On 5 April 2011 the public sector equality duty (psed) came into force in England, Scotland and Wales. This duty replaces the existing race, disability and gender equality duties.
The PSED is the only provision in the law to address institutional discrimination within the public sector. It is a legacy of the Stephen Lawrence Inquiry. The PSED places three general duties and two specific duties on public authorities and those who carry out public functions.
The PSED places a general duty on public authorities and those who carry out public functions to have due regard to the need to:
Eliminate unlawful discrimination, harassment and victimisation
Advance equality of opportunity between different groups
Foster good relations between different groups
The Equality Act also gives Ministers the power to impose specific duties through regulations. The specific duties are legal requirements designed to help those public bodies covered by the specific duties meet the general duty.
Following a government consultation, the Equality Act 2010 (Specific Duties) Regulations 2011 were been laid before Parliament for approval, and came into force on 10 September 2011.
These regulations will promote the better performance of the equality duty by requiring the publication of:
equality objectives, at least every four years
information to demonstrate their compliance with the equality duty, at least annually
The Equality Duty covers: age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. The duty to have due regard to the need to eliminate discrimination also covers marriage and civil partnerships.
We are a small voluntary organisation. Why do we need to know about the Public Sector Equality Duty?
If your organisation works with people who face discrimination and/or your organisation is interested in tackling discrimination, advancing equality or fostering good relations (e.g. good race relations), you should be interested in the PSED because it may allow you to further your organisation’s aims or objectives and/ or to challenge the actions or inactions of a public body. Also, if your organisation receives or wants to receive funding via a grant, service agreement or contract from a public body, you need to understand the PSED. This is because public bodies should be rigorous about ensuring that organisations that they fund are open and accessible equally to everyone within the population they aim to serve, and do not discriminate on the grounds of age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. Your organisation needs to understand that if you receive or want to apply for public funds, public bodies may expect your organisation to be able to explain how you might assist the public body to meet the public sector equality duty.
There are two ways that a body can be subject to the general equality duty. Those bodies listed in Schedule 19 of the Equality Act 2010 are subject to the general duty. In addition, any organisation which carries out a public function is subject to the general duty. In this situation, the duty will only apply to the organisation's public functions, not to any private functions it carries out. The list of bodies which are subject to the general duty found in Schedule 19 includes key public authorities like local authorities, health, transport and education bodies, the police, the armed forces and central government departments. The list includes many of the same bodies which were previously covered by the race, disability and gender equality duties.
A private (or a voluntary) body is subject to the general duty in respect of any public functions which it has. The duty only applies to those functions, not to any private functions the organisation carries out. For example, if a security firm has a contract with a public body to transport prisoners, this function would be covered by the general duty, but any security work it undertakes for a supermarket would not be covered.
The Equality and Human Rights Commission is responsible for enforcing the equality duty. The Commission may seek to take steps to encourage compliance by the public body, before moving to enforcement, where appropriate. The Commission has a number of special statutory powers that it is able to use to enforce the specific duties and the general duty. Both the Commission and affected persons can apply to the High Court for a judicial review in respect of a failure to comply with the general duty.
Single-sex services are lawful in certain specified circumstances under the Equality Act 2010. The introduction of the public sector equality duty has not changed. The Act provides that the prohibition of sex discrimination does not apply where services are provided exclusively to one sex, as long as to do so is a proportionate means of achieving a legitimate aim, and at least one of the conditions set out below applies: More
Only people of that sex need the service. For example, post-natal exercise classes can be provided to women only, since only women need the service.
Where the service is also provided jointly for both sexes, an additional service exclusively for one sex will be lawful if the joint provision would not be sufficiently effective. For example, a new fathers' support group is provided by a health authority as there is insufficient attendance by men at the new parents support group.
If a service was provided for men and women jointly it would not be as effective and the level of need for the services makes it not reasonably practicable to provide separate services for each sex. For example, a women-only support unit for women who have experienced domestic or sexual violence can be set up, even if there is no parallel men-only unit because of insufficient demand.
