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Public sector equality duty

This content applies to England & Wales

Public authorities in the exercise of their functions must have 'due regard' to the need to promote equality.

A single public sector equality duty under the Equality Act 2010 replaced the previous separate duties under the Race Relations Act 1976, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975.

The new public sector equality duty consists of:

  • a general duty, and
  • specific duties.

The general duty

From 5 April 2011,[1] a public authority in the exercise of its functions must have due regard to the need to:[2]

  • eliminate any form of unlawful discrimination (including direct or indirect discrimination, harassment, victimisation and any other conduct prohibited under the Act)
  • advance equality of opportunity between people who share a relevant characteristic and people who do not, and
  • foster good relations between people who share a protected characteristic and people who do not.

Due regard

Due regard means such regard as it is appropriate in all the circumstances.[3] The three aims of the general equality duty must be considered and reflected upon during:[4]

  • the decision-making process
  • the design of policies (including internal policies), and
  • the delivery of services.

The public authority's policies and practices must also to be kept under review.[5]

The duty to have due regard is not a duty to achieve a particular result.[6]

Advance equality

This is defined as the need to:[7]

  • remove or minimise disadvantages suffered by people who share a relevant protected characteristic
  • meet the needs of people who share a relevant protected characteristic where these are different from the needs of people who do not share it
  • encourage people who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

Foster good relations

This is defined as the need to:[8]

  • tackle prejudice, and
  • promote understanding.

Specific duties

The specific duties are designed to help public authorities demonstrate how they are meeting their general duty by publishing:[9]

  • equality objectives, and
  • information on equality.

The Secretary of State in England and the Welsh Ministers in Wales have the power to impose different specific duties on relevant authorities (ie those specified in Parts 1 and 2 of Schedule 19 to the Equality Act 2010) by way of separate regulations.[10]

Equality objectives

Public authorities must prepare and publish (in a manner that is reasonably accessible to the public) one or more specific and measurable objectives they think they should achieve in pursuance of one or more aims of the general equality duty.[11]

Information

Public authorities are required to publish information (in a manner that is reasonably accessible to the public) to demonstrate their compliance with the general public sector equality duty, in particular information relating to people who share a relevant protected characteristic who are:

  • their employees
  • other people affected by their policies and practices.

The public sector equality duty does not specify how public authorities should analyse the effect of their policies and practices on equality. It is up to each organisation to choose the most effective approach for them.

Equality scheme and equality impact assessment

The requirement for public authorities to develop or publish an equality scheme is abolished, however public authorities may choose to continue doing so as a way to improve transparency and communication about their equality aims.

With regard to the duty to prepare an equality impact assessment, it should be noted that the new regulations refer to 'equality analysis' rather than 'equality impact assessment'. The change in terminology is intended to focus more attention on the quality of the analysis and how it is used in decision-making, and less on the production of a document, which some may have taken to be an end in itself.

Further information on the specific public sector equality duties and the regulations made under the Equality Act 2010 are available from the Government Equalities Office and the Equality and Human Rights Commission (EHRC).

Public authorities

The general duty applies to all public authorities listed in Schedule 19 to the Equality Act 2010,[12] and to other organisations when they are carrying out public functions. There are limited exceptions relating to certain functions, such as immigration (in relation to race, religion, age and the advancement of equality) and judicial functions.[13] The Welsh Ministers may amend the list of relevant Welsh authorities (as specified in Part 2 of Schedule 19 to the Equality Act 2010) by way of order.[14] The specific duties apply to the public authorities listed in regulations.

Local authorities are subject to both the general duty and the specific duties.

Authorities carrying out public functions

The general equality duty also applies to organisations who exercise public functions. This will include private registered providers of social housing (PRPSHs) (registered social landlords in Wales), which are carrying out public functions on behalf of a public authority.[15]

Public functions

The Equality Act 2010 defines a public function as a function of a public nature for the purposes of the Human Rights Act 1998.[16]

Protected characteristics

The public sector equality duty applies to the protected characteristics of:[17]

  • age
  • disability
  • gender reassignment
  • pregnancy and maternity
  • race (this includes colour, nationality and ethnic or national origins)
  • religion or belief
  • sex
  • sexual orientation.

