The general public sector equality duty (PSED) under section 149 of the Equality Act 2010 applies to all public authorities exercising public functions. This single general equality duty replaced former general equality duties which came into being from the turn of the millennium onwards through amendments to the Race Relations Act 1971 (to introduce the general race equality duty), the Disability Discrimination Act 1995 (to introduce the general disability equality duty) and the Sex Discrimination Act 1975 (to introduce the general gender equality duty).
The PSED requires due regard to be paid to the need to advance equality of opportunity in addition to eliminating discrimination and fostering good relations between persons shared a protected characteristic and those who do not (including tackling prejudice and promoting understanding). In addition to race, disability and gender, the protected characteristics covered by the PSED (8 in total) include age, gender reassignment, pregnancy and maternity, religion or belief, and sexual orientation – only marriage and civil partnership is missing in the protected characteristics covered by the PSED from those protected in the workplace generally.
Having “due regard” to the PSED requires public authorities to pay real thought to its requirements and keep in mind the principles of proportionality and relevance – “authorities should give due weight to the need to promote disability equality in proportion to its relevance. This requires more than simply giving consideration to … equality” (Disability Rights Commission, Statutory Code of Practice (2005), para 2.34). Demonstrating compliance should not be a box-ticking exercise but should instead be fully integrated into the decision-making process, and kept under regular review. In each change in policy, practice or procedure whilst a formal equality impact assessment (EIA) is not obligatory, some evidence of the analysis of the equality implications of a particular decision will be necessary to demonstrate that the public authority paid due regard to the PSED.
By way of example, Local Education Authorities and school governing bodies can both amount to public authorities for the purpose of the PSED. Although it is the nature of the function rather than the person or body exercising it which is determinative, education is undoubtedly a public function for the purpose of the PSED.
For added significance, section 153 of the Equality Act 2010 provides a power for Ministers of the Crown to impose specific duties on public authorities exercising public functions demonstrating their compliance with the PSED, revoking the former specific equality duties under the Race Relations Act 1971, the Disability Discrimination Act 1995 and the Sex Discrimination Act 1975, as amended.
Enforcement of the PSED takes place through the Equality and Human Rights Commission (EHRC) which is invested with assessing compliance and in instances of non-compliance issuing compliance notices, if necessary backed up by court orders.
Although enforcement of the specific duties also can only take place through the EHRC, any person with “sufficient interest” can bring judicial review proceedings where a failure to comply with a specific duty evidences a failure to comply with the general PSED. Such non-compliance may be relevant in determining whether an unlawful act has occurred under the Equality Act 2010 which is justiciable in the County Court or before a tribunal – one example of the PSED being utilised in a disability discrimination case is the recent Supreme Court case involving a disabled man, Doug Paulley, who was refused entry to a FirstGroup bus when a mother with a pushchair refused to move – https://www.linkedin.com/hp/update/6227474848558518272.
The PSED has so far been relatively underused for the purpose of advancing equality although there are signs that this might be changing. One sector which might see increasing focus on the PSED in the coming years is education where disabled pupils in particular are required to pursue discrimination claims though the First-Tier Tribunal (the special education needs and discrimination tribunal or SENDIST), which does not have the power to order the payment of compensation, rather than through the County Court. For more information on the PSED or discrimination, please contact Paul Clark or another member of the Employment Team at Jacksons Law Firm.
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