FAQs

 This webpage sets out some of the most frequently asked questions about the Public Sector Equality Duties.

The Equality and Human Rights Commission is responsible for enforcing PSED. The Commission may seek to take steps to encourage compliance by a public body, before moving to enforcement, where appropriate. The Commission has a number of special statutory powers that it is able to use to enforce the specific duties and the general duty. Both the Commission and affected persons can apply to the High Court for a judicial review in respect of a failure to comply with the general duty.

Commission enforcement powers: the general duty

Assessment

The Commission can conduct an assessment into the extent to which, or the manner in which, a body has complied with its general equality duty.

Compliance notice

If, following an assessment, the Commission thinks that a person has failed to comply with their general equality duty, it can issue a notice requiring the person to comply with its duty and to give the Commission, within the period of 28 days beginning with the date on which they receive the notice, written information of steps taken or proposed for the purpose of complying with the duty. This notice is known as a ‘compliance notice’.

The compliance notice can require a person to give the Commission information required for assessing compliance with the duty. If it does so, it must specify the period within which the information is to be given (beginning with the date on which the notice is received, and not exceeding three months), and the manner and form in which the information is to be given.

Whilst the notice can require information that is required for assessing compliance with the duty, the Commission cannot oblige the person to give information that he or she is prohibited from disclosing under an enactment or that he or she could not be compelled to give in proceedings before the Court of Session.

Failure to comply with a compliance notice

If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Court of Session for an order requiring the person to comply.

Commission enforcement powers: the specific duties

The Commission can also issue a compliance notice where it thinks that a listed authority has not complied with its specific duties. It can do this without the need to conduct an assessment.

If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Sheriff Court for an order requiring the person to comply.

Judical review
If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Sheriff Court for an order requiring the person to comply.

In addition to the Commission’s powers to enforce the duty, if a public authority does not comply with the general equality duty, its actions, or failure to act, can be challenged by means of a claim to the Court of Session for judicial review. A claim for judicial review could be made by a person or a group of people with an interest in the matter. A claim can also be made by the Commission.

Where a judicial review is successful, the court can quash the decision made by the public authority being challenged. That can result in the authority concerned having to repeat the decision-making process, this time ensuring it does give the due regard to the needs of the duty which it failed to do in reaching its original decision. A number of public authorities have been successfully challenged in this way in relation to the equality duties which preceded the public sector equality duty.

 For example:

• ​The Department for Education (decision to end the Building Schools for the Future programme)

• Birmingham City Council (decision to restrict access to care services to those with ‘critical’ needs).

 A claim for judicial review cannot be made in respect of the specific duties – these can only be enforced by means of a compliance notice, as set out above. A failure to comply with the specific duties may nevertheless be used as evidence of a failure to comply with the general equality duty.

The Equality Act 2010 makes it unlawful to discriminate against people on the grounds of a protected characteristic.

The protected characteristics are as follows:

• Age: The Act protects people of all ages. Age is the only protected characteristic by which direct discrimination can be justified (if it can be argued that treating someone differently because of their age is meeting a legitimate aim).

• Disability: The Act applies to a range of people that have a condition (physical or mental) which has a significant and long-term adverse effect on their ability to carry out ‘normal’ day-to-day activities. This protection also applies to people that have been diagnosed with a progressive illness such as HIV or cancer.

• Gender Reassignment: People who intend to, are in the process of, or have transitioned to the opposite gender to the one they were assigned at birth are protected under the Act.

• Pregnancy and Maternity (including breastfeeding mothers): A woman is protected against discrimination on the grounds of pregnancy and maternity. With regard to employment, the woman is protected during the period of her pregnancy and any statutory maternity leave to which she is entitled. Also, the Act makes it unlawful to discriminate against women breastfeeding in a public place. (In Scotland, women’s rights to breastfeed and bottle feed are also protected under the Breastfeeding etc. (Scotland) Act 2005; trying to prevent breastfeeding or bottle feeding in a public place or licensed premises is a criminal offence).

• Marriage and Civil Partnership: The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.

• Race: Everyone is protected from discrimination on the grounds of race. The definition of race includes colour, ethnic / national origin and nationality.

• Religion or belief: The Act covers any religion, religious or non-religious beliefs. This includes philosophical belief or non-belief. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour. Denominations or sects within a religion are also protected.

• Sex: Women and men are protected from discrimination on the grounds of sex.

• Sexual Orientation: The Act protects lesbian, gay, bi-sexual and heterosexual people from discrimination.

You can see a more in-depth definition of these protected characteristics on the Equality and Human Rights Commission website.