Complying with the duty

The legislation does not set out the steps a public authority should take to meet the requirements of the general equality duty, but states that complying with the duty might mean treating some people more favourably than others, where doing so is allowed by the Act.

The steps prescribed by the specific duties are limited to preparing and publishing equality objectives and information.

Principles from case law developed under the previous equality duties will continue to apply, and guidance has been issued.[18]

The courts[19] have approved the guidance set out in Brown:[20]

  • the authority must correctly understand the duty, and its decision-makers must be fully aware of the implications of the duty when making decisions about their policies and practices

  • the 'due regard' duty must be fulfilled before and at the time that a particular policy that will or might affect people with a protected characteristic is being considered by the public authority in question. It involves a conscious approach and state of mind; it is not enough to justify a decision after it has been made[21]

  • the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority; it is not a question of 'ticking boxes'

  • whilst it is good practice for the decision maker to specifically refer to the public sector equality duty, there is no requirement to do so: what matters is the substance of the decision making process[22]

  • the duty is non-delegable and is a continuing one

  • proper record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake their equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed.

In addition, a public authority must ensure that:

  • regard is given to the need to advance equality when a policy is implemented and reviewed. A local authority's decision to reduce its budget for adult social care by restricting the provision of support for disabled people to those whose needs were assessed to be critical was unlawful when the local authority failed to assess the practical impact on disabled people whose needs were substantial, but was lawful when it had carried out detailed and comprehensive analysis of the probable effects[23]

  • where large numbers of vulnerable people are affected, many of whom fall within one or more of the protected groups, the 'due regard' duty is very high[24]

  • the public sector equality duty applies both to the formulation of policies and to the carrying out of any function of a public authority, including for example:

    • the decision to take or continue possession proceedings[25]
    • when making inquiries into a homeless application[26]
    • the decision to revoke the site licence of a long-established soup kitchen.[27]

The Supreme Court held that the weight and extent of the public sector equality duty are highly fact-sensitive and depend from the circumstances of each case. The duty to have due regard to the need to eliminate unlawful discrimination and advance equality of opportunities under section 149 of the Equality Act 2010 applies to all public functions exercised by a local authority under the homelessness legislation and complements the authority's duties under the Housing Act 1996. At each stage of the decision-making process, the authority must consider the equality duty and 'sharply focus' on:[28]

  • whether the applicant has a relevant protected characteristic
  • its extent
  • its likely effect, when taken together with any other features, on the applicant if and when homeless, and
  • whether the applicant is vulnerable as a result.

Reviewing officers are required to do more that just assert they have taken into consideration the public sector equality duty; in order not to be found in breach of the duty they need to demonstrate sufficient recognition of all the matters above in their decision letters.[29]

Guidance

In EHRC public sector equality duty guidance, the EHRC suggests an approach to compliance which covers:

  • assessing relevance
  • collecting and publishing equality information
  • engagement
  • equality analysis
  • equality objectives
  • commissioning and procurement, and
  • business planning and reporting.

The public sector equality duty requires equality considerations to be reflected in the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review. Local authorities will need to consider the impact of their decisions on people with the  protected characteristics of age, race, disability, sex, pregnancy and maternity, sexual orientation, religion or belief or gender reassignment.

Positive discrimination

The Equality Act 2010 makes it clear that complying with the general duty may involve treating some people better than others.[30] For example, it may entail making use of an exception or the positive action provisions in order to provide a service in a way which is appropriate for a particular group (eg providing funding for a women's refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women and meeting their needs).

It also explicitly recognises that disabled people's needs are often different from those of non disabled people.[31] This might mean making reasonable provisions and adjustment for them or treating them better than other people. See also the page on Disability discrimination for information about reasonable adjustments to buildings under Part 4 of the 2010 Act.

Enforcement

The EHRC is responsible for assessing compliance with the public sector equality duty, both general and specific. It has powers to issue compliance notices to public authorities that have failed to comply and can apply to the courts for an order requiring compliance.

