Legal opinion: Confusion over public sector equality duty

Public sector employers are probably aware of the public sector equality duty. But you’re not alone if you are unsure of the precise obligations or of what has or has not yet come into effect. The way in which the equality duty is being implemented by the Government has led to widespread confusion among public sector employers and others.


The public sector equality duty

The general equality duty was introduced under the Equality Act 2010 and came into force in April 2011. It encompasses age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation (the first arm of the duty applies also to marriage and civil partnership). In summary, those that are required to comply with the equality duty must have due regard to the need to:

  • eliminate unlawful discrimination, harassment and victimisation;
  • advance equality of opportunity between different groups; and
  • foster good relations between different groups.

Key points

  • The general public sector equality duty came into force in April 2011 and sets out three aims to which public sector employers must have regard.
  • The specific duties differ between England, Scotland and Wales and are yet to come into force in England and Scotland.
  • The draft specific duties for England were amended to reduce the burden on the public bodies to which they will apply.
  • The delay and changes have led to confusion as to the precise obligations that apply to public bodies.

In essence, these three aims should be part of the decision making process in respect of all actions by public sector bodies, including when dealing with employment matters.

The equality duty will apply to public bodies, but it is not just public sector employers that need to be aware of its effect. Any organisation that carries out a public function will be required to comply with the duty in respect of that aspect of its work. The example given in the guidance produced by the Equality and Human Rights Commission is a private company running a prison on behalf of the Government. This company would be required to comply with the equality duty in respect of the running of the prison, but not for any private work it does, for example providing security services to a supermarket.

The specific duties

So far it all seems relatively simple, but the confusion arises when it becomes clear that this general duty is not the only thing public sector employers need to be aware of. There are also “specific duties” which differ between England, Scotland and Wales. The specific duties are intended to help public bodies comply with the general duty and will not apply to non-public bodies, even those that carry out a public function.

The specific duties vary (both in respect to content and implementation date) depending on where the body is located. They came into force in April 2011 for Welsh public bodies whereas the Scottish Government is planning further consultation on them. In England (and for the non-devolved functions of bodies that operate GB-wide), the specific duties were initially due to come into effect in April 2011 along with the general duty. However, in March 2011, the Government Equalities Office announced that their introduction would be delayed so that they could be revised. They are due to be debated in the House of Lords in September 2011 and so will come into force only after this.

The intention seems to be for the specific duties applicable in England to be less bureaucratic than the original draft Regulations and to provide more power at a local level. It is understandable that the coalition Government would want to put their own stamp on the Regulations, but to announce the changes so soon before they were due to come into effect has caused considerable uncertainty to the public bodies to which they will apply.

For the time being, we can assess the English specific duties only in their draft form. Despite the delay and uncertainty, public bodies may well welcome the changes that look likely to be introduced. Many of the more bureaucratic requirements to publish extensive details of the action they have taken in respect to the equality duty have been removed. Instead, a less prescriptive requirement to publish information to demonstrate compliance with the equality duty is required. In addition, public bodies will now be required only to publish “one or more” equality objectives, whereas previously they would have been obliged to “prepare and publish objectives” which implied that multiple objectives were required.

The changes are likely to be less burdensome for public sector employers. But with any new legislation, much of the burden stems from getting to grips with what the new obligations will actually involve. By changing the Regulations so close to their implementation, the Government has – contrary to its intention – actually increased the burden on employers. Unfortunately, until we know exactly what the specific duties will be and when they will come into force, this confusion is only likely to continue.

Andrew Crudge, solicitor, Thomas Eggar LLP

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