The service is provided at a hospital or other place where users need special care, supervision or attention. For example, single-sex wards in hospitals and nursing homes and single-sex facilities in mental health facilities.
The service is for, or is likely to be used by, more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa). For example, separate male and female changing rooms or any service involving intimate personal health or hygiene.
The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the user is of the opposite sex. For example, sports sessions involving a high degree of physical contact such as judo or self-defence classes.
The objections above must be 'reasonable'. So a low degree of physical contact is unlikely to justify separate provision. For example, the fact that in first aid training there may be some physical contact between women and men in the classes is unlikely to warrant the provision of single-sex sessions. Similarly, where a person exercising public functions does anything in relation to the provision of single-sex services this will be lawful provided that one of the above conditions is met, and that such provision is a proportionate means of achieving a legitimate aim. For example, a primary care trust contracting with a voluntary sector organisation to provide counselling for women who have had a mastectomy.
The public sector Equality Duty does not mean that single sex services should be cut, have funding withdrawn or that any new services should not be funded. Neither does it mean that services should necessarily be provided on the same scale for both men and women. For example, because women make up the majority of victims of domestic violence and rape it may not be appropriate for a local council to fund or provide refuge services on an equal basis for men and for women, as set out in the example above. Further information on this can be found in the Commission's guidance on the Equality Act.
The equality duty covers the protected characteristic of age, which refers to a person having a particular age (for example, 32 year olds) or being within an age group (for example, 18-30 year-olds). This includes all ages, including children and young people.
There is an exemption: the equality duty does not apply to age with regard to education and service provision in schools or in relation to children's homes.
Provisions to ban discrimination because of age in relation to services came into force in October 2012.
Under the equality duty, registered providers of social housing (registered providers) are not listed for the general equality duty (under schedule 19 of the Equality Act 2010). They are therefore not listed for the specific duties (under Schedule 1 of the specific duties regulations).
The general equality duty also applies to certain private or voluntary sector bodies when they are carrying out public functions. This is where an organisation is exercising a function which would otherwise be exercised by the state and where individuals have to rely upon that person for the exercise of that function. This applies to 'any person who has functions of a public nature. The definition is very similar for the disability and the gender duties. This is the same approach as the definition of public authorities used by the Human Rights Act 1998. Whether or not an organisation is covered by this definition is a matter for the courts to decide.
The question of whether a registered provider is covered by the general equality duty is determined by whether they carry out any public functions. A landmark case in 2009 (Weaver vs. London and Quadrant Housing Trust) ruled that the housing provider in question was carrying out public functions, for the purposes of the Human Rights Act in the allocation, management and termination of social housing. This was based on the particular facts of the case, but it is likely to apply to most registered providers that have the same or similar functions.
The Commission is unable to comment on the status of individual organisations, as this is a decision for the courts. We advise housing providers who are unsure whether they are carrying out public functions, to safeguard their position by ensuring they comply with the general duty in relation to those functions. Registered providers may also find it useful to seek legal advice on this matter.
Remember that the general equality duty applies only to public functions, not to everything that a registered provider does. Examples of public functions include: allocation of housing, transfer and exchange of properties, setting rent levels, complaints procedures, tenant participation, consulting and informing tenants, setting terms of tenancy, and the termination of tenancies. It also includes the establishment and application of policies and procedures regarding anti-social behaviour and parenting orders.
Meeting the general equality duty for a public function requires registered providers to identify and tackle persistent and long standing disadvantage within that function.
Remember that any organisation (including a registered provider) is welcome to use or adapt the framework of the equality duty, whether or not they are covered by it. The Commission would urge any organisation that seeks to advance equality to use this approach.
Sourced from EHRC
Under the equality duty are public authorities required to monitor all of the protected characteristics of their staff?
Because the general equality duty requires you to analyse the effect of your organisation's functions on all protected groups, public authorities will not be able to meet the duty unless they have enough usable information.
If public authorities have not yet achieved a culture where employees or service users are ready to be asked about their sexual orientation, gender identity or religion or belief, they should take steps to engender a culture of trust in which this information could be collected. There may be other means of identifying the issues faced. Analysing national or local research and engagement with people from those groups can be useful for identifying potential issues of concern.
