The Public Sector Equality Duty
14 December 2023
Bodies who carry out public functions (or are in receipt of public funds) have a duty under section 149 of the Equality Act 2010 (known as the Public Sector Equality Duty) to give ‘due regard’ to the need to achieve the objectives set out in the Equality Act 2010. The PSED encourages the active promotion of equality and requires ‘organisations to consider how they could positively contribute to the advancement of equality and good relations’. As expressed by the Equality Human Rights Commissions (EHRC), the purpose of the PSED is to ‘integrate consideration’ of the PSED into the heart of public authorities’ functions. This should be done at every level, from policy making to implementation.
What is the Duty?
The objectives of the 2010 Act are set out below and relates to specific protected characteristics identified in the Act which include age, disability, sex, race, and religion.
- Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010.
- Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
- Foster good relations between persons who share a relevant protected characteristic and persons who do not share it. Fostering good relations means tackling prejudice and promoting understanding between people from difference groups.
Compliance with the PSED may involve treating some people with a protected characteristic more favourably than others. It may also mean making reasonable adjustments or treating disabled people differently than abled-bodied people in order to meet their specific needs and not subject them to discrimination. There are very limited exceptions to the application of the duty.
Each public authority is required to publish specific and measurable objectives in respect of the PSED every four years (at minimum) and reports (in an accessible format) showing their compliance with the PSED. Organisations with at least 150 employees are required to annually publish information regarding the people who share protected characteristics and who are employees or are affected by the public authority’s policies and services. The reporting is designed to enable a public authority to understand the impact of their functions.
Implementing the PSED is not a matter of box ticking, and public bodies must comply with the PSED before and at the time a particular policy is under consideration, as well as at the time a decision is taken. Compliance cannot be evidenced by justifying a decision after it has been taken.
The duty is of a decision maker personally in terms of what he or she knew and took into account. A decision maker cannot be assumed to know what was in the minds of the officials giving advice on the decision and must exercise the duty in substance with rigour and with an open mind and in such a way that it influences the final decision.
We recommend that consideration of the PSED is evidenced in writing as part of the decision-making process.
The decision making of a public body may be challenged by way of an application to the High Court for judicial review and failure to comply with the PSED can provide ground for challenge. The EHRC is responsible for assessing compliance with PSED and enforcement. Recent examples include:
- A government department planned to shut down two lifts and reduce the time lifts were operating in its office building in order to cut energy costs as part of an environmental initiative. The union used the PSED to challenge this, pointing out the impact on disabled staff. As a result, the department reversed its decision.
- Managers in a local authority announced that they would no longer be carrying out Equality Impact assessments. Local equality organisations wrote a briefing highlighting court cases where local authorities that had not carried out impact assessments had been found to have breached the PSED. This was sent to all local councillors. The councillors reversed the decision.
Law covered as at September 2022.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2023.