Public Sector Equality Duty in England, Scotland and Wales

Public Sector Equality Duty in England,
Scotland and Wales:
The past, the present and the future
Barbara Cohen
Discrimination Law Association
September 2013
The past: Race, Disability and Gender Equality Duties
• 1999 Stephen Lawrence Inquiry Report:
“It is incumbent upon every institution to examine their policies and the outcome
of their policies and practices to guard against disadvantaging any section of our
• Race Relations (Amendment) Act 2000 - brought all public
functions within the scope of the Act and imposed on public
authorities a new enforceable Race Equality Duty.
• Specific duties required review of all functions for relevance to race
equality, race equality scheme with arrangements for consultation,
training, monitoring of workforce by ethnicity.
• Followed by Disability and Gender Equality Duties – each with
different emphases in general and specific duties.
The Present: Public Sector Equality Duty,
Equality Act 2010
A public authority must, in the exercise of its functions, have due regard
to the need to:
• Eliminate discrimination, harassment and other prohibited conduct
• Advance equality of opportunity between different groups and
• Foster good relations between different groups.
The duty applies to any person exercising public functions in the exercise
of such functions.
The duty applies to age, disability, gender reassignment, pregnancy and
maternity, race, religion or belief, sex and sexual orientation.
The present: Public Sector Equality Duty,
Equality Act 2010 – meaning of the duty
• To have due regard to the need to advance equality of opportunity
includes having due regard, in particular, to the need to:
• Remove or minimise disadvantages
• Take steps to meet different needs
• Encourage greater participation
• To have due regard to the need to foster good relations includes
having due regard, in particular, to the need to:
• Tackle prejudice; and
• Promote understanding
The present: Public Sector Equality Duty,
Equality Act 2010 - Specific Duties
• English public authorities, central government departments, national
public authorities must:
• Publish one or more objectives once every 4 years
• Publish annually information showing compliance including information re
workforce and users of services
• Wales: 15 far more prescriptive duties, including impact assessment,
monitoring, engagement, training, strategic equality plans, and
• Scotland: 10 duties, including impact assessment and review of
policies or practices, gender pay gap information, gather and use
employee information, procurement.
The present: Public Sector Equality Duty,
Equality Act 2010 - legal challenges
• Applications for judicial review of decisions by public bodies which
individuals or groups believe have been made in breach of the PSED;
• A range of austerity decisions have been challenged not all
successfully – citing potential adverse impact on particular groups;
• Issue now is rarely the absence of equality impact assessment but
whether such assessment was adequate to comply with the PSED;
• Courts have resisted taking on role of ‘micro-managing’ how public
bodies develop and decide on policy proposals.
The present: Review of the Public Sector
Equality Duty
Part of the ‘Red Tape Challenge’ - to reduce undue burden of
regulations on business and public bodies.
Purpose: “To establish whether the Duty is operating as intended”
What was “intended?”
• When Act approved by Parliament: “the purpose …is to oblige public
bodies to consider equality issues in respect of all of their functions”
• When PSED brought into force in 2011 Government’s aims were:
• To build on and simplify previous equality duties and to extend to other
protected characteristics;
• To be outcome-focused;
• To reduce the bureaucracy associated with the previous duties.
The present: Review of the Public Sector
Equality Duty – lack of evidence
The Review announced in May 2012 reported in September 2013. The
Steering Group Report acknowledged that in respect of some major
issues they did not have sufficient evidence:
• Lack of evidence re costs and benefits - hence not able to make a
‘final judgment’;
• Qualitative research based on views of self-selected respondents –
unable to provide analysis of how prevalent such views are;
• Applies only to England; no consideration of how PSED is working in
Scotland or Wales with more prescriptive specific duties;
• Limited engagement by business: no direct engagement with SMEs;
Review did not follow up how PSED being used to support SMEs to get
public contracts.
The future: Main conclusion of the Review of the Public
Sector Equality Duty
“It is too early to make a final judgment about the impact of
the PSED. Government should consider conducting a formal
evaluation of the Duty in three years’ time. This would enable
the PSED to embed more thoroughly and should consider
whether the Duty is an effective means of achieving the goal
of sensitising public bodies to equality issues and what
alternatives there might be. This work could be informed by
the EHRC’s medium-term work on how the PSED and the
more prescriptive specific duties operate in Scotland/Wales.”
The future: Review of the Public Sector Equality Duty Recommendations
Positive recommendations:
• Clearer guidance on minimum requirements is needed, including
more sector specific guidance.
• Regulators, inspectorates, ombudsmen should integrate PSED in their
core functions and collaborate with EHRC re enforcement.
Neither positive nor negative recommendations:
• Public bodies should adopt proportionate approach to compliance.
• Public bodies should only collect diversity data when necessary for
compliance with the PSED.
The future: Review of the Public Sector Equality Duty
Potentially negative recommendations:
• Public bodies must reduce the burdens placed on small employers in
procurement and contract conditions.
• Public bodies should be challenged where their procurement processes
create barriers for small businesses and charities.
• Public bodies should be proportionate in publishing information –
Steering Group divided, but Chair recommends that Government
should consider removal or modification of specific duties.
• Enforcement of PSED needs to be proportionate and appropriate –
Government should consider quicker, less costly ways than judicial
review to reconcile PSED disputes.
The future: uncertain
Factors that may affect the future of the PSED include:
• How public bodies respond to the Review report;
• Whether the EHRC and inspectorates collaborate to secure more
effective enforcement;
• Better evidence of how equality in public procurement works for
businesses, especially SMEs, and can produce improved outcomes;
• What approach to a statutory public sector equality duty the
next Government will take.