Public sector equality duty under the Equality Act 2010
Public authorities must have due regard to the need to promote equality but a failure to may not be fatal to the action taken by an authority.
The general public sector equality duty
A single public sector equality duty (PSED) 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.
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
foster good relations between people who share a protected characteristic and people who do not
Meaning of due regard
design of policies (including internal policies)
delivery of services
The public authority's policies and practices must also to be kept under review.
The duty to have due regard is not a duty to achieve a particular result.
Duty to advance equality
This is defined as the need to:
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
Duty to foster good relations
This is defined as the need to tackle prejudice and promote understanding .
Specific duties to publish equality information
The specific duties are designed to help public authorities demonstrate how they are meeting their general duty by publishing both their 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 (those specified in Parts 1 and 2 of Schedule 19 to the Equality Act 2010) by way of separate regulations.
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.
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, or 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
Whilst there is no requirement for public authorities to develop or publish an equality scheme, they may choose to do 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 legislation refers to 'equality analysis' rather than 'equality impact assessment'. The terminology is intended to focus attention on the quality of the analysis and how it is used in decision-making, and less on the production of a document.
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 and carrying out public functions
The general duty applies to all public authorities listed in Schedule 19 to the Equality Act 2010, 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.
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. 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.
The Equality Act 2010 defines a public function as a function of a public nature for the purposes of the Human Rights Act 1998.
Protected characteristics for the public sector equality duty
The public sector equality duty applies to the protected characteristics of:
race (this includes colour, nationality, and ethnic or national origins)
religion or belief
pregnancy and maternity
Complying with the public sector equality 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.
Guidance from case law
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.
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
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.
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
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 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:
whether the applicant has a relevant protected characteristic
its likely effect, when taken together with any other features, on the applicant if and when homeless
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.
Where there has been a failure to comply
A failure to comply with the general duty does not always prevent further action by the authority.
In the context of defending possession proceedings, the Court of Appeal has held that the correct test when considering a defence based on the landlord's non-compliance with the public sector equality duty (PSED) is whether the court is satisfied that, had the duty been fully complied with, it is highly likely the decision to seek possession would have been the same.
The Court of Appeal has ruled that, where a satisfactory PSED assessment was not made at the correct time (before the action which engaged the duty), it would not countenance quashing a decision based on a subsequent adequate assessment as a form of 'discipline' against a public authority.
In another case, the High Court has found that where a breach of PSED was immaterial, because, due to a lack of alternatives to eviction, had the duty been complied with the outcome would have been the same, the lower court was correct to grant a possession order and stay it until suitable alternative accommodation became available.
In Taylor v Slough Borough Council, the High Court held that an initial failure to comply with the PSED could be remedied at a later stage. The case concerned individual decisions in a fact specific case, and not policies of general application introduced by public officials.
In a case where a tenant appealed against a possession order being granted in favour of a social landlord following drug dealing from his flat, the court held that, although the public sector equality duty was not complied with prior to the decision to take action, the failure did not necessarily result in a successful appeal. The tenant, who was potentially a victim of 'cuckooing' (a term used where a vulnerable person is persuaded to allow others to use their accommodation for their own purposes), had not produced clear evidence of his disability and of any significant impact as a result of it, whereas there was evidence to suggest he was complicit in the drug dealing as well as evidence that the landlord had made efforts to explore options to avoid eviction. As a consequence, an adequate public sector equality duty assessment would not have altered the court's decision that granting possession to the landlord was a proportionate means of achieving a legitimate aim.
Where a local authority landlord had no evidence that the tenant it was considering seeking possession against was disabled despite the authority having tried to contact the tenant, his GP and his other support services, the Court of Appeal held that the public sector equality duty had not been engaged. But when information suggesting that the tenant may have mental health problems came to light prior to the authority seeking to enforce the suspended possession order made against him it was held to have complied with the duty by carrying out a proportionality assessment at that point. The Court stated that, whilst the impact of the public sector equality duty 'is universal in application to the functions of local authorities', its application 'will differ from case to case, depending on the function being exercised and the facts of the case'.
