What does the ‘public sector equality duty’ require?

The short answer is that public bodies are always required to consider how what they do (or are thinking of doing) would impact on, among others, women/girls, members of black and minority ethnic communities, disabled people, and so on.

In more detailed terms: The PSED consists of a ‘general equality duty’, which is set out in section 149 of the Equality Act 2010 itself, and ‘specific duties’ which are imposed by secondary legislation. The specific duties are designed to help public authorities meet the general equality duty. (The PSED replaced what used to be separate duties in relation to sex, race and disability).

The new duty covers the following protected characteristics (which are the ones which apply to schools): disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation (referred to as “protected groups”). Other bodies (but not schools) are also concerned with age and marital status issues.

Bodies subject to the equality duty must, in the exercise of their functions, ‘have due regard to’ (i.e. think about properly) the need to:

  • Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
  • Advance equality of opportunity between people who share a protected characteristic and those who do not.
  • Foster good relations between people who share a protected characteristic and those who do not.

Having due regard for advancing equality involves:

  • Removing or minimising disadvantages suffered by people due to their protected characteristics.
  • Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
  • Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

Meeting different needs involves taking steps to take account of disabled people’s disabilities. The Act describes fostering good relations as tackling prejudice and promoting understanding between people from different groups. It states that compliance with the duty may involve treating some people more favourably than others.

The general equality duty applies to the public authorities listed in Schedule 19 of the Act. This includes many public authorities who were covered by the race, disability and gender equality duties. That includes local authorities and education bodies (including schools). Also government departments and the Secretary of State for Education.

Further detail on giving effect to the PSED:

  • People who make decisions in public bodies must do so aware of the duty’s requirements.
  • Compliance involves ‘a conscious approach and state of mind’.
  • This means that decision-makers must be fully aware of the implications of the PSED when making decisions about their policies and practices – that means having proper information about how what they are doing will impact on people.
  • The PSED mustt be complied with before and at the time that a particular policy is under consideration and a decision is taken. A public authority cannot satisfy the duty by justifying a decision after it has been taken.
  • Consideration of the need to advance equality forms an integral part of the decision-making process.

That means that decisions by local authorities, the governing bodies of academies/free schools and the Secretary of State must all – where equality issues arise – be properly based on the PSED.

If they are not, they may be challeneable by judicial review.

  1 comment for “What does the ‘public sector equality duty’ require?

  1. December 13, 2011 at 1:20 pm

    Your explanation of due regard is, if I may say so, exemplary. But can you help me with a query which I sometimes hear? If a school or LA has substantial evidence of high levels of need for a particular group, say Travellers, but chooses after deliberation not to allocate any resources to address the need, could it be challenged on the grounds that it has not, in fact, had due regard? If so, is there case law which establishes the principles for such a challenge?

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