Equality Act 2010: Public Sector Equality Duty what do I need to know?

EQUALITY ACT 2010:PUBLIC SECTOREQUALITY DUTYWHAT DO I NEED TO KNOW?A QUICK START GUIDEFOR PUBLIC SECTORORGANISATIONSwww.equalities.gov.uk

This replaces previous guidanceon the public sector Equality Dutypublished by the GovernmentEqualities Offce on 12 January 2011.Please discard the previous guidance.IntroductionThe Equality Act 2010 (the Act) replaces theprevious anti-discrimination laws with a singleAct. It simplifies the law, removing inconsistenciesand making it easier for people to understandand comply with it. It also strengthens the law inimportant ways, to help tackle discrimination andinequality. The majority of the Act came into forceon 1 October 2010.This quick start guide is intended to help publicsector organisations understand a key measure inthe Act – the public sector Equality Duty,which came into force on 5 April 2011. The EqualityDuty ensures that all public bodies play their part inmaking society fairer by tackling discrimination andproviding equality of opportunity for all.Sources of further information about the EqualityDuty are listed at the end of the guide.

The Equality DutyThe Equality Duty has three aims. It requires publicbodies to have due regard to the need to:• eliminate unlawful discrimination,harassment, victimisation and any other conductprohibited by the Act;• advance equality of opportunity betweenpeople who share a protected characteristic andpeople who do not share it; and• foster good relations between people whoshare a protected characteristic and people whodo not share it.Having due regard means consciously thinkingabout the three aims of the Equality Duty as partof the process of decision-making. This means thatconsideration of equality issues must influence thedecisions reached by public bodies – such as in howthey act as employers; how they develop, evaluateand review policy; how they design, deliver andevaluate services, and how they commission andprocure from others.Having due regard to the need to advanceequality of opportunity involves considering theneed to:• remove or minimise disadvantages suffered bypeople due to their protected characteristics;• meet the needs of people with protectedcharacteristics; and• encourage people with protected characteristicsto participate in public life or in other activitieswhere their participation is low.Fostering good relations involves tacklingprejudice and promoting understanding betweenpeople who share a protected characteristic andothers.Complying with the Equality Duty may involvetreating some people better than others, as far asthis is allowed by discrimination law. For example,it may involve making use of an exception or thepositive action provisions in order to provide aservice in a way which is appropriate for people whoshare a protected characteristic – such as providingcomputer training to older people to help themaccess information and services.Taking account of disabled people’sdisabilitiesThe Equality Duty also explicitly recognises thatdisabled people’s needs may be different fromthose of non-disabled people. Public bodiesshould therefore take account of disabled people’simpairments when making decisions about policiesor services. This might mean making reasonableadjustments or treating disabled people better thannon-disabled people in order to meet their needs.ExampleA university might decide to providecar parking spaces for disabled studentsso that those who cannot use publictransport because of their impairmenthave equality of opportunity in accessto courses. Although non-disabledstudents might also want a parking space,they will not suffer the same degree ofdisadvantage without one.4