If this information is collected, it is important to explain why the information is being collected, what it will be used for, and how privacy will be protected.
Sourced from EHRC
There is no list of the information set out in the Equality Act 2010 or the regulations that state what information public bodies have to make available or accessible to the public in England. The statutory regulations, for England, simply say that the public authority must publish information annually and that it must include information about: a) people who are employees, where the public body employs 150 people or more; and b) about other people affected by its policies and procedures. The EHRC has issued non-statutory guidance and undertaken research. More
Equality information and the equality duty. A guide for public authorities was published in December 2011 by the EHRC. This guidance advises public bodies that ‘there is no explicit legal requirement to collect and use equality information across the protected characteristics, in order to have due regard to the aims of the general equality duty, public authorities must understand the impact of their policies and practices on people with protected characteristics’ but that ‘collecting and analysing equality information (including from engagement, where relevant) is an important way for public authorities to develop this understanding.’ The EHRC further advises that ‘equality information: can include information about the protected characteristics of staff and service users, or evidence used to inform policy development and decision-making such as local or national research on equality issues. It includes both quantitative (numerical) and qualitative (descriptive) information. Qualitative information may focus more on factors which are more difficult to measure or represent in quantitative terms.’
In relation to employment information, the EHRC advises that a range of information may be helpful including appropriately disaggregated, about: a) recruitment and promotion; b) numbers of part-time and full-time staff; c) pay and remuneration; d) training; e) return to work of women on maternity leave; f) return to work of disabled employees following sick leave relating to their disability; g) appraisals; h) grievances (including about harassment); i) disciplinary action (including for harassment); j) dismissals and other reasons for leaving.
In relation to services, the EHRC’s guidance is much less specific. The EHRC says that ‘it is for the individual organisation to decide what information it needs to appropriately deliver its services and to be able to demonstrate that it has had the right information available to influence its public policy decisions, including about which services should be provided, and how.’ The EHRC also says that public authorities ‘already collect (or have access to) a vast array of information on performance, service provision (including contracted-out services), decisions made, and the populations that they serve. This often includes information about who is or isn’t using their services, their levels of satisfaction and the outcomes that are achieved. It is likely that much of this information is already disaggregated by some of the protected characteristics. It is unlikely that you will be able to disaggregate information for every protected characteristic, due to sensitivities around collection and/or low numbers.’In November 2012, the EHRC published Publishing equality information: Commitment, engagement and transparency to report on the extent to which public bodies had published relevant and accessible information. For those interested in checking the performance of a public body and/or engaging proactively with public bodies, this report can provide invaluable assistance.
The Information Commissioner’s Office (ICO) provides extensive statutory and non-statutory guidance on the Freedom of Information Act 2000. The Information Commissioner has responsibility for issuing guidance on the Act and for enforcement. In order to understand what information you may be able to access under the Act, you need to understand the purpose of the Act. The ICO advises that the Freedom of Information Act 2000 provides public access to information held by public authorities in two ways a) firstly public authorities are obliged to publish certain information about their activities; and b) members of the public are entitled to request information from public authorities. The ICO also advises that:
public authorities ‘include government departments, local authorities, the NHS, state schools and police forces’ but the Act does not necessarily cover charities that receive grants and certain private sector organisations that perform public functions;
recorded information includes ‘printed documents, computer files, letters, emails, photographs, and sound or video recordings’;
the Act ‘does not give people access to their own personal data (information about themselves) such as their health records or credit reference file.’
The ICO is the most authoritative source of guidance on the Freedom of Information Act (FOIA) and its limitations. For example, it is important to be aware, if you want to make a FOIA request, that a public body has a number of statutory exemptions that it can claim. Two important exemptions are: a) that the information is reasonably otherwise available; or b) that it would cost too much to put together the information. The Whatdotheyknow website provides free advice and support to enable a layperson to easily make a FOIA request.
What are equality objectives and how should they be set and published? Is there a penalty for not doing so?
