Public Sector Equality Duty
WHAT IS THE ‘EQUALITY DUTY’?
It is important to state from the outset that the Equality Act 2010 applies to all organisations and service providers. For example, a one person plumber or electrician, sole market trader and mobile tyre fitter or mobile hairdresser have essentially, the same responsibilities as a large government organisation or major UK PLC.
This shared responsibility, on the face of it, is quite straightforward. Do not discriminate (offer less favourable treatment) to people who have one or more ‘protected characteristics’. (See below).
However, the reality of this responsibility in practice is often less than straight forward!
This duty placed on all public bodies and others carrying out public functions to ensure they tackle discrimination and inequality, and contribute to making society fairer. This equality duty is in addition to the statutory prohibitions against discrimination, harassment and victimisation, and also covers the protected characteristics mentioned above.
When performing their functions, public bodies have a general duty to have due regard to the need to:
- eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
- advance equality of opportunity between people from different groups, and
- foster good relations between people from different groups
‘Having due regard’ requires the body to consider the above when exercising its functions, for example, in the provision of services, including the need to:
- remove or minimise disadvantages suffered by people due to their protected characteristics
- meet the needs of people with protected characteristics, and
- encourage people with protected characteristics to participate in public life or in other activities where their participation is low
HOW IS THE ACT ENFORCED?
If you have a protected characteristic and you believe a public sector provider has breaches its duties towards you, you can raise your complaint with the relevant body. If you are unhappy with the response, you can make a legal claim.
A claim for discrimination, harassment or victimisation by an individual accessing (or trying to access) public services can be brought in the civil courts. If successful, the claimant may be awarded compensation; and the court may also make a declaration of discrimination, and/or make an injunction.
The Equality Act Public Sector Duty – April 2011 places a statutory duty on some organisations – particularly in the public or related sectors to promote Equality.
Equality Act 2010 – protected Characteristics
Public authorities with fewer than 150 employees are exempt from the requirement to publish information on their employees. However, they may still need to collect workforce information to be able to understand the impact of their policies and practices on their workforce. They may also need to publish some information about the impact of their employment functions on people with the different protected characteristics in order to demonstrate compliance with the general equality duty.
The information will usually fall into two main categories:
1. information to identify equality issues. Examples of this include equality monitoring information about employees or service users, or information about the effect of your activities on people with different protected characteristics.
2. information about steps taken to have due regard to the aims of the general equality duty. For example, any records you have about how you had due regard in making certain decisions, information that was considered in that decision-making (including engagement), consideration of steps to mitigate adverse impacts, or details of policies to address equality concerns.
HOW DO ORGANISATIONS IN GENERAL WORK WITH THE EQUALITY ACT?
In reality, many organisations actually ‘do’ very little. They may brief their teams and produce policies / guidance notes, but the Equality Act is often only referred to when there is a problem. For example, a complaint, grievance or claim of discrimination is made to which the organisation is forced to react.
The Proactive Duty - on the other hand?
Back as far as 2001, Parliament recognised that despite the presence of anti-discrimination laws, many organisations – including large public authorities were simply reacting to equality issues. Phrases such as ‘institutional racism’ – a then reference to the Metropolitan Police indicated a lack of proactive and embedded approaches to Equality and Diversity in a large organisation.
Various different ‘proactive’ duties were consequently introduced. This placed a responsibility on some organisations, to take steps to both eliminate discrimination and promote equality of opportunity i.e. not just wait for people to complain about it.
Who does the ‘Proactive Duty’ apply to?
The current proactive duty is known as The Equality Act 2010 - Public Sector Equality Duty. As the name suggests, it applies primarily to the Public sector. So if you are a Local Authority, a Police Service, a NHS hospital, part of the Civil Service, a School/College etc. then the duty definitely applies to you.
The duty can also apply to some private sector companies delivering Public Sector services. For example, if a Local or County Council contracts their public services to a private sector IT or Social Care or Housing to a company, then the duty to promote equality will apply to the private sector delivery company when undertaking local authority or county council duties.
The duty also applies to certain ‘hybrid’ organisations that deliver services that would ordinarily be delivered by the state or the public sector.
GENERAL DUTY AT A GLANCE
THE PUBLIC SECTOR EQUALITY DUTY – AT A GLANCE:
This is our reading of the specific requirements of the public sector duty as updated by the EHRC guide July 2020. For more complete information please visit the Equality and Human Rights Commission website.
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HEC can provide consultancy and our own experience of working with all aspects of the Equality Act and the Public Sector Duty.