The Public Sector Equality Duty

What is the Public Sector Equality Duty?

The Equality Act 2010 refers to the public sector equality duty as the 'general equality duty'.

The general equality duty is a duty on public bodies and others carrying out public functions. It ensures that public bodies consider the needs of all individuals in their day to day work in shaping policy in delivering services, and in relation to their own employees.

The new general equality duty  supports good decision - making - it encourages public bodies to understand how different people will be affected by their activities so that policies and services are appropriate and accessible to all and meet different people's needs. By understanding the effect of their activities on different people, and how inclusive public services can support and open up people's opportunities, public bodies are better placed to deliver policies and services that are efficient and effective. The duty therefore helps public bodies to deliver the Government's overall objectives for public services.

What has changed?

The new general equality duty replaces the three previous public sector equality duties - for race, disability and gender. It covers the following protected characteristics:

  • Age (people within a particular age group. For example older people or younger people).
  • Disability (people with physical or mental disabilities which have a substantial and long-term impact on carrying out day-to-day activities).
  • Gender reassignment (people who have undergone, or are in the process of undergoing, or intend to undergo a process to re-assign physical or other attributes of their sex).
  • Marriage and Civil Partnership (people who are married or who are civil partners – this doesn’t apply to customers, only to staff in terms of non-discrimination).
  • Pregnancy and maternity (for the provision of services, this refers to a woman who is pregnant or has given birth in the past 26 weeks or is breastfeeding. For employment, it refers to a woman who is pregnant, or is on maternity leave, or has a pregnancy related illness).
  • Race (a person’s colour, national identity or ethnic / national origins).
  • Religion and belief (people of religious faith, people of no faith, and peoples’ philosophical beliefs).
  • Sex (males and females).
  • Sexual orientation (peoples’ sexual preferences, which may be towards people of the same sex, the opposite sex or people of both sexes).

The general equality duty covers public authorities when carrying out their public functions as service providers, as policy makers and as employers and also covers services and functions which are contracted out. It also covers all bodies carrying out a public function in relation to that function, where the ‘public function’ is one defined as such by the Human Rights Act 1998. This includes private and voluntary sector organisations.

The general equality duty requires public bodies to have due regard to the need to:

  • eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act;
  • advance equality of opportunity between people who share a protected characteristic and people who do not share it; and
  • foster good relations between people who share a protected characteristic and people who do not share it.

Having due regard means consciously thinking about the three aims of the general equality duty as part of the process of decision-making. This means that consideration of equality issues must influence the decisions reached by public bodies - such as in how they act as employers; how they develop, evaluate and review policy; how they design, deliver and evaluate services, and how they commission and procure from others.

Having due regard to the need to advance equality of opportunity involves considering the need to:

  • remove or minimise disadvantages suffered by people due to their protected characteristics;
  • meet the needs of people with protected characteristics; an
  • encourage people with protected characteristics to participate in public life or in other activities where their participation is low.

Fostering good relations involves tackling prejudice and promoting understanding between people who share a protected characteristic and others.

The Act explicitly recognises that disabled people's needs may be different from those of non-disabled people. Public bodies should therefore take account of disabled people's impairments when making decisions about policies or services. This might mean making reasonable adjustments or treating disabled people better than non-disabled people in order to meet their needs.

Specific Duties

Whilst equality legislation is a reserved matter for Westminster, the Scottish Government has the power to introduce specific duties to assist listed public authorities to meet the requirements of the general equality duty. 

The purpose of the specific duties in Scotland is to help those authorities listed in the Regulations in their performance of the general equality duty. Many of the authorities that are subject to the general duty are also covered by the specific duties. 

The general duty in relation to age does not apply in relation to education and service provision in schools or in relation to children’s homes.

The key elements of the new specific duties are:

  • Publishing equality outcomes, based on evidence and involvement of equality groups and communities
  • Reporting on 'mainstreaming' - action to embed equality into day-to-day systems and practices e.g. policies, procedures and corporate systems
  • Consideration of the impact on equality of policies and practices, informed by evidence
  • Gathering and publishing employment data
  • Duty to consider award criteria and conditions in relation to public procurement
  • Scottish Ministers' duty to set national equality priorities and report on progressPublication duty - simplification of reporting using existing public performance reporting systems.