011) – includes the draft regulations

Equality and Human Rights Commission

EHRC guidance: This guidance was issued in January 2011 and was based on the draft specific duties as they were then published. The regulations were subsequently revised, so this guidance is no longer fully up-to-date. However, it will still be of use in setting out the requirements of the general equality duty and the steps that can be taken to meet that. The EHRC have said it will be publishing revised guidance to reflect the new draft specific duties as soon as possible.

The EHRC is expected to produce a statutory Code of Practice on the Equality Duty later in 2011.

Helen Burgess is a senior associate at Shoosmiths. She can be contacted on 03700 86 5028 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

* Note the position is different for Welsh bodies