Public Sector Equality Duty and Key Implications of the Equality Act 2010 for Public Authorities
Posted On: 16 January 2012
Author: Mungo Bovey QC
Mungo Bovey QC was a guest speaker at LSA's seminar in October 2011 on the topic of the 'Equality Act 2010 - one year on', which explored the impact of the Act and legal and practical issues which have arisen since it came into force. Below is his paper from this event.
Public Sector Equality Duty and key implications of the Equality Act 2010 for Public Authorities
Mungo Bovey QC
1. Section 149 of the Equality Act 2010 is in the following terms:
149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
pregnancy and maternity;
religion or belief;
(8) A reference to conduct that is prohibited by or under this Act includes a reference to—
(a) a breach of an equality clause or rule;
(b) a breach of a non-discrimination rule.
(9) Schedule 18 (exceptions) has effect.
2. This section came into effect on 5th April 2011. The exceptions in schedule 18 relate to the fields of education, immigration, judicial work, Section
149(2) does not apply to the Parliaments of Scotland Wales or the UK or the secret services in relation to the works of the parliaments.
3. As with much of the rest of the Act, the provision is not entirely new but is a reworking of pre-existing duties under previous legislation.
4. Although the Parliaments of the UK, Scotland and Wales have the power to impose specific duties in addition to those in section 149, on 8 March 2011, the Scottish Parliament's Equal Opportunities Committee voted against introducing the duties proposed to them under this power. The Equality and Human Rights Commission, Scotland has produced interim non-statutory guidance.
The pre-existing duties
5. The pre-existing Public Sector Equality Duties (PSED) are to be found in section 71 of the Race Relations Act 1976 (as amended), section 76A of the Sex Discrimination Act 1975 and section 49A of the Disability Discrimination Act 1995 (as amended). All three PSEDs require public authorities to give due regard to the need
(i) to eliminate unlawful discrimination and harassment in the respective fields of race, sex and disability;
(ii) to promote equality of opportunity between those with a protected characteristic and others;
in addition the Race and Disabilities Duties include the need
(iii) to promote good race relations; and
(iv) to take steps to take account of disabled people's disabilities even where that involves treating disabled people more favourably than others, and to promote positive attitudes towards disabled people and to encourage participation by them in public life.
6. Because of the similarity of duties, many of the English cases cross-refer between the Acts when interpreting the duties. In some cases, all the duties are considered.
(Continued....For full article please click on the link at the top of the page).