Introduction to public sector equality duties
Public authorities have had positive equality duties in respect of race, disability and gender for several years. However, the Equality Act 2010 extended the existing public sector equality duties to cover age, gender reassignment, pregnancy and maternity, religion or belief, sexual orientation and (to a lesser extent) marriage and civil partnership.
What is the aim of the general equality duty?
The general duty requires public authorities to have due regard to the need to eliminate prohibited conduct (discrimination), advance equality of opportunity (for example, by removing or minimising disadvantages resulting from a protected characteristic) and foster good relations between those who share a protected characteristic and those who do not share it. A public authority may use positive action in order to comply with the general duty, but only insofar as this is allowed by discrimination law.
The general duty applies to specific public authorities listed in the Act, but also to any other entity, public or private, which carries out a public function (but only in relation to those public functions).
'Giving due regard' does not mean enacting every policy which would further the three aims of the equality duty, but rather thinking about the three aims before and at the time that a policy is being considered, and also when it is reviewed. Although it is not necessary to make explicit reference to consideration of the general duty, it is good practice to do so.
An exercise of public functions without due regard to the general duty risks judicial review. The Equality and Human Rights Commission (“EHRC”) can also assess compliance and enforce the general duty via various means.
Some public bodies also have specific duties under the Equality Act 2010 (Specific Duties) Regulations 2011.
Designated public bodies must first provide information to the public in a readily accessible and free format to demonstrate their compliance with the general duty. This must include information relating to:
(1) employees who share protected characteristics (for bodies with 150+ employees); and
(2) others who share protected characteristics and who are affected by the public body's policies and practices (e.g. service users).
Public bodies do not have long to get up to speed with these obligations, as most must publish this information by 31 January 2012. The information should subsequently be provided on an annual basis.
The second specific duty is to set and publish equality objectives by 6 April 2012, and thereafter every four years. Each public body must set at least one objective, which should also be measurable, although the number set should be proportionate to the size of the public body.
The quick start guide to the specific duties, published by the Government Equalities Office, states that it is up to each public body to decide for itself what information it publishes to show its compliance with the equality duty. This will vary greatly, depending on the size of the body; the range of functions it performs; and the extent to which those functions could affect equality. There is no prescribed format. The guide states that, for most public bodies, the sensible starting point will be to look at what equality information it publishes already, and to consider whether that gives a reasonable picture of progress on equality issues affecting its employees and service users.
Unlike the general duty, only the EHRC can take steps to assess and enforce compliance with the specific duties; an individual cannot bring a claim for judicial review.
Extending the scope of the equality duties shows the increasing awareness of the value placed on making society fairer, tackling discrimination and valuing diversity. These are extremely worthwhile objectives with which most people would agree. However, on a practical level, the duties 'lack teeth' as it will be difficult for anyone other than interest groups to pursue judicial review, and the EHRC will only have funds to pursue the biggest infringers. There is therefore a risk that the publication of massive quantities of raw data could become a tick box exercise that is both expensive and ineffectual. Given the Government's recent wide-ranging proposals to reform employment law, it also remains to be seen whether the general and specific equality duties will survive the Government’s ‘red tape challenge’ aimed at reducing excessive regulation.
Angharad Schell, Trainee Solicitor in Fieldfisher’s Employment and Pensions practice.