The Public Sector Equality Duty (PSED)

Public Sector Equality Duty


There is a general duty on public bodies to have due regard to three ‘needs’ when exercising their public functions:

  • Eliminate discrimination
  • Advance equality of opportunity
  • Foster good relations


Background

The public sector equality duty has its foundation in the public inquiry into the murder of black teenager Stephen Lawrence in 1993.

It was created by the EA 2010 and replaced the separate and already existing race, disability and gender Equality Duties.  It also seeks to harmonise and extend the duty so that it covers all protected characteristics.

It applies to all ‘relevant Protected Characteristics’ but to a more limited extent in the case of marriage and civil partnership

It applies to all public authorities and those discharging public functions ( which is the same definition of public authority as in the Human Rights Act – carrying out functions of a public nature)

The duty applies to all their functions, but should be applied appropriately to their size and functions and includes the functions relating to formulating policies and decisions made in applying policy.

In order for everyone to have equality of opportunity there is a need to remove artificial barriers, such as prejudice or failure to respond to specific needs.  The second need recognises this by requiring bodies to have due regard to the need to remove or minimise disadvantage, take steps to meet  different needs and encourage participation.

Due regard means consciously considering the need to do these three things and how much regard depends on the circumstances. 

Compliance with the PSED means that public authorities should exhibit:

  • Better informed policy/ decision making
  • Better understanding of needs of service users – better quality of services able to meet varied needs
  • Better targeting of policy, resources and regulatory powers
  • Better results and greater confidence in public services
  • More effective use of talent in the workforce
  • Reduction in discrimination


Specific Duties

The Scottish Specific Duties Regulations came into force on 27 May 2012.

These regulations have been amended twice – in 2015 and again in 2016. You need to read all three sets of Regulations together.

the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012

the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2015 

the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2016 

In summary, the specific duties for all listed bodies in Scotland comprise the following:

  • Mainstreaming equality
  • Equality outcomes
  • Assessment and review
  • Employment information
  • Gender pay gap information
  • Equal pay statement
  • Procurement
  • Scottish Ministers duty
  • Publication duty

The purpose of the specific duties is to help the listed authorities perform their general duty. They put in place specific obligations that will help them comply with the general duty.

Mainstreaming equality

Each Local Authority is required to produce a report on progress to ensure its duty to pay due regard to the needs in the general duty are integral to the exercise of its functions

This is called a mainstreaming report and the duty to prepare one is designed to encourgae embedding equality in policies, procedures, systems, and business planning by all staff and at all levels

The report must include a breakdown of employee information and show how the Authority is using this information to better perform the general duty


Equality outcomes

Each Authority is required to prepare a report on equality outcomes every four years, and publish a report about progress to achieving them two years after first publishing and then every two years thereafter.

The report is intended to focus on results/ changes that the Authority wants to achieve

In the course of setting equality outcomes they must take reasonable steps to involve people with Protected Characterisics and consider relevant evidence


Assess and Review

The Regulations impose a duty to assess and review policies and practices which in effect means everything the Authority does.  The duty extends to all proposed and current activities that they do

They must assess the impact of policies and practicesagainst the needs of service users and consider all relevant evidence in so doing and additionally must take into account the results of the assessments and reviews when making decision and/or finalising policy

They are also required to publish the results.

The Authority has a discretion to decide what to assess but they should consider whether assessment is necessary and relevant, and what the likely impact on people with Protected Characteristics would be.

The other duties imposed have less applicability for SDS, but for completeness, the Authority must gather specific information about employees and use it to ensure services are appropriate.  They must publish gender pay gap information and publish an equal pay statement including women and men, disabled people and different racial or ethnic groups

Scottish Ministers are subject to the same duties and to publish proposals for activity to enable listed authorities to better perform the general duty at least every four years.




PSED remedies

You can rely on the public sector equality duty to challenge policies or decisions by a public authority which you think discriminate against you or disadvantage you because of who you are. The appropriate means of redress would be as follows:

Complaint
This should always be the first thing to consider.  Before lodging a complaint, think what it is that you wish to achieve by your complaint; an apology or some action to put things right for example, and how urgent is the need to achieve the result.

The Complaints Handling Procedure should be used, (see later for details) and it is almost always worthwhile considering whether some informal discussion will achieve what you want.

The Role of the Equality and Human Rights Commission

You may be able to refer your complaint to the Equality and Human Rights Commission. As part of their enforcement powers, the Commission can take action against a public authority if they've failed to comply with the public sector equality duty.

However, you should be aware that if you make a complaint to the Equality and Human Rights Commission it doesn't stop time running for taking legal action. If you want to take legal action you need to make sure you're not running out of time as there are strict time limits for going to court.

The Commission can conduct an assessment into the extent to which, or way in which, a body has complied with its general duty.

Following an assessment, if the authority are found to have failed, the Commission can issue compliance notice, including an action plan to comply. If the Authority fail to comply with the notice, the Commission can ask for a court order requiring compliance


Legal Action

If a complaint is not appropriate, either because you cannot achieve the result that you rtequire or perhaps because there is a degree of urgency to either stop something happening or to instigate something that should be happening, then it may be appropriate to consider legal action.

You can only use the public sector equality duty to challenge a decision or policy if you're someone who's protected under the Equality Act.


Judicial Review

Judicial review can only be used against a public authority.

You can only make an application for judicial review if there are no other ways of challenging a decision. If you don’t have a separate right of appeal or you’ve exhausted your rights to appeal you can use judicial review.

You should always take legal advice from a solicitor before consiodering Judicial Review and remember the following important points:

  • Actions are lodged in the Court of Session
  • There is a 3 month time limit for lodging the claim
  • Expense -  there may be considerable costs.  Even if you get Legal Aid, you can be liable for the costs of the other party if you lose
  • There are limited remedies open to the Court so even if your claim is successful it may not produce the result you wanted to achieve.  For example after a successful Judicial reviewthe Court can quash the decision meaning the Authority have to repeat the decision making process, ensuring compliance.  This may not however result in a different end result.

Last modified: Sunday, 11 August 2019, 6:04 PM