Public Sector Equality Duty

The public sector equality duty was created under the Equality Act 2010, and came into force on 5 April 2011.

The duty requires public authorities to take a proactive and organised approach to tackling institutional discrimination, and aims to mainstream equality into public bodies in practical ways.

The protected characteristics covered by the duty are age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief, and sexual orientation. The duty also covers marriage and civil partnerships, with regard to eliminating unlawful discrimination in employment.

The public sector equality duty has a general duty which sets out requirements for all public authorities and those bodies exercising a public function, and specific duties, which place additional requirements on listed public authorities.

For clarity, a ‘public function' is one defined in the Human Rights Act 1998, and private and voluntary sector organisations carrying out such a function must meet the requirements of the general duty in respect of that function.

General duty

The general equality duty requires public authorities, in the exercise of their functions, to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct;
• Advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and
• Foster good relations between people who share a protected characteristic and those who do not.

Information about implementing the general duty, including principles from case law on the previous duties, can be found in the Equality and Human Rights Commission guidance, Essential guide to the public sector equality duty: A guide for public authorities (Scotland).

Specific duties

The specific duties in Scotland were created by secondary legislation in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, and came into force on 27 May 2012. New regulations were introduced in 2015 and 2016, the former bringing additional listed authorities into the scope of the duties, and the latter reducing the threshold for gender pay gap reporting and the publication of equal pay statements, and introduce a new requirement on a number of listed public authorities to publish the gender composition of their boards and to produce succession plans to increase board diversity.

The purpose of the specific duties in Scotland is to help those authorities listed in the regulations in their performance of the general duty. It should be noted that different specific duties apply to public authorities in Wales, and different specific duties again apply to public authorities in England.

Compliance

The Equality and Human Rights Commission is the regulator of compliance with the public sector equality duty. Other audit bodies and regulators also have a role to play in ensuring compliance with the full range of anti-discrimination law.

What do employers need to do to comply with the specific duties?

To meet the requirements of the specific duties, public authorities must undertake a range of actions. These are:

• Report on mainstreaming the equality duty.
• Publish equality outcomes and report on progress against these.
• Assess and review policies and practices.
• Gather information on the composition of its employees, on recruitment, development, and retention of people, with respect to, in each year, the number and relevant protected characteristics, and use and publish this information.
• Publish gender pay gap information.
• Publish statements on equal pay.
• Consider award criteria and conditions in relation to public procurement.
• Publish a board diversity succession plan.

Close the Gap's Public Sector Equality Duty: guidance for publishing information on gender and employment provides information on what authorities must do to meet the requirements of the public sector equality duty with regard to gender and employment. This includes information on:

• Publishing employment information (as it relates to equal pay);
• Publishing gender pay gap information; and
• Publishing a statement on equal pay.

Further reading on what the duty requires can be found in the Equality and Human Rights Commission publication Essential guide to the public sector equality duty: A guide for public authorities (Scotland).

The EHRC has also published guidance on setting equality outcomes, using evidence, involvement of groups with protected characteristics, equality impact assessment, and mainstreaming.