The Public Sector Equality Duty

The Public Sector Equality Duty is found in section 149 of the EA 10. Detailed guidance on the duty can be downloaded from the Equality and Human Rights Commission (EHRC) website. This duty requires public authorities, when exercising their 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;

• sexual orientation.

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.

Like every other aspect of employment and discrimination law, the PSED is under attack by the current administration, although no changes have yet been made to the legislation underpinning the duty.

Initial findings of a review by an the independent parliamentary steering group were published in September 2013. The review criticises those responsible for implementing the PSED, accusing them of “useless bureaucratic practices”, 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 criticises the use of judicial review to enforce the duty and EHRC guidance, as well as “burdensome” Equality Impact Assessments.

Despite these criticisms, the steering group was forced to acknowledge that it was too early to test the effectiveness of the PSED, since it only became law in April 2011. It also recognised the existence of “broad support” for the principles behind the duty.

Recommendations in the report were put into effect immediately. They include:

• 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.

Although no formal changes to the EA 10 are recommended, the practical effect of these recommendations will be to seriously curtail the effectiveness of the duty, undermining the public body’s ability to collate the up-to-date equality data that tells them whether there is a problem, and by removing the tools through which public bodies use public procurement to drive through improvements.