In EHRC public sector equality duty guidance, the Commission suggests an approach to compliance which covers:
collecting and publishing equality information engagement
commissioning and procurement
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.
The Equality Act 2010 makes it clear that complying with the general duty may involve treating some people better than others. 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. This might mean making reasonable provisions and adjustment for them or treating them better than other people.
The Equality and Human Rights Commission (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.
Last updated: 19 April 2021
s.2 Equality Act 2010 (Commencement No. 6) Order 2011 SI 2011/1066.
s.149(1) Equality Act 2010.
R (on the application of Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin); R (on the application of Baker v Secretary of State for Communities and Local Government  EWCA Civ 141.
Pieretti v Enfield LBC  EWCA Civ 1104; Barnsley MBC v Norton  EWCA Civ 834; Bracking v Secretary of State for Work and Pensions  EWCA Civ 1345.
Ch.3, Essential guide to the public sector equality duty, ECHR, 2011.
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)  EWHC 2213 (Admin).
s.149(3) Equality Act 2010.
s.149(5) Equality Act 2010.
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.
s.153(1) and (2) Equality Act 2010.
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.
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).
Sch.18 to Equality Act 2010.
s.151(2) Equality Act 2010.
R (on the application of Weaver) v London & Quadrant Housing Trust and Equality and Human Rights Commissioner (Intervenor)  EWCA Civ 587; Poplar HARCA v Donoghue  EWCA Civ 595.
s.150(5) Equality Act 2010.
s.149(7) Equality Act 2010.
see Ch.5, Essential guide to the public sector equality duty, EHRC, January 2011.
R (on the application of (1) Rajput (2) Shamji) v Waltham Forest LBC: R (on the application of Tiller) v East Sussex CC  EWCA Civ 1577.
R (on the application of Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin).
Bracking v Secretary of State for Work and Pensions  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  EWHC 3261 (Admin); Kaur and Shah v Ealing LBC  EWHC 2062 (Admin); R (on the application of BAPIO Action Ltd) v Secretary of State for the Home Department  EWCA Civ 1139.
R (on the application of McDonald) v Kensington and Chelsea RLBC  UKSC 33; Hackney LBC v Haque  EWCA Civ 4.
R (on the application of W) v Birmingham CC: R (on the application of (1) M (2) G (3) H) v Birmingham CC  EWHC 1147 (Admin); (1) JG (2) MB v Lancashire CC  EWHC 2295 (Admin); R (on the application of (1) JM (2) NT v Isle of Wight Council  EWHC 2911 (Admin).
Harjula v London Councils  EWHC 448 (Admin).
Barnsley MBC v Norton  EWCA Civ 834.
Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC  UKSC 30; Hackney LBC v Haque  EWCA Civ 4; Pieretti v Enfield LBC  EWCA Civ 1104.
Blake and others v Waltham Forest LBC  EWHC 1027 (Admin).
R (Atherton) v Secretary of State for Work and Pensions  EWHC 395 (Admin).
Hotak v Southwark LBC : Kanu v Southwark LBC : Johnson v Solihull MBC  UKSC 30.
Hackney LBC v Haque  EWCA Civ 4.
Luton Community Housing Ltd v Nargish Durdana  EWCA Civ 445; Forward v Aldwyck Housing Group Ltd  EWCA Civ 1334; see also s.31(2A) of the Senior Courts Act 1981.
R (on the application of West Berkshire DC and anor) v Secretary of State for Communities and Local Government  EWCA Civ 441.
TM (A protected party by his litigation friend DM) v Metropolitan Housing Trust Ltd  EWHC 311 (QB).
Taylor v Slough Borough Council  EWHC 3520 (Ch).
Forward v Aldwyck Housing Group Ltd  EWCA Civ 1334.
Powell v Dacorum BC  EWCA Civ 23.
s.149(6) Equality Act 2010.
s.149(4) Equality Act 2010.
R (on the application of Chavda) v Harrow LBC  EWHC 3064 (Admin); R (on the application of JL and LL) v Islington LBC  EWHC 458 (Admin); R (on the application of Meany and others) v Harlow DC  EWHC 559 (Admin).