What is the Public Sector Equality Duty?
The Public Sector Equality Duty (PSED) was created under the Equality Act 2010 and came into force in 2011. It replaced the previous race, disability and gender equality duties. These had imposed an obligation on public authorities to promote equality, rather than simply to avoid discrimination, in the process shifting the onus from individuals to organisations. The PSED harmonised these three separate equality duties and extended them across the protected characteristics (see the section on Discrimination and Equality for details of protected characteristics).
The PSED covers local authorities, higher and further education institutions, schools, health bodies, police, fire and transport authorities and government departments (Law at Work 2020, p 277). It also applies to public, private or voluntary organisations carrying out public functions, including on behalf of local authorities.
The PSED has two parts: a general equality duty, supported by specific duties imposed by secondary legislation. The UK government website says the specific duties apply to most public bodies in England, such as local authorities and schools; most of those operating across Great Britain, such as government departments (except in regard to devolved functions); and a small number of cross-border bodies. The rules around the specific duties are complex, but the UK Government Equalities Office has published a guide.
There is a range of guidance on the specific duties and other aspects of the PSED from the Equalities and Human Rights Commission (EHRC).
What is the purpose of the Public Sector Equality Duty?
The EHRC says the duty is broadly designed to 'integrate consideration of equality and good relations into the day-to-day business of public authorities'. This is because if an organisation fails to think about how a function might affect different groups of people in different ways, it is unlikely to have its desired effect. That could lead to greater inequality. The 'general' duty element of the PSED attempts to combat this by demanding that organisations consider how they might play a positive role in advancing equality and good relations. The PSED requires organisations to reflect equality considerations in how they design policies (including internal ones) and deliver services, and to review these issues regularly.
The PSED is also designed to bring benefits to the organisations it covers. The EHRC cites a range of advantages. For example, it says workers tend to be more productive if they are in a supportive environment. Or, complying with the duty may lead to the organisation being able to recruit from a broader range of talent, and better represent the community it serves. The benefits are outlined, with case studies.
What are the effects of the Public Sector Equality Duty?
The EHRC says that, in practice, any organisations subject to the duty must, in the exercise of their functions, 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 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.
These are sometimes referred to as the three aims or arms of the general equality duty. The Act states that 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.
The Act explains meeting different needs as taking steps to take account of disabilities. Fostering good relations means tackling prejudice and promoting understanding between people from different groups. Importantly, it says that, in order for an organisation to comply with the PSED, it may need to treat some people more favourably than others.
The PSED covers the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Public authorities must also have due regard to the need to eliminate unlawful discrimination against someone because of their marriage or civil partnership status. This characteristic is unusual in that the first aim of the PSED applies to it, but the others – advancing equality and fostering good relations – do not.