Implementing the Equality DutyPublic bodies need to consciously think aboutthe three aims of the Equality Duty as part of theprocess of decision-making. The Equality Duty willbe one of a number of factors that need to beconsidered. The weight given to the Equality Duty,compared to the other factors, will depend on howmuch that function affects discrimination, equalityof opportunity and good relations and the extent ofany disadvantage that needs to be addressed.The following principles, drawn from case law,explain what is essential in order for the EqualityDuty to be fulfilled. Public bodies should ensure:Knowledge – those who exercise the public body’sfunctions need to be aware of the requirements ofthe Equality Duty. Compliance with the Equality Dutyinvolves a conscious approach and state of mind.Timeliness – the Equality Duty must be compliedwith before and at the time that a particular policyis under consideration or decision is taken – that is,in the development of policy options, and in makinga final decision. A public body cannot satisfy theEquality Duty by justifying a decision after it hasbeen taken.Suffcient information – the decision makermust consider what information he or she has andwhat further information may be needed in order togive proper consideration to the Equality Duty.No delegation – public bodies are responsiblefor ensuring that any third parties which exercisefunctions on their behalf are capable of complyingwith the Equality Duty, are required to comply withit, and that they do so in practice. It is a duty thatcannot be delegated.Review – public bodies must have regard to theaims of the Equality Duty not only when a policyis developed and decided upon, but also when it isimplemented and reviewed. The Equality Duty is acontinuing duty.Demonstrating compliance with theEquality DutyThere is no explicit requirement to refer tothe Equality Duty in recording the process ofconsideration but it is good practice to do so.Keeping a record of how decisions were reached willhelp public bodies demonstrate that they consideredthe aims of the Equality Duty.Real consideration – consideration of the threeaims of the Equality Duty must form an integral partof the decision-making process. The Equality Dutyis not a matter of box-ticking; it must be exercisedin substance, with rigour and with an open mind insuch a way that it influences the final decision.5

Who needs to be involved?It is important for people throughout public bodies to be aware of the Equality Duty.These include:• Board members – in how they set strategicdirection, review performance and ensure goodgovernance of the organisation.• Senior managers – in how they oversee thedesign, delivery, quality and effectiveness ofthe organisation’s functions.• Equality and diversity staff – in how they raiseawareness and build capacity about theEquality Duty within the organisation andhow they support staff to deliver on theirresponsibilities.• Human resources staff – in how they buildequality considerations in employment policiesand procedures.• Policy makers – in how they build equalityconsiderations in all stages of the policy makingprocess including review and evaluation.• Communications staff – in how they ensureequality information is available and accessible.• Analysts – in how they support the organisationto understand the effect of its policies andpractices on equality.• Front line staff – in how they use equalityconsiderations in the delivery of services tothe public.• Procurement and commissioning staff – inhow they build equality considerations in theorganisation’s relationships with suppliers.6

The Equality Duty in practiceThe Equality Duty ensures that public bodiesconsider the needs of all individuals in their day today work. The following examples show how theEquality Duty could help public bodies contribute tomaking society fairer by tackling discrimination andproviding equality of opportunity for all.ExampleA police authority, when reviewing itspolicy on hate crime, finds that 68% ofall hate crime reported is described asbeing homophobic. The police authoritytakes account of the extremely highoccurrence of hate crime on the localLGB population in drawing up andimplementing its new policy addressinghate crime.ExampleWhen reviewing the services it provides,a public transport service provider findsthat Sunday services are often usedby people going to religious services.Reducing the Sunday service wouldtherefore affect the ability of peoplebelonging to certain religious groups toattend those services. The transportservice provider considers this evidencealong with any other relevant factors,such as the cost of providing the service,when arriving at its conclusions followingthe review.7

Common misunderstandings aboutthe Equality DutyUnder the previous public sector equality duties (forrace, disability and gender), public bodies sometimestook unnecessary, inappropriate, disproportionate orcounter-productive action in the name of equality.The new Equality Duty should be applied in sucha way as to reverse the overly-bureaucratic andburdensome approach often used under theprevious duties, so that the focus is on performance,not process.4The Equality Duty does not imposea legal requirement to conduct anEquality Impact Assessment 2 . Nor isthere is any practical need to conduct one.Compliance with the Equality Duty involvesconsciously thinking about the three aims ofthe Equality Duty as part of the process ofdecision-making. That will entail understandingthe potential effects of the organisation’sactivities on different people, but there is noprescribed process for doing this. Keepinga simple record of how decisions werereached will help public bodies show how theyconsidered the Equality Duty. Producing anEquality Impact Assessment after a decisionhas been reached will not achieve compliancewith the Equality Duty.4The Equality Duty does not mean thatpublic bodies have to examine equalityissues where they are not relevantto the matter in hand. Where it is clearfrom initial consideration that a policy willnot have any effect on equality for any of theprotected characteristics, no further analysisor action is necessary. For example, if a publicbody is conducting a review in relation to anissue which has no implications for equality –such as an evaluation of the effect of coastalpollution on marine life – undertaking a formalconsultation or analysis addressing equalityissues where it is evident that the EqualityDuty is not relevant would be pointless and isnot required.4The Equality Duty does not requirepublic bodies to take disproportionateaction on equality. Public bodies shouldtake a proportionate approach whencomplying with the Equality Duty – in practice,this means giving greater consideration to theEquality Duty where a function or policy hasthe potential to have a substantial effect ondiscrimination or equality of opportunity forthe public or the public body’s employees, andless consideration where the potential effecton equality is slight.For example, a public body might decideto translate a leaflet about a key publicservice into a few commonly spokenminority languages, in order to ensurepeople from particular ethnic minoritycommunities have access to the service.2The specific duties which apply to relevant Welsh public bodies contain a requirement to make arrangements for assessing the likely impact oftheir activities on their ability to comply with the Equality Duty.8

