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. These are 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 that carry 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 (https://www.equalityhumanrights.com/sites/default/files/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 (https://www.tuc.org.uk/sites/default/files/EQUALITY_TOOLKIT.pdf) and other resources available from the TUC website.


The PSED has been under attack by government ministers, although no changes have been made as yet to the law underpinning the duty. In September 2013, the government published the initial findings of a highly politicised review into the PSED by a parliamentary steering group. The review claimed that the PSED led to “useless bureaucratic practices”, and blamed the duty 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. 


At the same time, however, the review’s authors acknowledged that it was too early to test the effectiveness of the PSED, since it only became law in April 2011, and conceded “broad support” for the principles behind the PSED. 


Even though the committee acknowledged that its report was premature, its recommendations were implemented immediately. Although no formal changes have been made to the law on which the duty is based, their practical effect has been to undermine the power of the PSED to bring about positive change. These are the main recommendations:


Public bodies:


• should only collect diversity data where necessary;


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


• must reduce burdens on small employers;


• should remove pre-qualification questionnaires for contracts below £100,000. For any contracts over that amount, they should use a questionnaire without equality requirements;


• 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. 


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


The position in Scotland is very different. There, the ability to mainstream equality through public procurement has been strengthened by new Public Contracts (Scotland) Regulations 2015, implementing the EU Public Procurement Directive. For more information, see Chapter 12. 


In addition, under the Scotland Act 2016, the Scottish government now has the power to enact the public sector socio-economic equality duty (Part 1, EA10), which has never been brought into force by the Westminster government.