There are a number of pieces of legislation which make it unlawful to act in a particular way or reach a particular decision where it would be discriminatory.
The Equality Act 2010 (and regulations under it) contain prohibitions on discrimination on grounds of protected characteristics in the exercise of most public functions.
A decision may be unlawful if it fails to have due regard to the need to eliminate unlawful discrimination and promote equality of opportunity.
- The Scotland Act 1998 reserves the subject matter of equal opportunities to the UK Parliament, with the exception of the encouragement of equal opportunities by, and the imposition of duties on, the Scottish Government and Scottish public authorities to ensure that their functions are carried out with ‘due regard’ to the need to meet equal opportunities requirements.
- Specific provisions of equalities legislation also impose duties on public authorities to evidence that they have shown due regard to certain matters. The public sector equality duties for race, gender and disability require public authorities to undertake equality impact assessments to ensure that the implications of decision-making, both positive and negative, for different groups in society have been considered.
- Decisions must therefore be taken with due regard for the need to:
- eliminate unlawful discrimination and harassment on the grounds of the protected characteristics
- promote equality of opportunity between men and women
- promote equality of opportunity and good relations between persons of different racial groups
- promote equality of opportunity between disabled persons and other persons
- take steps to take account of disabled persons’ disabilities (even where that involves treating disabled persons more favourably than other persons)
- promote positive attitudes towards disabled persons
- encourage participation by disabled persons in public life.
Failure to do so may lead to a decision being struck down.
The duty is not a duty to achieve the elimination of discrimination or the promotion of equality of opportunity. It is only a duty to have regard to the need to achieve these goals.