Bodies subject to the duty must have due regard to each of the three needs set out in the general equality duty in exercising their functions.

To ‘have due regard’ means that in making decisions and in its other day-to-day activities a body subject to the duty must consciously consider the need to do the things set out in the general equality duty: eliminate discrimination, advance equality of opportunity and foster good relations.

How much regard is 'due regard'?

How much regard is 'due' will depend on the circumstances and in particular on the relevance of the needs in the general equality duty to the decision or function in question.

The greater the relevance and potential impact, the higher the regard required by the duty.
For example, compared to the purchase of stationery, the decisions a local authority makes about the provision of social care for older people will have greater potential impact and more relevance to the needs of the duty and so will need a higher degree of regard.

The three needs set out in the duty may be more relevant to some functions than others; or they may be more relevant to some protected characteristics than others. For example:

• One or more of the needs of the duty are likely to be relevant to an NHS Board's policy on home working because of its direct impact on staff with different protected characteristics, for example disabled people, but it is unlikely that any of the needs will be relevant to its policy on office waste recycling

• The provision of burial and cremation services is likely to be highly relevant in relation to religion or belief and may have a smaller degree of relevance to the other protected characteristics.

There are many cases in which the courts in England have considered whether a body has complied with the equality duties on race, disability and gender which the public sector equality duty has replaced. The principles set out in those cases will be relevant to the duty under s.149.

In R. (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 the court considered what a relevant body has to do to fulfil its obligation to have due regard to the needs set out in the general equality duty. The six ‘Brown principles’ it set out have been accepted by courts in later cases. Those principles are that:

• In order to have due regard, those in a body subject to the duty who have to take decisions that do or might affect people with different protected characteristics must be made aware of their duty to have ‘due regard’ to the needs of the duty

• Due regard is fulfilled before and at the time a particular policy that will or might affect people with protected characteristics is under consideration as well as at the time a decision is taken. Due regard involves a conscious approach and state of mind

• A body subject to the duty cannot satisfy the duty by justifying a decision after it has been taken. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision are not enough to discharge the duty

The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision. The duty has to be integrated within the discharge of the public functions of the body subject to the duty. It is not a question of ‘ticking boxes’. However, the fact that a body subject to the duty has not specifically mentioned in carrying out the particular function where it is to have ‘due regard’ does not determine whether the duty has been performed. But it is good practice for the policy or decision maker to make reference to [s.149] and any Code or other non-statutory guidance in all cases where [s.149] is in play. ‘In that way the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced’.

The duty is a non-delegable one. The duty will always remain the responsibility of the body subject to the duty. In practice another body may actually carry out the practical steps to fulfil a policy stated by a body subject to the duty. In those circumstances the duty to have ‘due regard’ to the needs identified will only be fulfilled by the body subject to the duty if:

(1) It appoints a third party that is capable of fulfilling the ‘due regard’ duty and is willing to do so

(2) The body subject to the duty maintains a proper supervision over the third party to ensure it carries out its ‘due regard’ duty.

The duty is a continuing one.

It is good practice for those exercising public functions to keep an accurate record showing that they had actually considered [the general equality duty] and pondered relevant questions. Proper record keeping encourages transparency and will discipline those carrying out the relevant function to undertake the duty conscientiously. If records are not kept, it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by [s.149].

In addition to the Brown principles courts have also said that:

• The general equality duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups; it is a duty to have due regard to the need to achieve these goals

• A body subject to the duty will need to consider whether it has sufficient information to assess the effects of the policy, or the way a function is being carried out, on the needs set out in the general equality duty

Whilst questions of available resources may form part of its decision-making consideration, a body cannot avoid complying with the duty by claiming that it does not have enough resources to do so.

The courts have said that even where the context of decision making is financial resources in a tight budget, that does not excuse non-compliance with the duty and ‘indeed there is much to be said that in straitened times the need for clear, well informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater’.

(source: EHRC Technical Guidance on the Public Sector Equality Duty Scotland)

There are two ways that a body can be subject to the general equality duty. Those bodies listed in Schedule 19 of the Equality Act 2010 are subject to the general duty. In addition, any organisation which carries out a public function is subject to the general duty. In this situation, the duty will only apply to the organisation's public functions, not to any private functions it carries out.

The list of bodies which are subject to the general duty found in Schedule 19 includes key public authorities like local authorities, health, transport and education bodies, the police, the armed forces and central government departments. 

The Equality and Human Rights Commission also publishes guidance which names all the individual public authorities covered by the specific duties in Scotland. This guidance can be found here.