Essential Guide To The Public Sector Equality Duty

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GUIDANCEThe Essential Guideto the Public SectorEquality DutyEngland (and Non-Devolved PublicAuthorities in Scotland and Wales)Equality and Human Rights Commissionwww.equalityhumanrights.com

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesContents1. Introduction . 32. Introduction to the equality duty . 53. What the law requires . 114. Putting the general equality duty into practice . 135. Putting the specific duties into practice . 246. Embedding the equality duty into your organisation . 307. Regulatory framework . 33Appendix 1: Section 149 of Equality Act 2010 Public sector equality duty . 36Appendix 2: The Equality Act 2010 (Statutory Duties) Regulations 2011 . 38Appendix 3: Glossary . 40More information . 46Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20142

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Wales1. IntroductionContext for this guideThis guide is one of a series written by the Equality and Human Rights Commission(the Commission) to explain how public authorities can meet the requirements of theEquality Act 2010 (the Act). The Act brought together all previous equality legislationin England, Scotland and Wales. The Act included the public sector equality duty,which replaced the former duties relating to race, disability and gender equality. Thepublic sector equality duty came into force on 5 April 2011.There are five England/GB guides giving advice on the duty:1.The essential guide to the public sector equality duty2.Equality objectives and the equality duty3.Equality information and the equality duty4.Meeting the equality duty in policy and decision-making5. Engagement and the equality dutyThe essential guide provides an overview of the public sector equality dutyrequirements. The other four documents provide more detailed guidance on keyareas and advice on good practice. Further information and resources are availableat: duty/This is the fourth edition of this guide.If you require this guide in an alternative format and/or language please contact us todiscuss your needs. Contact details are available at the end of the publication.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20143

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesLegal status of this guideThis guidance provides advice on how to meet the equality duty. It will assist publicauthorities to comply with their legal duties under: Section 149 of the Equality Act 2010 (the public sector equality duty), and The Equality Act 2010 (Specific Duties) Regulations 2011.Intended audienceThis guide is aimed at those responsible for implementing the equality duty in publicauthorities in England and for non-devolved public authorities in Scotland and Wales.The Commission has produced separate guidance on the equality duties for publicauthorities in Wales and Scotland, available on equalityhumanrights.com. Publicauthorities for the purposes of the duty are defined in section 2 of this guide. It will beof interest to staff right across public authorities, but particularly those involved inpolicy-making, business planning, procurement, human resources, grant-making,governance and scrutiny. The guide will also assist those who have an interest in thework of public authorities such as service users, voluntary bodies, unions, andequality organisations.It provides advice to two types of public authority: those that are subject only to thegeneral equality duty, and those authorities that are also subject to the specificduties (‘listed authorities’). The different requirements for both of these bodies areset out clearly throughout this guide.Content of this guideThis guide: Provides an overview of the public sector equality duty Explains what the general equality duty is, what the specific duties are and whothey apply to Suggests a range of steps that public authorities can take in order to comply withthe general and the specific duties. Explains the regulatory framework Includes the full text of the legislation and a glossary of legal terms.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20144

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Wales2.Introduction to the equalitydutyThe public sector equality duty is made up of a general equality duty supported byspecific duties. The general equality duty is set out in section 149 of the Equality Act2010. This is the same for England, Scotland and for Wales and it came into forceon 5 April 2011. The specific duties are created via secondary legislation. These aredifferent for England, Scotland and Wales. The full text of the general equality dutyand the specific duties for England can be found at the end of this guide.The public sector equality duty is the title of the duty, and how it is referred to inthe Equality Act. It consists of the general equality duty which is the overarchingrequirement or substance of the duty, and the specific duties which are intendedto help performance of the general equality duty.The general equality dutyThe general equality duty applies to ‘public authorities’. Further advice about whothis includes is provided in the next section.In summary, those subject to the general equality duty must, in the exercise oftheir functions, have due regard to the need to: Eliminate unlawful discrimination, harassment and victimisation and otherconduct prohibited by the Act. Advance equality of opportunity between people who share a protectedcharacteristic and those who do not. Foster good relations between people who share a protected characteristic andthose who do not.Continued Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20145

