Out-Law Guide | 01 Nov 2021 | 4:32 pm | 3 min. read
The Public Sector Equality Duty (PSED) is a duty imposed on all UK public bodies by section 149 of the Equality Act 2010, to take equalities considerations into account when exercising any of their functions and taking decisions.
It is important for public bodies to comply with this statutory duty. A failure to comply with it amounts to an unlawful action, and it is one that is commonly raised as grounds for a judicial review claim. In such a case, the court may quash the decision taken by the public body, so that the body cannot proceed with its intended course of action unless it re-runs its full decision-making process in a way that complies with the PSED.
The duty has a wide scope of application, applying to all functions of almost all public bodies in the UK, including central and local government, and non-governmental bodies.
The duty imposed by section 149(1) of the Equality Act 2010 on public authorities is one requiring them, in the exercise of their functions, to have due regard to the need to:
The relevant protected characteristics that section 149 of the Equality Act covers are age; disability; gender reassignment; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
The duty has a wide scope of application, applying to all functions of almost all public bodies in the UK, including central and local government, and non-governmental bodies. It also applies to any other individual or organisation, if they are exercising functions of a public nature.
The PSED is not a duty to achieve a substantive result. Rather, it is a procedural duty on a public body to have due regard to the need to achieve the three equality objectives as part of its decision-making process. The duty does not necessarily require the decision-maker to choose the outcome that most favours one or more of the equality objectives.
The decision-maker must give clear consideration to precisely what the equality implications are when balancing the factors to reach a decision, and they must recognise the desirability of achieving the equality objectives. Ultimately, it is for the decision-maker to decide what weight the objectives should be given in the light of all relevant factors.
If the decision is challenged by judicial review, then provided the court is satisfied that proper and conscientious consideration of the PSED has taken place, the court will not interfere with the decision-maker’s judgment of how much weight should be given to the various factors informing the decision.
The decision-maker must recognise the desirability of achieving the equality objectives. But ultimately, it is for the decision-maker to decide what weight the objectives should be given in the light of all relevant factors.
The PSED rests on the shoulders of the decision-maker personally, and cannot be delegated. Compliance depends on what the decision-maker personally knew, and what they took into account. They cannot be assumed to know what their officials knew or took into account when advising them.
It is essential that the duty is fulfilled before and at the time when a particular policy (or action, such as determining an application of any sort) is being considered and decided. If equality objectives are only considered after the decision has been taken, the decision-maker cannot be said to have had regard to them in taking that decision.
The PSED is a continuing duty, so it cannot be filed away and forgotten after being considered in early decisions on a programme or project. The PSED will need to be revisited and any assessment of the equality implications updated as necessary if circumstances change, proposals evolve, or there are further stages of decision-making on the programme or project.
The courts will not expect to see a full Equality Impact Assessment in every case that comes before them. They have emphasised in a number of cases that they will take a realistic and proportionate approach to evidence of compliance
The PSED does not expressly require evidence of how the duty has been taken into account in the decision-making process, but the courts have found that recording the steps taken by the decision maker in seeking to meet the statutory requirements is an important evidential element in demonstrating discharge of the duty. Documenting how proper regard has been paid to the PSED can significantly reduce the scope for a successful judicial review challenge.
There is no obligation for a public authority to produce an Equality Impact Assessment (EqIA) that contains a detailed analysis of how the decision will impact on equalities and sections of the population with relevant protected characteristics.
However, it is established good practice for a decision-maker to keep records showing evidence of compliance with the duty. Preparing an EqIA for inclusion in the papers considered by the decision-maker is the gold standard for compliance, and can be of great assistance to the decision-maker in making an informed decision.
The courts will not expect to see a full EqIA in every case that comes before them. They have emphasised in a number of cases that they will take a realistic and proportionate approach to evidence of compliance, depending on the context and timing of the decision being taken, and its impact on equalities.
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