The public sector equality duty

In exercising their duties public sector bodies must ‘have due regard’ to the promotion of equality, stemming from the protected characteristics laid down in the Equality Act 2010.

This content applies to Scotland

General duties

From 6 April 2011 public authorities must have ‘due regard’ to the public sector equality duty set down by section 149 of the Equality Act 2010 (‘the 2010 Act’). Public authorities must take into account the following when performing their functions;

  • the elimination of conduct prohibited by the 2010 Act, such as discrimination, harassment and victimisation

  • the advancement of equality between people with a certain protected characteristic and those without the protected characteristic

  • aiding good relations between people with a certain protected characteristic and those without the protected characteristic. [1]

This duty applies to local authorities in the context of acting as a housing and homelessness support providers. The duty also applies to bodies who are not public authorities but who ‘exercise public functions’. [2] In fulfilling their duty to advance equality between people with a protected characteristic and those without public bodies, or bodies exercising public functions, should pay particular attention to;

  • making an effort to remove or minimise disadvantages suffered by people with a particular protected characteristic

  • meeting the requirements of people who have a particular protected characteristic where those requirements are different to the requirements of someone without that protected characteristic

  • promoting the inclusion of people with a protected characteristic in areas of public life or some activity where participation by persons with that protected characteristic in that area or activity is low. [3]

Meeting the needs of disabled persons where their needs are different to non-disabled persons includes taking action to take into account disabled persons’ disabilities. [4] Where a public body is looking to aide good relations between people with a protected characteristic and those without, the public body should take into account the requirement to tackle prejudice and encourage understanding between the different groups. [5] It is acknowledged that some aspects of the implementation of this duty may require public bodies to treat certain groups more favourably than others, however this should not involve taking action prohibited by the 2010 Act. [6]

Specific duties

In addition to the general duties conferred by section 149 of the 2010 Act the Scottish Ministers also have the power to impose specific duties on public authorities in the form of requiring them to publish ‘equality outcomes’. [7]

Public authorities

The general duty applies to all public authorities listed in Part 3 of Schedule 19 to the 2010 Act and to organisations carrying out public functions. This includes local authorities and will also cover housing associations who are exercising a public function. The 2010 Act defines a ‘public function’ as function of a public nature for the purposes of the Human Rights Act 1998. [8]

Requirement for Equalities Impact Report

In Scotland there are additional regulations which place specific duties on public authorities to enable them to meet the PSED. One of these requirements is that public authorities must assess the impact of applying a proposed new or revised policy or practice against the needs mentioned in section 149(1) of the Act. [9] This is commonly known as an 'Equalities Impact Assessment'. 

A court found that a local authority had acted unlawfully when they closed a day centre for adults with disabilities because they failed to carry out an Equalities Impact Assessment prior to making the decision and also because they failed to consult with the users of the centre. The court ordered that the decision to close the day centre be quashed and a declarator was issued that the decision to close was unlawful. [10]

Last updated: 12 June 2020

Footnotes

  • [1]

    s.149(1)(a)-(c) Equality Act 2010

  • [2]

    s.149(2) Equality Act 2010

  • [3]

    s.149(3) Equality Act 2010

  • [4]

    s.149(4) Equality Act 2010

  • [5]

    s.149(5) Equality Act 2010

  • [6]

    s.149(6) Equality Act 2010

  • [7]

    s.153 Equality Act 2010

  • [8]

    s.150(5) Equality Act 2010

  • [9]

    reg. 5 Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 SSI 2012/162

  • [10]

    McHattie v South Ayrshire Council [2020] CSOH 4