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesThese are often referred to as the three aims of the general equality duty.The Equality Act explains that the second aim (advancing equality of opportunity)involves, in particular, having due regard to the need to: Remove or minimise disadvantages suffered by people due to their protectedcharacteristics. Take steps to meet the needs of people with certain protected characteristicswhere these are different from the needs of other people. Encourage people with certain protected characteristics to participate in publiclife or in other activities where their participation is disproportionately low.It states that meeting different needs includes (among other things) taking steps totake account of disabled people’s disabilities. It describes fostering good relations astackling prejudice and promoting understanding between people from differentgroups. It explains that compliance with the general equality duty may involvetreating some people more favourably than others.To comply with the general equality duty, a public authority needs to have dueregard to all three of its aims. When this guide refers to the general equality duty, it isreferring to all three aims, as set out in the Equality Act.Who is subject to the general equality dutySchedule 19 bodiesThe general equality duty applies to the public authorities who are named ordescribed (listed) in Schedule 19, which is part of the Equality Act 2010.1 Examplesof these include local authorities, education bodies (including schools), healthbodies, police, fire and transport authorities, and government departments. Mostpublic authorities specified in Schedule 19 are covered by the general equality dutyin relation to all of their functions. A small number of public authorities are listed asbeing covered by the general equality duty only in relation to certain functions. TheSchedule makes clear who these bodies are.1Schedule 19 of the Equality Act 2010 can be found in Appendix 6 of the Technical Guidance on the PublicSector Equality Duty [ADD LINK]Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20146

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesBodies carrying out public functionsThe general equality duty also applies to other organisations that exercise publicfunctions. This will include private bodies or voluntary organisations that are carryingout public functions on behalf of a public authority. The Act defines a public functionas a function of a public nature for the purposes of the Human Rights Act 1998. Anexample of this would be a private company running a prison on behalf of thegovernment. The company would, however, only be covered by the general equalityduty with regard to its public functions, but not for other work, like providing securityservices for a supermarket.Whether or not an organisation is exercising a function of a public nature depends ona number of factors. These include (among others) whether it is publicly funded, if itis exercising powers assigned to it via legislation, or if it is taking the place of centralor local government. Other factors include: if it is providing a public service, if itsstructures and work are closely linked with the delegating state body, and if there is aclose relationship between the private body and any public authority. Whether aparticular function comes within this definition is ultimately a matter for the courts todecide. If in doubt, you may find it useful to seek legal advice.In this guide, when we refer to public authorities subject to the general equalityduty, this includes Schedule 19 authorities as well as public authorities who arecovered when they carry out public functions.ExceptionsSchedule 18 of the Equality Act sets out limited exceptions to the application of thegeneral equality duty. These relate to certain functions, such as immigration (inrelation to race, religion, age but only in relation to the second aim of theadvancement of equality of opportunity) and judicial functions. A small number ofbodies that would otherwise be covered by the duty because they carry out publicfunctions are specifically excluded from being subject to the duty. This includes theHouse of Commons and the Security Service. Further information on this can befound in Schedule 18.2 Another exception sets out that the duty on age does not2Schedule 18 of the Equality Act 2010 can be found chedule/18Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20147

