The Public Sector Equality Duty

The Public Sector Equality Duty is found in section 149 of the EA 10. Detailed guidance on the duty is available on the Equality and Human Rights Commission (EHRC) website. This duty requires public bodies, and private bodies when carrying out public functions, to have “due regard” to the need to eliminate discrimination, advance equality of opportunity and to foster good relations across the following protected characteristics:

• age;

• disability;

• gender reassignment;

• pregnancy and maternity;

• race;

• religion or belief;

• sex; and

• sexual orientation.

The duty applies to the public bodies listed in Schedule 19 of the EA 10 i.e. local authorities, higher and further education institutions, schools, health bodies, police, fire and transport authorities and government departments. It also applies to public, private or voluntary organisations carrying out public functions (including on behalf of local authorities).

The EHRC has produced guidance on mainstreaming equality in public procurement (outsourcing): Buying better outcomes, published on its website.

www.equalityhumanrights.com/sites/default/files/publication_pdf/buying_better_outcomes_final.pdf

The Public Sector Equality Duty (PSED) is a powerful tool in the hands of anti-discrimination activists and advocates of a fair and tolerant society. For more information on the duty, see the TUC Equality Duty Toolkit and other resources available from the TUC website.

https://www.tuc.org.uk/sites/default/files/extras/equality_toolkit.pdf

Like every other aspect of employment and discrimination law, the PSED has been attacked by the government, although no changes have yet been made to the law underpinning the duty.

In September 2013, the initial findings of a highly politicised review into the PSED by a parliamentary steering group were published, The review made allegations of “useless bureaucratic practices”, and blamed the PSED for diverting scarce resources from front-line services, “burdening” public and private sector employers with “red tape”, asking intrusive questions of service users and acting as a barrier to charities and small businesses who want to bid for public services. The report also criticised the use of judicial review to enforce the duty, as well as “burdensome” Equality Impact Assessments.

Despite launching this extensive criticism, the review’s authors acknowledged that it was in fact too early to test the effectiveness of the PSED since it only became law in April 2011. The committee also conceded “broad support” for the principles behind the PSED.

Even though the committee acknowledged that its report was premature, its recommendations were put into effect immediately. Although these do not involve formal changes to the law, their practical effect has been seriously to undermine the power of the PSED to bring about positive change. Here are the main recommendations:

• public bodies should not collect diversity data unless it is necessary for them to do so;

• public bodies must not “gold plate” their approach to the duty;

• public bodies must reduce the burdens on small employers;

• public bodies should remove the Pre-Qualification Questionnaires for contracts below £100,000. For any contracts over that amount, they should use an equivalent questionnaire which does not include equality requirements;

• public bodies should not impose “onerous” or “disproportionate” requirements on contractors delivering services, particularly those with fewer than 50 employees, to provide equality data on workforce and service users.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/237194/Review_of_the_Public_Sector_Equality_Duty_by_the_Independent_Steering_Group.pdf

In April 2013, the TUC published evidence compiled on its behalf by LRD demonstrating the positive impact of the PSED, and calling for statutory equality reps, proper resourcing of the EHRC and a statutory Code of Practice on implementing the PSED.

https://www.tuc.org.uk/sites/default/files/tucfiles/tucresponsepsedreview.pdf