The EHRC has issued a statutory Code of Practice and related technical guidance which can be used in evidence in legal proceedings brought under the 2010 Act and must be taken into account by courts and tribunals when it appears to be relevant to any questions arising in proceedings.

A failure to comply with the general duty can also be enforced by judicial review. This can be done by the EHRC or any individual or group of people with an interest.[32]

[1] s.2 Equality Act 2010 (Commencement No. 6) Order 2011 SI 2011/1066.

[2] s.149(1) Equality Act 2010.

[3] R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); R (on the application of Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141.

[4] Pieretti v Enfield LBC [2010] EWCA Civ 1104; Barnsley MBC v Norton [2011] EWCA Civ 834; Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345.

[5] Ch.3, Essential guide to the public sector equality duty, ECHR, 2011.

[6] R (on the application of MA and others) v (1) Secretary of State for Work and Pensions (2) Birmingham City Council (Interested Party) (3) The Equality and Human Rights Commission (Intervener) (4) Shelter (Intervener) [2013] EWHC 2213 (Admin).

[7] s.149(3) Equality Act 2010.

[8] s.149(5) Equality Act 2010.

[9] see Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 SI 2017/253; before 31 March 2017, Equality Act 2010 (Specific Duties) Regulations 2011 SI 2011/2260.

[10] s.153(1) and (2) Equality Act 2010.

[11] see Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 SI 2017/253; before 31 March 2017, Equality Act 2010 (Specific Duties) Regulations 2011 SI 2011/2260.

[12] as amended by Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 SI 2011/1060, and by Equality Act 2010 (Specification of Relevant Welsh Authorities) Order 2011 SI 2011/1063 (W.154).

[13] Sch.18 to Equality Act 2010.

[14] s.151(2) Equality Act 2010.

[15] R (on the application of Weaver) v London & Quadrant Housing Trust and Equality and Human Rights Commissioner (Intervenor) [2009] EWCA Civ 587; Poplar HARCA v Donoghue [2001] EWCA Civ 595.

[16] s.150(5) Equality Act 2010.

[17] s.149(7) Equality Act 2010.

[18] see Ch.5, Essential guide to the public sector equality duty, EHRC, January 2011.

[19] R (on the application of (1) Rajput (2) Shamji) v Waltham Forest LBC: R (on the application of Tiller) v East Sussex CC [2011] EWCA Civ 1577.

[20] R (on the application of Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin).

[21] Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; R (on the application of (1) Boyejo (2) Towler (3) Rush (4) Saunders (5) Kemp) v Barnet LBC : R (on the application of Smith) v Portsmouth CC [2009] EWHC 3261 (Admin); Kaur and Shah v Ealing LBC [2008] EWHC 2062 (Admin); R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139.

[22] R (on the application of McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33; Hackney LBC v Haque [2017] EWCA Civ 4.

[23] R (on the application of W) v Birmingham CC: R (on the application of (1) M (2) G (3) H) v Birmingham CC [2011] EWHC 1147 (Admin); (1) JG (2) MB v Lancashire CC [2011] EWHC 2295 (Admin); R (on the application of (1) JM (2) NT v Isle of Wight Council [2011] EWHC 2911 (Admin).

[24] Harjula v London Councils [2011] EWHC 448 (Admin).

[25] Barnsley MBC v Norton [2011] EWCA Civ 834.

[26] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30; Hackney LBC v Haque [2017] EWCA Civ 4; Pieretti v Enfield LBC [2010] EWCA Civ 1104.

[27] Blake and others v Waltham Forest LBC [2014] EWHC 1027 (Admin).

[28] Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC [2015] UKSC 30.

[29] Hackney LBC v Haque [2017] EWCA Civ 4.

[30] s.149(6) Equality Act 2010.

[31] s.149(4) Equality Act 2010.

[32] R (on the application of Chavda) v Harrow LBC [2007] EWHC 3064 (Admin); R (on the application of JL and LL) v Islington LBC [2009] EWHC 458 (Admin); R (on the application of Meany and others) v Harlow DC [2009] EWHC 559 (Admin).

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