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Walesapply to education and service provision in schools or in relation to children’s homes.The Government has the power to vary the exceptions in Schedule 18. Publicauthorities and others can keep abreast of any changes to the law via theCommission’s website.Protected characteristicsThe general equality duty covers the following protected characteristics: age(including children and young people), disability, gender reassignment, pregnancyand maternity, race, religion or belief, sex and sexual orientation. People who areconsidering, undergoing or have undergone gender reassignment are referred to inthis guide as transsexual people. Definitions of all of these characteristics are set outin the glossary (Appendix 3 to this guide).The three aims of the duty apply to all protected characteristics apart from marriageand civil partnership, which is only relevant to the first aim (eliminatingdiscrimination). Thus a body subject to the duty must have due regard to the need toeliminate discrimination where it is prohibited under the Equality Act 2010 because ofmarriage or civil partnership in the context of employment.The ban on age discrimination in services and public functions came into effect on 1stOctober 2012. As the ban does not extend to people under 18,3 this limits the scopeof the duty to have due regard to the need to eliminate ‘unlawful discrimination’ underthe first aim of the duty (although it does not limit the other two aims).Purpose and benefits of the general equality dutyThe broad purpose of the general equality duty is to integrate consideration ofequality and good relations into the day-to-day business of public authorities. It is anintegral part of the mechanisms for fulfilling the requirements of the Equality Act 2010.If a public authority does not consider how a function can affect different groups indifferent ways, the function may not meet its own objectives. For example, a smokingcessation programme may not be fully effective if it does not take into account thedifferent marketing tools that have the most impact on people of different ages. Thiscan contribute to greater inequality and poor outcomes. The general equality duty3A ban on age discrimination in associations, commenced at the same time, does not exclude under 18s.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20148

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Walestherefore requires organisations to consider how they could positively contribute tothe advancement of equality and good relations. It requires equality to be consideredin decision-making, in the design of policies and in the delivery of services, includinginternal policies, and for these issues to be kept under review.Compliance with the general equality duty is a legal obligation, but it also makesgood business sense. An organisation that is able to provide services to meetthe diverse needs of its users should find that it carries out its core businessmore efficiently. A workforce that has a supportive working environment ismore productive. Many organisations have also found it beneficial to draw ona broader range of talent and to better represent the community that they serve.Compliance with the general equality duty should also result in better informeddecision-making and policy development, and better policy outcomes. Overall,compliance can lead to services that are more appropriate for users and more costeffective. This can improve satisfaction with public services.The specific dutiesThe specific duties were created by secondary legislation in the form of the EqualityAct 2010 (Specific Duties) Regulations 2011 (see Appendix 2). The specific dutiesare different in England, Scotland and Wales. This guide relates to the specific dutiesfor England (and non-devolved public authorities in Scotland and Wales). Insummary, each listed authority is required to:1.Publish information to demonstrate its compliance with the general equality duty.This needed to be done for the first time by 31 January 2012 and at leastannually thereafter. Schools and pupil referral units were required to do this forthe first time by no later than 6 April 2012. This information must include, inparticular, information relating to people who share a protected characteristicwho are: its employees, and people affected by its policies and practices.Public authorities with fewer than 150 employees are exempt from therequirement to publish information on their employees.2.Each listed authority (including schools and pupil referral units) must prepareand publish one or more objectives that it thinks it needs to achieve to furtherEquality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-20149

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Walesany of the aims of the general equality duty. This needed to be done for the firsttime by 6 April 2012 and at least every four years thereafter. The objectivesmust be specific and measurable.Both the equality information and the equality objectives must be published in amanner that is accessible to the public. They can be published as a separatedocument, or within another document such as an annual report or a business plan.The Commission has published guides for public authorities on equality objectivesand on equality information. These can be found on our website.Purpose of the specific dutiesThe purpose of the specific duties is to help listed authorities improve theirperformance on the general equality duty, by improving their focus and transparency.However, complying with the specific duties does not necessarily ensure that anauthority is having due regard to the aims of the general equality duty across all of itsfunctions. See section 4 of this guide for advice on the steps you can take to complywith the general equality duty.Who is subject to the specific dutiesMany authorities that are subject to the general equality duty are also covered by thespecific duties. These listed authorities are named or described in Schedules 1 and 2of the specific duties regulations.Summary of key dates 5 April 2011 general equality duty came into force 31 January 2012 listed authorities (except schools and pupil referral units)required to publish equality information 6 April 2012 schools and pupil referral units required to publish equalityinformation 6 April 2012 all listed authorities (including scho ols and Pupil Referral Units)required to publish equality objectivesEquality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201410