But translating all of its public informationinto the 300 languages regularly spoken inLondon would be a disproportionateresponse to the Equality Duty.4The Equality Duty does not requirepublic bodies to treat everyone thesame. Rather, it requires public bodies tothink about people’s different needs andhow these can be met. So the Equality Dutydoes not prevent public bodies providingwomen-only services – for example, forfemale victims of sexual violence or domesticviolence. Indeed, such services may benecessary in order to ensure women haveaccess to the services they need.4The Equality Duty does not requirepublic bodies to treat all religions asbeing equal or to treat all religiousfestivals equally. For example, a publicbody displaying a Christmas tree every yearin its reception area would not be a breach ofthe Equality Duty.4The Equality Duty does not requirepublic bodies to make serviceshomogeneous or to try to remove orignore differences between people.So, for example, it does not mean that a publicbody must stop providing age-appropriateservices for people of different ages, or thatit can no longer commission some services tobe provided by different faith organisations.Faith organisations are sometimes well-placedto deliver services which meet the particularneeds of their community.EnforcementThe Equality and Human Rights Commission isresponsible for assessing compliance with andenforcing the Equality Duty. It has powers to issuecompliance notices to public bodies that have failedto comply and can apply to the courts for an orderrequiring compliance. The Equality Duty can also beenforced by judicial review. This can be done by theCommission or any individual or group of peoplewith an interest.9

Specific DutiesSection 153 of the Act gives Ministers powers toimpose specific duties on certain public bodies toenable them to perform the Equality Duty moreeffectively.A policy review paper outlining draft specific dutiesfor English public bodies and the non-devolvedfunctions of Great Britain wide bodies was publishedon 17 March 2011. The draft specific duties focus onreducing burdens and bureaucracy on public bodies,moving away from a process-driven approach to afocus on transparency. This will free up public bodiesto do what is appropriate in their circumstances,to take responsibility for their own performance,and to be held to account by the public, shiftingthe approach to give a focus on performance,not process. The policy review paper is availableat: http://www.equalities.gov.uk/pdf/110317%20Public%20sector%20Equality%20Duty%20-%20Policy%20review%20paper.pdf.Further sources of informationThe Equality and Human Rights Commission isthe statutory body established to help eliminatediscrimination and reduce inequality. It will producea statutory Code of Practice on the Equality Dutylater in 2011, explaining the law in more detail. Itwill also produce practical guidance on how publicbodies can comply with the Equality Duty andachieve good practice:www.equalityhumanrights.com0845 604 6610General information about the Government’sequality strategy and legislation is available from theGovernment Equalities Offce at:www.equalities.gov.uk0303 444 1204The specific duties applying to relevant Welshpublic bodies came into force on 6 April 2011.Further information can be found atwww.assemblywales.org. The specific dutiesapplying to relevant Scottish public bodies arecurrently being considered by the ScottishGovernment.10

© Crown copyright 2010JN405930April 2011