The EHRC explains certain listed public bodies are required to a) prepare and publish one or more objectives they think they should achieve to do any of the things mentioned in the aims of the general equality duty, by 6 April 2012, and at least every four years thereafter; b) ensure that those objectives are specific and measurable; c) publish those objectives in such a manner that they are accessible to the public.
These objectives required in relation to the PSED are called equality objectives.
There is no detailed explanation in statute or from the EHRC that clearly details what equality objectives should look like. The best guidance available from the EHRC on equality objectives is called Equality objectives and the equality duty: A guide for public authorities, this guidance was published in December 2011. There is no specific penalty for not publishing the equality objectives, although a failure to publish such equality objectives could be reported to the EHRC which could decide to take action.
The general equality duty also applies to organisations who exercise public functions. This will include private bodies or voluntary organisations which are carrying out public functions on behalf of a public authority. The Equality Act defines a public function as a function of a public nature for the purposes of the Human Rights Act 1998. An example of this would be a private company running a prison on behalf of the government. The company would, however, only be covered by the general equality duty with regard to its public functions, but not for their other work, like providing security services for a supermarket.
Sourced from EHRC
The general equality duty applies to procurement and commissioning by public authorities.
The general equality duty also applies to bodies which are carrying out public functions (in relation to those functions only). For those authorities, the general equality duty will also apply to their procurement and commissioning, in so far as procurement and commissioning are part of the exercise of those public functions.
The requirement to comply with the general equality duty applies to all procurement regardless of the value; the nature and value of the contract may, however, impact upon the relevance and proportionality of equality considerations.
Adapted from EHRC
The general equality duty requires public authorities to have due regard to the need to eliminate discrimination; advance equality of opportunity; and foster good relations – when making decisions and setting policies. To do this, it is necessary for the organisation to understand the potential effects of its activities on different people. Where these are not immediately apparent, it may be necessary to carry out some form of assessment or analysis, in order to understand them.
Case law on the previous equality duties set out some very clear guidance on what organisations need to do in order to have ‘due regard’. This will be relevant to the equality duty. In particular, decision-makers need to:
be aware of their responsibilities under the duty
make sure they have adequate evidence (including from consultation, if appropriate ) to enable them to understand the potential effects of their decisions on different people covered by the duty
consciously and actively consider the relevant matters, in such a way that it influences decision-making
do this before and at the time a decision is taken, not after the event
be aware that the duty can’t be delegated to third parties who are carrying out functions on their behalf
Case law also suggests that it is good practice to document how decisions were reached.
Yes, but there are some exceptions. Although having either migrant, refugee or asylum seeker status is not a protected characteristic, it is likely that any discriminatory treatment would be treated as racial discrimination, most typically with regard to 'nationality'.
The exceptions are in relation to immigration and nationality functions. Public authorities carrying out immigration or nationality functions are not required to have due regard to the need to advance equality of opportunity in relation to age; religion or belief or race (where race means nationality or ethnic or national origins). However, they are required to have due regard to the fostering of good relations and to the elimination of discrimination and other conduct prohibited by the Act, in carrying out those functions.
The Equality Act includes exceptions which mean that certain immigration decisions can be made in relation to: disability; race (where race means nationality or ethnic or national origins); and religion or belief, without being unlawful under the Act. Common examples are: decisions on entry clearance, and additional questioning for different protected characteristics.
There are also exceptions which allow direct or indirect nationality discrimination, or indirect discrimination based on place of residence/length of residence, when it is done to comply with another law or ministerial arrangement – i.e where the public authority has no choice other than to act in a certain way. Examples include: decisions about placing people on housing registers, and charging non UK residents for NHS treatment.
Treatment covered by these exceptions does not count as discrimination, or prohibited conduct prohibited by the Act, and so authorities are not under a duty to have due regard to the need to eliminate them.
As part of their obligation to have due regard, authorities need to understand the impact of their policies and practices on migrants, refugees and asylum seekers, many of whom face significant disadvantage and social exclusion. Since there are significant gaps in available data regarding the experiences and needs of refugees and migrants, it is likely that engaging directly with refugees and migrants and their representative groups will be helpful.