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Wales3. What the law requiresThe general equality duty is not prescriptive about the approach a public authorityshould take in order to comply with their legal obligations. The specific duties arelimited to requirements about publishing equality information and objectives.The following principles, drawn from case law on the public sector equality duty,explain that in order to properly have due regard to the general equality duty aims,each public authority should keep in mind that: Those who exercise its functions must be aware of the general equality duty’srequirements. Compliance with the general equality duty involves a consciousapproach and state of mind. General regard to the issue of equality is notenough to comply. The duty places equality considerations, where they arise, at the centre of policyformulation, side by side with all other pressing circumstances, howeverimportant these might be. The duty is on the decision maker personally in terms of what he or she knewand took into account. A decision maker cannot be assumed to know what wasin the minds of his or her officials giving advice on the decision. Each aim of the duty must be considered. The requirement to have due regardto the need to advance equality of opportunity is a separate obligation, inaddition to the need to avoid unlawful discrimination. The general equality duty must be complied with before and at the time aparticular policy is under consideration, as well as at the time a decision is taken.A public authority subject to the general equality duty cannot satisfy the generalequality duty by justifying a decision after it has been taken. A public authority must consciously think about the need to do the things set outin the general equality duty as an integral part of the decision-making process.Having due regard is not a matter of box ticking. The duty must be exercised insubstance, with rigour and with an open mind in such a way that it influences thefinal decision. There should be evidence of a structured attempt to focus on thedetails of equality issues.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201411

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Wales A public authority must have sufficient evidence on which to base considerationof the impact of a policy or decision. It will need to consider whether it hassufficient information about the effects of the policy, or the way a function isbeing carried out, on the aims set out in the general equality duty. A public authority must take responsibility for complying with the general equalityduty in relation to all functions to which the general equality duty applies.Responsibility for the general equality duty cannot be delegated to externalorganisations that are carrying out functions on its behalf. A public authority must consciously consider the need to comply with the generalequality duty, not only when a policy is developed and decided upon, but alsowhen it is being implemented. The general equality duty is a continuing one, sopublic authorities may need to review policies or decisions in light of the generalequality duty, for example if the make-up of service users changes. Although a public authority is not legally required to keep records of itsconsideration of the aims of the general equality duty in making decisions, it isgood practice to do so and it encourages transparency. If it is challenged it willbe difficult to demonstrate that it has had due regard to the aims of the generalequality duty if records are not kept.The general equality duty applies to the exercise of all public functions. The dutyapplies to all of the decisions made in the course of exercising public functions, notjust to policy development and high-level decision-making. To ensure compliancewith the duty at all levels of decision-making, including in an individual case, theremust be arrangements to integrate it properly into the day-to-day activities of thosebodies to which it applies.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201412

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and Wales4. Putting the general equalityduty into practiceThis section sets out a suggested approach for compliance by public authoritiessubject to the general equality duty. This takes case law principles into account.a. Establishing the relevance of the duty to your functionsThe general equality duty applies to public authorities, whatever their size.Compliance should be appropriate to the size of the authority and to the nature of itsfunctions. The functions of a public authority include all of its powers and duties. Thismeans everything it is required to do as well as everything it is allowed to do.Examples of this include: policy decisions, individual decision-making, budgetarydecisions, public appointments, service provision, statutory discretion, employmentof staff and procurement of goods.To ensure that you are having due regard to the aims of the general equalityduty, consider whether and the extent to which the duty is relevant to thefunctions you carry out. The duty will be relevant for some functions in relation tomost or all of the protected characteristics, for example, employment functions. Thedifferent aims of the duty may be relevant for some functions but not others, or to theneeds of people with some protected characteristics, but not to others. For example,elimination of discrimination and the advancement of equality for disabled people willbe relevant to your IT policies and practices but fostering good relations is unlikely tobe. In practice, you are likely to focus more on functions that have the most effect onthe public (or a section of them) or on your employees (or a section of them).Examples of this include a public-facing service like a local authority advice service,or staff training policies in a hospital. Remember that having regard to the aims ofthe general equality duty is no less important when the numbers of people with aprotected characteristic are small, especially where the potential impact on thatgroup is significant.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201413

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesThere is no prescribed process for determining or documenting relevance but it willbe helpful if you consider all the reliable evidence you have about the actual or likelyimpact of your functions. If you do not have sufficient evidence to enable you todetermine relevance, consider gathering more evidence. Assessing whether the dutyis relevant will require some analysis or assessment and should be more than justguess work, but it should not be a burdensome task. Staff that are familiar with anarea of work would ideally be involved in any assessment of relevance. Once youhave established the relevance of the duty to the different functions you perform, youwill be better able to prioritise your efforts.Because the duty is a continuing duty and your functions may change in the future, itis useful to keep records of your findings. You may find it helpful to publish yourfindings to help the public understand what your organisation does and its degree ofrelevance to the duty. The general equality duty continues to apply to you if you havecontracted out a function. It also applies to the allocation (or withdrawal) of funding tothe voluntary sector.Remember: Establishing relevance to the aims of the general equality duty is a means ofhelping you to prioritise your efforts to comply, it is not an end in itself. If you have little qualitative or quantitative evidence about the effect of afunction, engagement with people with different protected characteristics can behelpful.b. Collecting and using equality informationWhat the general equality duty requiresHaving due regard to the aims of the general equality duty requires publicauthorities to have an adequate evidence base for their decision-making. Collectingand using equality information will enable them to develop a sound evidence base.Case law has made clear that public authorities should ensure that they haveenough relevant information to hand about equality issues to make informedchoices and decisions, and to ensure that this is fully considered before and at thetime decisions are taken. See section 3 above for further information about caselaw principles.Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201414

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesCollecting and using equality information will help you to identify equality prioritiesand to understand the impact of your proposals and decisions on people withprotected characteristics. It will help you to set useful objectives and measureprogress against them. It can help you to base your priorities and decision-makingon sound evidence rather than assumptions or stereotypes. It is not an end in itself –it will help you to identify ways to eliminate discrimination, advance equality, andfoster good relations. Some authorities will already have experience of collecting andusing information across most of the protected characteristics, but for manyorganisations at least some of this will be new. The Commission has issued adetailed guide to Equality information and the equality duty which is on our website.What information should be collected?The information that different authorities will need to collect to inform their decisionsunder the general equality duty will vary widely between different sectors. This willdepend on a number of factors, which will be particular to your organisation and thefield in which you operate. Public authorities already hold a wide range of informationabout their employees, services and other functions such as enforcement, statutorydiscretion or planning. This includes functions that are contracted out.There may be functions or protected characteristics for which you do not haveinformation, for example about potential service users and the barriers they face.Engagement can help you to fill gaps and establish how accurate your information is.Before deciding whether to put in place arrangements to gather relevant informationthrough equality monitoring, consider: Why you want the information. Only collect information that is relevant and thatwill actually be used. . Whether the information you need is already available from other sources. Isthere national data you could use? How easy or difficult it will be to get complete information. How its potential accuracy and completeness will affect its usefulness. The process you might use to gather information and how you will ensure thedata remains confidential and anonymous (see page 24 for more on anonymiseddata).Continued Equality and Human Rights Commission · www.equalityhumanrights.comLast revised 07-201415

The Essential Guide to the Public Sector Equality Duty: England and Non-Devolved Public Authorities in Scotland and WalesThe following steps may help you to plan your information collection: Consider what information you already have for your relevant functions. Identify any relevant information gaps. Use ane

public sector equality duty came into force on 5 April 2011. There are five England/GB guides giving advice on the duty: 1. The essential guide to the public sector equality duty 2. Equality objectives and the equality duty 3. Equality information and the equality duty 4. Meeting the equality duty in policy and decision-making 5.

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